Mrs. Hem Nolini Judah (Since Deceased)
and After Her Leg Vs. Mrs. Isolyne Sarojbashini Bose & Ors  INSC 59
(16 February 1962)
16/02/1962 WANCHOO, K.N.
CITATION: 1962 AIR 1471 1962 SCR Supl. (3)
Administration-Establishment of right-Legatee-Other persons claiming under
legatee -Bar of claims-Probate proceedings-Title-Not determined-Res-judi-
cata-Estoppel-Indian Succession Act, 1925(39 of 1925), ; 213 (1)-Code of Civil
Procedure, 1908 (Act, 5 of 1908) 8. 11- Indian Evidence Act, 1872 (1 of 1872),
One Dr. Miss Mitter who owned a house died
leaving her mother and three sisters. The plaintiff respondent filed -a suit
for a declaration that she was the owner of the house.
Her case was that the deceased gave the house
to Mrs. Momin another sister) by a will and Mrs. Momin in turn gifted the
(house to the plaintiff. The case of Mrs. Judah, the defendant appellant was
that Dr. Miss Mitter had bequeathed the house by a will in favour of her mother
who in turn bequeathed the house to her by a will. Admittedly no probate of
either of the wills alleged to have been made by Dr. Miss Mitter was taken out.
The another died and it was alleged 295 that she had executed three wills one
in favour of each of three daughters. Applications were filed by each of the
daughters for letters of administration each claiming that the will in her
favour was the last will of Mrs. Mitter.
Each of the alleged wills include the house
in question among the properties of the deceased. The application of the was
granted while the other two application were Appeals were filed by the two
sisters whose application were rejected. The appellate court while rejecting
their claims for granting letters of administration in favour of the present
appellant. The, appellant thereupon appealed to the Privy Council and; the
Privy Council allowed her appeal.
The respondent then filed the suit out of
which the present appeal has arisen claiming a declaration that she was the
owner of the house in whole or to the extent of two-thirds.
The trial court found the defendant-appellant
became the owner of the house under the will of Mrs. Mitter and the suit of the
plaintiff-respondent was barred by res-judicata and estoppel. The
plaintiff-respondent took the matter -in appeal to the High Court. The High
Court held that as the will of Dr. Miss Mitter in favour of her mother was not
probated the latter did not acquire the house under the will and therefore the mother
along with her three daughters took equal share in the house. Since the
appellant got the mother's share under her will and she had got one fourth
share of the house in her own right she was entitled to one half share of the
house in all. The appellant has come upto this Court on a a certificate granted
by the High Court.
Apart from the pleas of res-judicata and
estoppel the appellant contended that it was not necessary to obtain probate of
the will of Dr. Miss Mitter in favour of her mother in order to success. fully
claim the house under the will of her mother in her favour.
Held, that s. 218 of the Indian Succession
Act is a have to the establishment of any right under a will by an execution or
legatee unless probate or letters of administration have been obtained. This
bar operates irrespective of the fact that the right is claimed by a plaintiff
or a defendant in suit. The bar, is not restricted only to cases in which the
claim is made by a person directly claiming as a legatee of executor but it
applies also to any person who might find in necessary in order to establish
the right of some legatee of executor from whom he might have derived title.
Questions of title are not decided in
proceedings for the grant of probate or letters of administration and therefore
the decision given ill such proceedings cannot operate a 296 res-judicata in
subsequent proceedings relating to the dispute title.
Estoppel can arise as is clear from s. 115
Evidence Act when one person has by his declaration, act, or omission
intentionally caused or permitted another person to believe a thing to be true
and to act on such belief. No estoppel arose in the present case on the facts.
Ghanshamdoss v. Gulab Bi Bai, (1927) I. L. R.
50 Med. 927, approved.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 273 of 1959.
Appeal from the judgment and decree dated
January 17th 1957, of the Allahabad High Court it (Lucknow Bench) at Lucknow in
first Civil Appeal No. 16 of 1950.
Sarjoo Prasad, E. Udayarathnam and S. S.
Shukla, for the appellant.
C.B. Agarwala and D. N. Mukherjee, for
respondent No. 1.
1962. February 16. The Judgment of the Court
was delivered by WANCHOO, J.-This appeal on a certificate granted by the
Allahabad High Court arises out of a suit filed by Mrs. Bose (plaintiff-respondent)
by which she claimed a declaration that she was the owner of house No. IO')
Ghasiari mandi Road, Lucknow, or in the alternative a declaration that she was
the owner of two-thirds of the house. The previous history of litigation with
respect to this house is relevant and may be set down. The house originally
belonged to Dr.
Miss - Mitter, who died in July 1925. At the
time, of her death she left three sisters, namely, the appellant Mrs.
Judah, the plaintiff-respondent Mrs. Bose and
the defendant- respondent Mr. Momin, and her mother Mrs. Mitter. The
plaintiff's case was that Dr. Miss Mitter had made a will in favour of Mrs.
Momin in April 1921 by which she gave. the whole house to her. Mrs. Momia in
turn made a gift of the house 297 to the plaintiff who thus became the Owner of
The defence of the appellant on the other
hand'was that Dr. Miss Mitter had executed a will in June 1925 bequeathing the
house to her mother Mrs. Mitter. Subsequently the mother made a will in favour
of the appellant in April 1930. It appears that no probates of the two alleged
wills by Dr. Miss Mitter of April 1921, and June 1925 were taken out. It
appear,,; further that Mrs. Mitter was living in this house when she died in
1934. On her death three wills alleged to have been made by her -were
propounded one in favour of each of her three daughters, namely, Mrs. Bose,
Mrs. Judah and Mrs. Momin Applications for letters of administration were made
by the three sisters each claiming that the will in her favour was the last
will of Mrs. Mitter, and among the property left by Mrs. Mitter by the three
wills was included the house in dispute. Farther the house in question was also
shown in the' applications Made by the three sisters for letters of
administration of the alleged wills in their favour. Letters of administration
were granted to the appellant while the applications of Airs. Bose and Mrs. Momin
were dismissed. This was followed by appeals to the then Chief Court of Oadh.
The said Court rejected the appeals of Mrs. Bose and Mrs. Momin and thus their
applications for letters of administration on the basis of -the wills
propounded by them stood finally dismissed. The Chief Court however allowed
them against the grant of letters of administration the appellant and dismissed
-her application also. The matter was then taken before their Lordships of the
Privy Council by the appellant and in 1945 the appeal of the appellant was
allowed and the decree of the Chief Court was set aside and that of the trial
judge granting letters of administration to the appellant was restored.
In the meantime, however, certain other 298
events had transpired. In 1942, Mrs. Bose filed a suit for partition. This suit
was still pending when the Judicial Committee of the Privy Council allowed the
appeal of the appellant in March 1945. So in December 1945 Mrs. Boge made an
application to withdraw the partition suit with permission to bring a fresh
suit, and she was allowed to do so on the condition that she would pay the
costs of the appellant before filing the fresh suit. In July 1946 Mrs. Momin
made a gift of her interest in the house in dispute in favour of Mrs. Bose.
Thereafter in the same year viz., 1946, Mrs. Bose filed an application for
grant of letters of administration of the will alleged to have been executed by
Dr. Miss Mitter in Mrs. Momin's favour. This was objected to by the appellant
and certain preliminary issues were framed in 1947; but eventually Mrs. Bose
did not pursue this application for letters of administration and it was
dismissed in 1948.
In the meantime, Mrs. Bose bad filed an
application for the revocation of the letters of administration granted to the
appellant but this was also dismissed. About the same time in September 1916,
the present suit was filed by Mrs. praying for reliefs already set out.
Eventually this suit was the only proceeding which was pursued to the end by
In the trial court the case based on the will
of Dr. Miss Mitter was given up and the plaintiff respondent only pressed her
alternative prayer for a declaration that she was entitled to two-thirds of the
house. The trial court however found that there was a will by Dr. Miss Mitter
in favour of her mother, though no probate or letters of administration were
taken out in that behalf The trial court also found that Mrs. Mitter made a
will in favour of the appellant and that letters of administration, as already
indicated, were granted to the appellant with respect to Mrs. Mitter's will by
290 the judgment of the Privy Council in 1945. The trial judge therefore held
that the appellant was entitled to the house by virtue of the letters of
administration granted to her of Mrs. Mitter's will. It repelled the contention
of the plaintiff-respondent that as no letters of administration were taken out
of the will of Dr. Miss Mitter in favour of Mrs. Mitter, no right to the house
could be established by the appellant 'on the basis of the, letters of
administration granted to her. The trial court also held that the suit was
barred by the principles of res judicata and estoppel. It therefore dismissed
The plaintiff-respondent then went in appeal
to the High Court, and the main contention raised on behalf of the respondent
before the High Court was that in view of s. 213 of the Indian Succession Act,
No. 39 of 1925, (hereinafter referred to as the Act), the appellant could not
claim any right to the house in dispute as the will of Dr. Miss Mitter in
favour of 'her mother was neither probated nor letters of administration were
obtained with respect thereto. The High Court accepted this contention of the
The High Court also negatived the other
contentions raised on behalf of the appellant and allowed the appeal in part.
The High Court pointed out that on the death
of Dr. Miss Mitter her three sisters and mother were alive and they were
entitled equally to the property left by her. But as the share of Mrs. Mitter
must be deemed to have been willed" away to the appellant and as the share
of Mrs. Momin must be deemed to have been gifted to the plaintiff-respondent,
the plaintiff- respondent was entitled to half the house. The High Court
therefore gave her a declaration that she was entitled to a half share in the
house in dispute.' As the decree was one of reversal the appellant applied for
and obtained a certificate to appeal to this Court; and that is how the matter
has come before us.
300 Learned counsel for the appellant has
urged only three contentions before us, namely, (i) that the High Court was not
right in holding that if was necessary to obtain probate or letters of
administration of the will executed by Dr. Miss Mitter in favour of Mrs. Mitter
and that as neither probate nor letters of administration of that will were
obtained it, was not open to the appellant is view of s. 213 of the Act to take
advantage of that will; (ii) that the suit was barred by res judicata and (iii)
that the plaintiff-respondent'was estopped from contesting the title of Mrs.
Mitter to the, property in dispute.
We have already pointed out that though it
was said that Dr. Miss Mitter had executed a will in favour of her mother Mrs. Mitter
in June 1925 bequeathing the house in dispute to her, no probate or letters of
administration were ever obtained by Mrs. Mitter. It is true that Mrs. Mitter
in her turn made a will in favour of the appellant and she obtained letters of
administration of that will. In that will the house in dispute was mentioned as
the property of Mrs. Mitter and was bequeathed to the appellant and in the letters
of administration granted to her this property was mentioned as one of the
proper ties coming to her by the will of her mother. The question therefore
that arises is whether it was necessary before the appellant could take
advantage of the bequest in favour of Mrs. Mitter that letters of
administration of the will of Dr. Miss Mitter should have been obtained by Mrs.
Mitter Section 213 (1) which governs this matter is in these terms :- "
(1) No right as executor or legatee can be established in any Court, of
Justice, unless a Court of competent jurisdiction in India has granted probate
of the will under which the right is claimed, or has granted letter') 301 of
administration with the will or with a copy of an authenticated copy of the
will annexed." This section clearly creates a bar to the establishment of
any right under a will by an executor or a legatee unless probate or letters of
administration of the will have been obtained. It is now well-settted that it
is immaterial whether the right under the will is claimed as a plaintiff or a
defendant ; In either case s. 213 will be a bar to any right being claimed by a
person under a will whether as a plaintiff or as a defendant unless probate or
letters of administration of the will have been obtained: (see Gansham- doss v.
Gulab Bi Bai) (1). But it is urged on behalf of the appellant that this section
Will not bar her because she obtained letters of administration of the will of
her mother Mrs. Mitter under which she is claiming and that it was not necessary
for Mrs. Mitter to have obtained probate of the will of Dr. Miss Mitter in her
favour. Now it is not in dispute that, the grant of probate or letters of
administration does not establish that the person making the -'Will was the
owner of the property which he may have given away by the, will, and any person
interested in the property included in the will can always file a suit to
establish his right to the property to the exclusion of the testator in spite
of the grant of probate or letters of administration to the legatee or the
executor, the reason being that proceedings for probate or letters of
administration are not concerned with titles to property but, are only
concerned with the due execution of the will. Therefore, when the plaintiff
respondent contended in effect that the appellant could not establish her right
to the full ownership of this property on the basis of the will of Mrs. Mitter
because Mrs. Mitter had not obtained probate or letters of administration of
the will of Dr. Miss Mitter, she was really contending that Mrs. Mitter was not
the full owner of this property so that (1) (1927) I.L.R. 50 Mad. 927.
302 she could dispose it off as she willed.
The plaintiff- respondent was thus disputing the title of Mrs. Mitter to
dispose of the entire disputed house by her will on the ground that Mrs. Mitter
was not the sole owner of this house after the death of Dr. Miss Mitter. In
order therefore that the appellant should succeed on the basis of the letters
of administration of the will of Mrs. Mitter which had been granted to her with
respect to this house, she had to show that Mrs. Mitter was the full owner of
this house at the time she made the-will in her favour. Now the appellant could
show this by other evidence; but if the appellant wanted to rely on any will of
Dr. Miss Mitter in favour of Mrs. Mitter, in proof of full ownership of Mrs.
Mitter of this house, it would amount to this that the appellant was saying
that Mrs. Mitter was the owner of the house as the legatee under the will made
by Dr. Miss Mitter. The appellant would thus be asserting the ownership of Mrs.
Mitter of the whole house as a legatee, and this is what sub-s. (1) of s. 213
clearly forbids, for it says that no right as - a legatee can be established
in, a Court of Justice, unless the probate or letters of administration have
been obtained of the will under which the right as a legatee is claimed. It is
true that so far -is the will of Mrs. Mitter in favour of the appellant is
concerned, she has obtained letters of administration of that and she can
maintain her right as -a legatee under that will ; but that will in her favour
only gives her those properties which really and truly belonged to Mrs. Mitter,
that will however does not create title in the appellant in properties which
did not really and truly belong to Mrs. Mitter but which Mrs. Mitter might have
thought it fit to include in the will. Therefore, as soon as the appellant, in
order succeed on the basis of the will in her favour of which she obtained
letters of administration, alleges that Mrs' Mitter was full owner -of the
property able to will it away to her, she had to prove the 303 title of Mrs.
Mitter to the property. Now it that title rests on Mrs. Mitter's being legatee
of Dr. Miss Mitter the appellant will have to prove that Mrs. Mitter bad the
right as a legatee under the will of Dr. Miss Mitter. As soon as the appellant
wants to prove that, s. 213 will immediately stand in her way for no right as
an executor or a legatee can be proved unless probate or letters of
administration of the will under which such right is claimed have been
obtained. The words of s. 213 are not restricted only to those cases where the
claim is made by a person directly claiming as legatee. The section does not
say that no person can claim as a legatee or as an executor unless he obtains
prabate or letters of administration of the will under which be claims. What it
says is that no right as an executor or legateee can be established in any
Court of Justice, unless probate or letters of administration have been
obtained of the will under which the right is claimed, and therefore it is
immaterial who wishes to establish the right as a legatee or an executor.
Whosoever wishes to establish that right, whether it be a legatee or an executor
himself or somebody else who might find it necessary in order to establish his
right to establish the right of some legatee or executor from whom he might
derived title, he cannot do so unless the -will under which the right as a
legatee or executor is claimed has resulted in the grant of a probate or
letters of administration. Therefore, as soon as the appellant wanted to
establish that Mrs. Mitter was the legatee of Dr. Miss Mitter and was therefore
entitled to the whole house she could only do so if the will of Dr. Miss Mitter
in favour of Mrs. Mitter had resulted in the grant of probate or letters -of
administration. 'Admittedly that did not happen and therefore s. 213(1) would
be a bar to the appellant showing that her mother was the full owner of the property
by virtue of the will made in her favour by Dr. Miss Mitter. The difference
between a right 304 claimed as a legatee under a will and a right which might
arise otherwise is clear in this very case. The right under the will which was
claimed was that Mrs. Mitter became the owner of the entire house. Of course
without the will Mrs. Mitter was an equal heir with her daughters of the
property left by Dr. Mitter, as the latter would be taken to have died
intestate, and would thus be entitled to onefourth. It will be seen from the
judgment of the High Court that it has held that the appellant is entitled to
the one-fourth share to which Mrs. Mitter was entitled as an heir, to Dr. Miss
Mitter and granted the plaintiff-respondent a declaration with respect to only
half the house. Therefore, the High Court was right in holding that s. 213
would bar the appellant from establishing the right of her mother as a legatee
from Dr. Miss Mitter as no probate or letters of administration had been
obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The
contention of the appellant on this head must therefore fail.
Turning now to the question of res judicata,
learned counsel for the appellant has been unable to point out any judgment inter
parties in which the question of title to this house has been decided and which
would bar the plaintiff- respondent from raising the question of title which
she has raised in the present suit. As we have already said ques- tions of
title are not decided in proceedings for the grant of probate or letters of
administration. Whatever therefore might have happened in those proceedings
would not establish the title to the house either of the appellant or of Mrs. Mitter.
In particular, learned counsel for the appellant relied on the order of the
High Court dated December 17, 1948, by which the application of the
plaintiff-respondent for letters of administration of the will of Dr. Miss
Mitter was dismissed. In that ease certain 305 preliminary issues were framed
one of which related to estoppel with respect to Mrs. Mitter's right to this
property. What happened in that case was that Mrs. Bose who had made the
application did not appear and thereupon her application was dismissed for that
reason obviously under 0.
XVII r. 2, of the Code of Civil Procedure. In
these cir- cumstances there can be no question of res judicata as -to the title
to the property in dispute. The contention on this head must therefore be
As to estoppel, reliance is mainly placed on
the applications of Mrs. Bose herself for the grant of letters of
administration of a will alleged to have been made in her favour by Mrs.
Mitter. In that application Mrs. Bose had shown the house as if it belonged to
Mrs. Mitter. Her application was as we have already noted dismissed. It may be
that Mrs. Bose in her application for letters of administration showed this
house as the property of her mother Mrs. Mitter; but as we have already said,
proceedings leading to the grant of probate or letters of administration have
nothing to do with titles. Further estoppel can only arise as is clear from s.
115 of the Indian Evidence Act, when one person has by his declaration, act or
ommission intentionally caused or permitted another person to believe a thing
to be true and to act upon-such belief. Therefore before Mrs. Bose can be
estopped from pleading that Mrs. Mitter was not the owner of the entire
property it must be shown that by her showing the house as the property of Mrs.
Mitter in her application for letters of administration she intentionally
caused or permitted the appellant to believe that thing to be true and to act
on that belief It is obvious that the "appellant cannot be said to have
acted in her turn with respect to this 306 house simply because Mrs. Bose said
in her application for letters of administration that the house belonged to
Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters
put forward three separate. wills each in her favour and there was no question
of one sister acting on any representation made by another. We are therefore of
opinion that no question of estoppel arises in this case.
The appeal therefore fails and is hereby
dismissed: No order as to costs.