( 1 ) THIS First Appeal is filed by the original plaintiffs whose suit against the Custodian Evacuee Property the Competent Officer (Evacuee Interest Separation) and six others was dismissed by the learned Extra Assistant Judge Madhya Saurashtra Gondal who decided the suit on preliminary grounds. The suit was for a declaration that the plaintiff are the heirs of one deceased Memon Karim Ibrahim who had property at Upleta. The suit was based on a will said to have been executed by the deceased in favour of plaintiff No. 1 his widow. In the plaint the plaintiffs had stated that in respect of the property there were proceedings before the Custodian of Evacuee Property and also the Competent Officer. The two properties were sold for Rs. 22 500 and Rs. 2050/ -. It is stated in the plaint that these moneys are lying with the Custodian Evacuee Property at Rajkot. The plaintiffs filed the suit for a declaration that they are the sole heirs of the deceased Memon Karim Ibrahim and for an injunction to restrain the Competent Officer and Custodian of Evacuee Property from parting with the moneys realised by them by the sale of the properties of the deceased. Plaintiff No. 1 is the widow of the deceased and plaintiff No. 2 is the son of the deceased. In the written statement it was contended that the deceased had not executed a will that the said will was not legal under the provisions of the Mahomedan Law that the defendants are entitled to their share in the sale proceeds as decided by the Competent Officer; that the suit is premature that the suit could not be filed unless probate was obtained that the Court had no jurisdiction under the provisions of sec. 46 of the Evacuee Property Act and that the Court also had no jurisdiction in view of the provisions of sec. 20 of the Evacuee Interest (Separation) Act. Respondents Nos. 1 and 2 contended that the suit is bad as notice required by sec. 80 Civil Procedure Code had not been given to them.

( 2 ) THE trial Court framed preliminary issues. On these preliminary issues the learned Extra Assistant Judge held that probate should have been taken of the will that the will must be proved before the plaintiffs could have filed the suit on the basis of the said will that the suit is premature that no notice was given as required; by sec. 80 Civil Procedure Code and that the Court bad no jurisdiction. As the findings on the preliminary issues were against the plaintiffs the learned Judge dismissed the suit with costs. The original plaintiffs have now come in first appeal and it is contended that the findings of the learned Judge on the preliminary issues are erroneous and the suit should be ordered to be heard and decided. The questions that arise in this first appeal are whether the trial Court erred in holding (1) that the will must be proved by probate before the plaintiffs could file a suit on the basis of the said will; (2) that notice was necessary under sec. 80 Civil Procedure Code to the Custodian of Evacuee Property and also to the Competent Officer and that as such a notice was not given the suit was bad and; (3) that the Court hat no jurisdiction.

( 3 ) WE agree with the finding of the learned judge that the Civil Court had no jurisdiction to entertain the suit although we do not agree with the findings on the other preliminary issues.

( 4 ) THE first question relates to whether the plaintiffs can file a suit on the basis of a will without obtaining probate of the said will. The absence of the probate of a will is never a bar to entertaining the suit. The suit might fail on the ground that the will is not proved. The question of the proof of a will is a matter of evidence and cannot bar the Court from entertaining the suit. Even as regards the view that probate was necessary the learned Judge appears to have overlooked the provisions of sec. 213 of the Indian Succession Act. Sub-section (1) of that section provides :no right as executor or legatee can be established in an