The absence of probate or letters of administration can bar the enforcement of a will, and the payment of Streedhanam can exclude individuals from inheritance under the Cochin Christian Succession Act.

1. This appeal is by the plaintiffs in a suit for partition. The suit properties belonged to Thresia who died on February 14,1960. The 1st plaintiff is her daughter. She had another daughter, Madam - the mother of plaintiffs 2 to 5 - who died on February 12,1947. Thresia had a son, Andrew, who predeceased he on August 9,1951, leaving behind his widow, the 1st defendant and children defendants 2 to 6. Thresia had executed and registered a will, Ext. D4, dated March 1, 1948, devising all her properties to Andrew; but it is conceded that no probate of the will or letters of administration with the will annexed have been taken. Plaintiffs claim that as Andrew predeceased Thresia, the legacy in his favour lapsed and therefore they succeed Thresia as on her intestacy. The defendants relied on the will and contended further that Mariam and the 1st plaintiff have been paid Streedhanam and therefore the plaintiffs are excluded from succession to Thresia's estate. The Court below dismissed the suit. Hence this appeal.

2. The will, Ext. D4, cannot be acted upon to find title to any property because of the injunction in S.213 of the Indian Succession Act. "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." (Mrs. Hem Nolini Judah v. Mrs. Isolyne Sarojbhashini Bose (AIR. 1962 SC. 1471)). The question therefore is of succession under the personal law of the parties, which is conceded to be the Cochin Christian Succession Act, VI of 1097. S.22 of the Act reads:

"Notwithstanding anything in the foregoing provisions of this Act, when a Streedhanam has been given or contracted to be given by the father, mother, paternal grand-father or paternal grand-mother, of a woman, to or in trust for her, neither the said woman nor any lineal descendant of hers as such, shall be entitled to a distributive share in the property of any of them dying intestate, if (1) a brother of the said woman, being a lineal descendant of the intestate, or (2) the lineal descendant of such a brother, survive the intestate."

Counsel contended that to attract this Section there must be proof that the propositus, whose heirship is in question, had paid Streedhanam to the woman concerned. Reliance was had on Thressia v. Ouseph (ILR. 1952 TC. 381). We have gone through that decision but could not find anything therein to support that contention. To us the Section appears clear that, if Streedhanam had been paid to a woman or in trust for her by any of the four relations specified in the Section, viz., father, mother, paternal grand-father or paternal grand-mother, the woman will be excluded from inheritance of all the said four ancestors by her brother or a lineal descendant of a brother. Andrew's children, present defendants 2 to 6, have survived Thresia. The plaintiffs cannot therefore claim inheritance if the 1st plaintiff and Mariam, the mother of plaintiffs 2 to 5, had been paid Streedhanam by their father or mother.

3. That the 1st plaintiff had been paid Streedhanam by Thresia herself is proved by Ext. D7 and is not now disputed. Counsel contended that there is no proof in this case that Mariam had been paid Streedhanam by one of the relations specified in the Section. That she had been paid Streedhanam is conceded in Para.7 of the plaint. Even in his reply, Ext. D8, to the suit notice, the 1st defendant has stated that since Mariam had been married with Streedhanam her children, plaintiffs 2 to 6 are not entitled to share in Thresia's estate and that defence has been reiterated in the written statement of defendants 1 to 6 in the case. The only occasion in which a marriage with Streedhanam would disinherit a woman or her children is what is provided for in S.22 of the Act, quoted above. Therefore the averment in the reply notice and the written statement necessarily implies that such Streedhanam was paid by one of the relatio