The main legal point established in the judgment is that a suit seeking a declaration of the validity of a will must comply with the provisions of S.213 of the Indian Succession Act and the proviso to S.34 of the Specific Relief Act 1963.

The question involved in this appeal is whether the suit brought by the appellant for a declaration of the validity and genuineness of a will is hit by either S.213 of the Indian Succession Act. or the proviso to S.34 of the Specific Relief Act, 1963.

2. The facts of the case are as follows : Deceased Yovan Samuel was the brother of the plaintiff-appellant. He is stated to have executed Ext. P2, a will dated 23-6-1958, registered as Will No. 9 of 1958. Yovan Samuel died on 31-5-1959 about a year after the execution of Ext. P2 will. The appellant was granted probate by the District Court, Trivandrum in Probate Case No. 2 of 1960. No notice had been given to the defendant-respondent who is admittedly a nephew of the deceased being the son of a deceased brother. On a caveat being presented by the defendant, the probate was revoked with liberty to initiate fresh proceedings. The plaintiff did not file any fresh application for probate but instituted a suit for a declaration that Ext. P2 will is a validity executed document and that Ext. D17, will D/- 20-12-1957 set up by the defendant is invalid. The suit was contested by the defendant who contended that Ext. P2 will was brought into existence by misrepresentation, undue influence and coercion. The defendant also challenged the maintainability of the suit for declaration without a prayer for consequential relief. The Principal Subordinate Judge, Trivandrum decreed the suit with costs. In appeal, the defendant contended that the suit was barred in view of S.213 of the Indian Succession Act. The appellate court upheld the plea and dismissed the suit. The second appeal is filed challenging the above decree.

3. Section 213(1) of the Indian Succession Act reads :

"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 letters of administration with the will or with a copy of an authenticated copy of the will annexed."

The contention put forward is that inasmuch as the order in the probate proceedings stands cancelled, it is not open to the appellant to institute, proceedings on the basis of the will. The remedy open to him is to initiate fresh proceedings under the Indian Succession Act for grant of a probate. The appellant, however, would contend that Section 213 is a bar only for establishing a claim under the will. The suit in the present case was not instituted to establish the rights of the appellant either as an executor or a legatee under the will but only for a declaration that Ext. P2 will is a properly executed document Reference was made in the course of the hearing to the decision In State v. Devassy Lonappan (AIR 1956 Trav. Co. 215). Though the bar under Section 213 of the Indian Succession Act was raised by the appellant in that case, the High Court held that as the plaintiff instituted the suit in his own right, there was no question of non-compliance of Section 213 of the Indian Succession. Ext. In Caralapathi Chunna Cunniah v. Cota Nammalwariah ((1910) ILR 33 Mad 91) and Ganta Daniyelu v. Gunti Yesu Ratnam (AIR 1925 Mad 1110) relied on by the appellant, what was held was that a defendant could set up an unprobated will in answer to the plaintiff's claim for testator's property. These, decisions are no longer law in view of the Full Bench decision in Ganshamdoss Narayandoss v. Gulab Bi Bai (ILR 50 Mad 927 : AIR 1927 Mad 1054) which has been approved and followed in Hem Nolini v. Isolyne Sarojbashini (AIR 1962 SC 1471). The Supreme Court held in the latter case that Section 213 of the Succession Act creates a bar to the establishment of rights under a will by an executor or a legatee unless probate or letters of administration of the will have been obtained, and it is immaterial whether the right is claimed as a plaintiff or as a defendant.

4. In Narasayyamma v. Andhra Bank (AIR 1960 Andh Pra 273) cited by the res