The main legal point established in the judgment is that the requirement for probate of a will under S.213(1) of the Indian Succession Act is a substantive bar to establishing a right as executor or legatee, and the subsequent Kerala Amendment Act, 1996, which added 'Indian Christians' to the exemption, was held not to be retrospective.

P.K. Balasubramanyan, J.

1. The appellant before me is the first defendant in a suit for recovery of possession of a building. The building belonged to one Chacko. Chacko let out the building to the first defendant under Ext. A1 dated 18.11.1988. The tenancy commenced from 1.11.1987. It was for a term of 5 years. The rent payable by the tenant was Rs. 750/ - per month. The lessee had the option to determine the lease before the expiry of the term. There was no option to renew in the lessor or in the lessee. The building is situated in an area to which the Kerala Buildings (Lease & Rent Control) Act has not been extended.

2. Chacko, the landlord died in June, 1990. The term of the lease expired on 31.10.1992. The plaintiff, one of the children of Chacko, being his daughter, issued a notice Ext. B2 to the tenant offering to renew the lease for a period of five years in case the tenant was willing to offer the enhanced rent claimed by her. The tenant a Nationalised Bank is seen to have adopted a policy of being penny wise and pound foolish. It offered a meagre enhancement of rent, I must say, without reference to the realities of the situation. The plaintiff naturally did not accept that proposal and issued another notice Ext. B3 dated 15.3.1993 informing the tenant that the rent suggested by the tenant was too meagre and if the tenant were willing to pay rent atleast at the rate of Rs. 2/- per square feet, she would agree to a renewal. The tenant and its officers concerned having adopted what counsel for the plaintiff called an unreasonable attitude in the matter of enhancement of rent, the plaintiff sent another letter Ext. B4 dated 19.4.1993 informing the tenant that she could not accept the sum of Rs. 937/- which was being offered as rent, that she would be accepting rent from the tenant only after a proper rent is agreed to by the tenant. Then the plaintiff filed a suit O.S. 112 of 1994 for eviction of the tenant which she later withdrew with the leave of court with permission to file a fresh suit. Thereafter the plaintiff filed the present suit on 24.11.1994 claiming that she was entitled to recover possession of the building on the expiry of the term on the ground that she has become the exclusive and absolute owner of the building on the strength of a will executed by Chacko, the original owner of the building with whom the tenant has entered into the tenancy arrangement. She also impleaded the other heirs of Chacko, her mother and siblings as defendants 2 to 8 in the suit. The first defendant raised various contentions, one among which was that since the plaintiff was claiming exclusive title to the building on the strength of a will executed by Chacko, the owner of the building, the plaintiff could not establish the right to recover possession of the building in the absence of the probate of the Will. S.213(1) of the Indian Succession Act was put forward as a bar to the entitlement of the plaintiff to claim recovery of possession on the strength of her exclusive ownership over the building. Defendants 2, 6 and 7 filed a written statement admitting the exclusive right claimed by the plaintiff. Defendants 3 and 4 also filed a written statement admitting the Will set by the plaintiff.

3. The Trial Court held on issue No. 4 that since the plaintiff was not claiming a declaration of title with respect to the property allotted to her under the will and was only seeking recovery of possession from a tenant of the building, it could not be held that she cannot maintain the suit without probate of the Will. The Trial Court further held that a decree for eviction of the first defendant tenant, a Nationalised Bank would result in hardship to the tenant as well as to the people of the locality and since the plaintiff did not have a case that she bona fide needed the building for her own occupation, the suit need not be decreed. Thus, the suit was dismissed by the Trial Court. The plaintiff filed an appeal. The lower appellate