A decree passed without compliance with section 213 of the Indian Succession Act is without jurisdiction and cannot operate as res judicata in subsequent proceedings.

V. Khalid, J.

1. The rigour of the statutory mandate contained in section 213 of the Indian Succession Act (for short the Act) falls for consideration in this Second Appeal. The defendant-appellant assails the decrees of the courts below on the ground that they have been passed without jurisdiction since the right enforced by the decree was based on an unprobated Will. The plaintiff-respondent support's the decrees with the plea, that the right claimed is not on the strength of the Will but on the strength of the earlier decrees between the parties in which the Will was not questioned.

2. The suit was for a declaration of title and for recovery of possession. Item 1 is a garden land and Item 2 a building standing on it. One Augusthy Thommen had executed Ext. A-4 Will in favour of the plaintiff, who is his son-in-law. The defendant is the son of Kathri, the youngest daughter of Thommen. Under Ext. A-4 the suit properties were bequeathed to the plaintiff, reserving life interest in favour of the testator's wife, Anna and his daughter, Kathri. The testator died in 1115 M.E. His widow was, thereafter, in possession of the property. She was residing in the house with Kathri and her son, the defendant. Anna died on 17th November 1960. The plaintiff, thereupon filed O.S. No. 275 of 1960, in Palai Munsiff's Court, for recovery of possession from Kathri. The matter came up to this Court and this Court in second appeal dismissed the suit, holding that the property could be recovered only after the life-time of Kathri. Kathri died on 4th July 1975. The defendant had been continuing in possession even thereafter. Hence the suit.

3. The defendant resisted the suit contending that he was a tenant, that he had effected valuable improvements and that he was entitled to be compensated for the improvements.

4. The trial court negatived the contentions of the defendant and decreed the suit. In appeal the defendant raised an additional contention that the suit was not maintainable since the Will, of which the suit was laid was unprobated. Hence this second appeal.

5. Although two questions were formulated for consideration in the,memorandum of second appeal, notice was issued only on the first question, which reads as follows:

"Whether the suit on an unprobated Will is maintainable".

6. The trial court considered the plea of tenancy raised and held against the defendant. The claim for value of improvements was also rejected. On the admission by the defendant, that he had no right in the property as per the Will, a decree in terms of the plaint, was passed by the trial court. The maintainability of the suit was not challenged in the trial court.

7. In the appellate court, for the first time, the maintainability of the suit was raised on the ground that the Will was unprobated. The defendant did not press his claim for kudikidappu nor the claim for value of improve?ents before the appellate court. The only point that was considered by the appellate court was whether the plaintiff was entitled to recover possession of the property on the basis of the Will.

8. In support of the defendant's case, reliance was placed upon a judgment of this court reported in Geevarghese Geevarghese v. Issahak George (A.I.R. 1971 Kerala 270). There the Court held that a decree on an unprobated Will could not be passed. The principle enunciated in that judgment was distinguished by the appellate court on the following facts. The defendant's mother Kathri instituted O.S. No. 4 of 1124, in Meenachil Munsiff's Court against the plaintiff herein for realisation of certain amounts due to her on the basis of the Will. Though the suit was dismissed by the trial court it was decreed by the appellate court, as per Ext. A-8 judgment relying upon the Will. The plaintiff herein instituted O.S. No. 275 of 1960 in the Palai Munsiff's Court, for recovery of the property from the defendant's mother basing his claim on Ext. A-4 impleading the present defendant also. The trial court dismis