1. This is a second appeal of the plaintiffs who had filed a suit against the respondents in the court of the Subordinate Judge, Balotra (Jodhpur). The appellants had claimed that they were the nearest relatives of Birdi Chand and entitled to succeed to his property of which, they alleged, the respondents had taken wrongful possession. The defendants in their written statement alleged that the plaintiffs were not entitled to succeed to the property in dispute and that they were rightfully in possession of the same under a will of the deceased Birdi Chand. Both the lower courts have dismissed the plaintiffs suit and the plaintiffs have now come up in second appeal to this Court.

2. The counsel for the appellants tried to raise the objection that it was not proved that the will had been properly executed inasmuch as Birdi Chand was not proved to have been in full possession of his senses at the time of making the will. As no such objection had been taken either in the written statement or in the memorandum of first appeal, this objection was not allowed to be raised because it rested on a question of fact.

3. The learned counsel for the appellants further argued that the courts below had erred, when they held, that it was not necessary for the defendants to have obtained probate of the will in question. He argued that Sec. 213 of the Marwar Succession Act was very clear and under it no right to any property of a deceased person as executor or legatee could be established in any court of justice, unless a court of competent jurisdiction had granted probate of the will under which the right is claimed, or had granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. The learned counsel has drawn our attention to the decisions of the Madras and Calcutta High Courts reported in A. I.E. 1927 Madras 1054 (F. B.) & 1942, Calcutta 402. The counsel for the respondent has, on the other hand, placed his reliance on older rulings of these Courts and argued that the defendants respondents need not have obtained any probate of the will. According to him the—defendants respondents could defeat the plaintiffs title by merely proving that there was a will of the deceased in existence because of which the plaintiffs were not entitled to succeed to the property of the deceased Birdi Chand. In our opinion, the contention of the counsel for the appellants must prevail. In 1927 Madras 1054—50 Madras 927, the officiating C. J. had answered the first question in the reference to the effect that a defendant could rely on an unprobated will, provided that he did not do so in order to establish a right under the will but further remarked as follows:—

"The plaintiff is suing as heir at law, but he was resisted by the defendant, who claimed under a will of which no probate has been taken. It is argued that it is a sufficient answer to the plaintiffs case to allege and prove the existence of a will; for in that case the plaintiff, who would be the heir in case of intestacy, would no longer have any rights. This rather ignores one point which, I think, is important, namely, that the plaintiff being the heir under intestacy, which must be presumed until a will is proved, is entitled to succeed to the property, unless it can be shown that his title has been displaced. If the defendant merely proves that a will is in existence and does not prove the terms of that will, that is not necessarily inconsistent with the plaintiffs title. In the first place, the will may not be a valid will and in the second place, the plaintiff may be a legatee under the will. The mere existence, therefore, of a will does not necessarily displace the plaintiffs title. It is necessary for the defendant to go further and to prove that some one other than the plaintiff has title under the will. This he cannot do by virtue of the provisions of Sec. 187. In the circumstances of the present case, I would, therefore, hold that the defendant can

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