Dave, J. —This is a second appeal by Mst. Jadav against the judgment of the learned District Judge, Alwar, dated the 24th August, 1956.

2. The facts giving rise to it are that respondent No. 1 Ram Swarup obtained a money decree against respondent No. 2 Jai Govind and also against the assets of Jagdish Prasad, deceased husband of the appellant, which were in her possession. In execution of the said decree, the decree-holder got attached one-half portion of a Haveli saying that it belonged to Jagdish Prasad judgment-debtor. The appellant filed an objection petition under sec. 47 C.P.C. It was averred by her that the portion of the Haveli which was attached belonged to her personally and not to her husband. She based her claim on a will which was said to have been executed in her favour on 20.8.52 by her grand-mother-in-law Mst. Bhagwati, who according to the appellant, was the then owner of the property attached. The appellants claim was contested by the decree-holder. The executing court came to the conclusion that the execution of the will by Mst. Bhagwati in favour of Mst. Jadav was not proved and the objection petition was dismissed. Aggrieved by that order dated 17.3.55, Mst. Jadav filed an appeal in the court of the learned District Judge, Alwar- The learned Judge did not enter into the question whether the will was made by Mst. Bhagwati in Mst. Jadavs favour and whether the property belonged to Mst. Bhagwati. He dismissed the appeal on the preliminary ground that the will set up by the appellant was not probated and was not therefore admissible in evidence under sec. 213 of the Indian Succession Act. In support of his view the learned Judge relied upon. Balkishan vs. Prabhu (1) and dismissed the appal.

3. The respondents have not cared to appear in this Court and therefore the appeal has been heard exparte.

4. Learned counsel for the appellant has urged that the learned District Judge has committed an error in law in holding that the will was not admissible in evidence under sec. 21 3 of the Indian Succession Act. It is pointed out by learned counsel that the learned Judge failed to notice the provisions of section 213 sub-sec. (2) and that he was misled since he noticed only sub-sec. (1). The contention raised by learned counsel appears to be correct. Sec. 213 of the Indian Succession Act runs as follows:-

"213. (1) 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.

(2) This section shall not apply in the case of wills made by Mohammedans, and shall only apply in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the "Classes" specified in "clauses (a) and (b) of section 57".

It is clear from the plain reading of sub-sec.(l) of sec. 213, that it prohibits all persons from establishing in any Court of Justice their right as executor or legatee without obtaining a probate of the will or letters of administration under which the right is claimed from a court of competent jurisdiction in India. Sub-sec. (2) however makes it quite clear that sub-sec. (1) would not apply in the ease of wills by Mohammedans. It further lays down that sub-sec. (1) would apply only in the case of wills made by a Hindu, or a Buddhist, or a Sikh or a Jain if the will or wills are covered by classes specified in clauses (a) and (b) of sec.57.* In other words, so long as a particular will is not coveted by clauses (a) and (b) of sec. 57, the question of the application of sub-sec. (1) of sec. 213 does not arise. Now, sec. 57 runs as follows.-

"57. The provisions of this part which are set out in Schedule-III shall, subject to the restrictions and modifications specified therein, apply

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the

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