Title based on unprobated Will is valid.

(Civil Revision Petitions filed under Section 115 of CPC against the common order passed in E.A.No.141/04 in O.S.No.73 of 1983 and E.A.No.154/2004 in O.S.No.79 of 1982, on the file of Principal District Munsif, Nagercoil dated 28.2.2005.)

Common Order

These Civil Revisions are directed against the common order passed by the Executing Court rejecting the applications filed under Order XXI Rule 99 of the Code of Civil Procedure by the present petitioners.

2. The brief facts giving rise to the present Civil Revisions are as follows: -

The disputed property originally belonged to one Santhana Marian, the paternal grandfather of the present petitioner. Said Santhana Marian executed a Will bequeathing the disputed property in favour of his daughter-in-law Maria Soosai Ammal, the mother of the present petitioner. The said Maria Soosai ammal had four sons and three daughters, including the petitioner. The Will had not been probated and no letters of administration had been obtained. On the death of the grandfather in the year 1962, the property devolved upon the father of the petitioner as the Will in question had not been probated. However, Respondent No.1 in the present Civil Revision Petitions, had filed suit for specific performance of the contract against Maria Soosai Ammal, the second respondent in the present Civil Revision Petitions, and obtained a decree. The petitioner claims that since the Will in favour of the present Respondent No.2 had not been probated, the property did not vest with her, and therefore, the decree for specific performance is not binding on the present petitioner, who claims right on the death of his father on 14.7.2000. The Executing Court has rejected the applications filed under Order XXI Rule 99 on the ground that the requirement to obtain a probate has been done away after the amendment to Section 213 of the Indian Succession Act.

3. The main contention raised by the counsel for the petitioner in the present Revisions is to the effect that the decree against Respondent No.2 was a nullity as she had not derived any title on the basis of the Will which has not been probated.

4. Section 213 of the Indian Succession Act, before it was amended, is as follows: -

"213. Right as executor or legatee when established.

(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 Muhammadans, and shall only apply-

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jain where such wills are of the classes specified in clauses (a) and (b) of Section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, insofar as they relate to immovable property situated within those limits."

5. As per the aforesaid provision, before seeking to establish a right on the basis of a Will, the Will is required to be probated. The question is whether in the absence of any probate, the decree recognising any right on the basis of unprobated Will is a nullity.

6. It is not disputed that the decree in question has been affirmed by the High Court in the Second Appeal. The present petitioner is claiming title through his father Jebastian. Such person was in fact examined as D.W.1 on behalf of his wife, the defendant in the two suits in question, namely O.S.Nos.79 of 1982 and 73 of 1983. As D.W.1 he has specifically deposed that he and his wife were living together and even though his wife was ready and willing to perform her part of the con