William Phillips, Kt. Officiating C.J.

1. The question referred to us is : Can a defendant resisting a claim made by the plaintiff as heir-at-law rely in defence on a will executed in his favour at Madras in respect of property situate in Madras when the will is not probated and no letters of administration with the will annexed have been granted?

2. This question deals with the provisions of Section 187 of the Indian Succession Act, X of 1865, which is to the effect that no right as legatee can be proved by a will of which probate has not been taken. It has been held by this Court in Caralapathi Chunna Cunniah v. Cota Nannnalwariah (1909) ILR 33 M 91 that this objecttion to proving by an unprobated will applies only to a plaintiff and it was held "that a defendant is not precluded by that section from relying upon a will as he is not seeking to establish a right as executor or legatee." Janaki v. Dhanu Lall (1891) ILR 14 M 454 was cited as authority for that proposition. On a reference to Janaki v. Dhanu Lall (1891) ILR 14 M 454, with all respect, it seems very doubtful whether any such proposition is there put forward. In that case the 1st defendant had obtained a decree ag