The main legal point established in the judgment is that a defendant can rely on an unprobated will, provided that he does not do so in order to establish a right under the will.

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 against the personal representatives of the deceased man who was said to have left a will, and subsequently the deceaseds mother, who would have been his representative in the absence of a will, brought a suit to set aside that decree., It was then held that, "though the executors can establish no right without taking probate, the existence of the will cannot be ignored for all purposes whatsoever." It was also observed "that the decision in Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal (1878) ILR 4 C 342 is applicable, and that the persons, who took possession of Gulabs estate upon his death, were liable to be treated by the creditor (1st defendant) as his representatives even though themselves liable to be dispossessed by the executors on taking out probate." It was, therefore, held that the 1st defendants decree was not a nullity and it was open to him to prove that Ghulab left a will and, therefore, the plaintiff was not a person who could claim to set that decree aside. It was clearly in the minds of the Judges that the executors could establish no right without taking probate, and yet the existence of the will was in the circumstances allowed to be proved. That is not authority for the proposition that a defendant is not precluded from establishing a right under an unprobated will, as was held in Caralapathi Chunna Cunniah v. Cota Nammahvariah (1909) ILR 33 M 91. I am strengthened in this view by the fact that Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal (1878) ILR 4 C 342 was relied upon by the learned Judges in Janaki v. Dhanu Lall (1891) ILR 14 M 454. In that case no question was decided under Section 187 of the Succession Act. It was merely held that a decree having been obtained against the de facto manager of the deceaseds estate, the decree was not a nullity and, even if it cannot be executed against the estate in the hands of the executors when he has taken out probate, it is at any rate sufficient to enable the plaintiff to bring a suit against the executor in order to have the decree satisfied. In fact, the executor had actually obtained probate.

3. There is nothing in Section 187 which would in terms make it applicable only to the case of plaintiffs and not to the case of defendants, and this view has been taken in several cases, in opposition to Caralapathi Chunna Cunniah v. Cota Nammalwariah (1909) ILR 33 M 91. The first of these is Lakshmamma v. Ratnamma (1913) ILR 38 M 474 : 25 MLJ 556 where, however, Caralapathi Chunna Cunniah v. Cota Nammalwariah (1909) ILR 33 M 91 does not appear to have been cited. Again in Parthasarathy Aiyar v. Subbaroya Gramany (1923) 45 MLJ 175, Kumar Chandra Kishore Roy v. Prasanna Kumar Dasi (1910) 21 MLJ 116 and Basunta Kumar v. Gopal (1914) 18 CWN 1136 no distinction is drawn between a p