A suit for a declaration of title as executor or legatee is not barred by the provisions of the Indian Succession Act, 1925, and the plaintiff is entitled to sue for a mere declaration against the persons denying or interested in denying his right to the property in the hands of third parties.

S.K.Kapur, J.

1. Malik Kirpal Singh, the brother of Malik Anup Singh plaintiff, died on 18-1-1959. The petitioners in this Court are his widow, son, the defendants in the suit filed by Malik Anup Singh for a declaration, out of which the present revision petition has arisen. The plaintiff in the suit claimed that Malik Kirpal Singh made a will, dated 7-1-1959, whereby he disinherited the defendants and gave all the property to his younger brother Malik Inder Singh. It is further said that Malik Inder Singh applied for grant of succession certificate to collect the assets of Malik Kirpal Singh. The defendants also made a similar application and when both the applications were pending, Malik Inder Singh died on 11-12-1963. The plaintiff has claimed that he is entitled to all the assets left by Malik Inder Singh, who appointed him as the sole legatee under a registered will, dated 7-12-1963. That property, according to the plaintiff, would also include the property inherited by Malik Inder Singh from Malik Kirpal Singh. In these circumstances, the plaintiff has prayed for a declaration that, "It be declared that Malik Kirpal Singh did execute a will, dated 7-1-1959, in favour of Malik Inder Singh and that Malik Inder Singh did execute a will, dated 7-12-1963, in favour of the plaintiff and by this derivative title, the plaintiff is entitled to collect the debts and dues as mentioned in Para No. 3 of the plaint." The defendants raised various objections, which resulted in framing of seven issues. Issues Nos. 1, 2, 3 and 4 were treated as preliminary issues and all decided against the defendants.

2. Mr. G. S. Vohra, learned counsel for the petitioners, has challenged the correctness of the said judgment, dated 24-7-1965. First, he says that the suit is barred by reason of the provisions of the Indian Succession Act, 1925 , and the only remedy available to the plaintiff was to obtain letters of administration or probate to the alleged will. He has mainly relied on Sections 213, 214, 227, 263, 264 and 273. According to him, the scheme of the whole Act shows that the only remedy for a person placed in the position of the plaintiff could be to obtain a probate and the filing of the suit is excluded. Placing particular emphasis on Sections 213 and 214, Mr. Vohra says that no right as executor or legatee can be established in any Court, unless a Court of competent jurisdiction has granted probate of the will, which Court, according to Mr. Vohra, is the Court of the District Judge. It is further said that by virtue of Section 214 no decree can be passed against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof except on production of probate or letters of administration evidencing the grant to him of administration to the estate of the deceased. Reliance has been placed on Ganshamdoss Narayandoss V/s. Gulab Bi Bai, AIR 1927 Mad 1054 (FB) and Kesar Singh V/s. Smt. Tej Kaur, (1961) 63 Pun LR 473: (AIR 1961 Punj 509). In Ganshamdosss case, it was held that even a defendant cannot use an unprobated will as a defence. That decision was based on Section 187 of the Indian Succession Act of 1865, which corresponds to Section 213 of the present Act. That judgment can have no applicability to the present case inasmuch as Sub-section (2) of Section 213 excludes the applicability of Section 213 (1) in the case of wills made by Muhammadans and wills made by any Hindu, Buddhist, Sikh or Jain where such wills as are of the classes specified in Clauses (a) and (b) of Section 57. Reference to Clauses (a) and (b) of Section 57 would show that Section 213 will only apply (a) to wills made within the territories which on the first day of September 1870, were subject to Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature of Madras and Bombay, and (b) to all