1. The applicant is the second Defendant in the suit. The suit was instituted by the first non-applicant (hereinafter referred to as the non-applicant) claiming the bulk of the property of their deceased father R.S. Sunderlal on the basis of a will executed by him.

The non-applicant applied to the District Judge, Hoshangabad, for probate of the will (Civil Suit No. 4 of 38-1-A of 1940). The present applicant along with another brother contested the will as a caveator. The application was rejected by the District Judge. But on appeal probate was granted. (See Miscellaneous Appeal No. 121 of 1943, D/- 16-8-1950.) After that decision the present suit for possession on the basis of the will was instituted.

2. The applicant wanted to contest again in the present suit that the genuineness of the will and validity of its execution and attestation (vide para 4 of the written statement). Further the applicant pleaded that the judgment of the probate Court was not a judgment in rem and the judgment was in any case without jurisdiction because it was not necessary to obtain probate of the will in the Central Provinces with respect to the property situate in the province (para 5). The learned trial Judge framed certain preliminary issues of which issues Nos. 9 (A) to (D) covered the pleas raised by the applicant.

3. According to the learned trial Judge, though it was not obligatory to apply for probate of a will executed by a Hindu in this State, when such an application has been made and decided by the Court having jurisdiction in accordance with Section 264 of the Succession Act, all the consequences flowing from such a decision follow.

As the Defendants were parties to the suit and contested, they cannot be permitted to challenge the execution and the validity of the will again. The learned Judge was of opinion that the contest was barred both by Section 11, Code of Civil Procedure and Section 41, Evidence Act.

4. The learned Counsel for the applicant contends that the decision in the earlier proceedings for probate was without jurisdiction and if the decision was without jurisdiction, it could not have any effect as provided in Section 41 of the Evidence Act or Section 11, Code of Civil Procedure. According to the applicant, it was not necessary for Hindus exempt in cases falling under Sections 57(a) and 57(b) of the Succession Act to apply for probate of a will.

It is pointed out that the rule enacted in Sub-section (1) of Section 213 that 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 is not made applicable in the case of wills made by any Hindu where such wills are not of the class specified in Clauses (a) and (b) of Section 57.

Reference is also made to Sections 4, 20(2)(b), 29, 58 and 212 of the Succession Act in support of the contention that the whole scheme of the Succession Act is not to govern the case of Hindu wills except those brought in its purview by Section 57(a) and (b).

5. We are unable to accept the contention of the applicant. An interesting and useful account of the history relating to Hindu wills and the grant of probate in respect of them is given by Nrisinhadas Basu in his introduction to the Indian Succession Act, 3rd Edition, pp. xvi-xxii.

The Hindu Wills Act (XXI of 1870) applied certain portions of the Succession Act to the wills of Hindus made on or after the first day of September, 1870, within the territories subject to the Lieutenant -Governor of Bengal or the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay and to all such wills made outside those territories and limits in so far as this related immovable property situate within those territories or limits.

Prior to the Hindu Wills Act, th