[This appeal first came on for hearing on 2nd and 3rd September, and 1st December 1926 before their Lordships the Chief Justice and Curgenven, J].

The Chief Justice. -The plaintiff in this case is one Ganshamdoss Narayandoss, and he sued for the recovery of a house No. , Perumal Mudali Street, impleading originally one Saraswathi Bai, who is now dead, and subsequently puttiag on the record Gulab Bi Bai, her legal representative. The property belonged to one Kaveri Bai, and it may be taken for the purposes of this reference that in the absence of a will, the plaintiff, Ganshamdoss Narayandoss, would be entitled to succeed Kaveri Bai in preference either to Saraswathi Bai or Gulab Bi Bai. The claim is resisted on the ground that Kaveri Bai left a will in favour of Saraswathi Bai. That will was not probated, and the question is whether it can be used to defeat the plaintiffs claim.

The plaintiff by paragraph 5 of his plaint alleges that Kaveri Bai died intestate on the 16th of October, 1908.

In my opinion that was an unnecessary allegation. But it resulted in the 1st issue in the suit being framed as follows:

Did Kaveri Bai die intestate as alleged in paragraph 5 of the plaint or after making her last will and testament as alleged in paragraph 3 of the written statement

The learned Judge obviously attached importance to the form of the pleading and the issue, because he says this:

In the present case the plaintiff comes to Court saying that Kaveri Bai died intestate and that he is the heir, under Hindu Law claiming by intestate succession.

In my opinion that burden was not one which lay upon him and the allegation in the pleading was an unnecessary averment. I think that all he had to do was to prove that he was the next of kin of the last owner of the property, Kaveri Bai, and thereupon the burden of proof would be cast upon the defence to show that the defendant had a better title. It would be to my mind wholly wrong in this country to allow the burden of proof to be shifted by a redundant averment in the pleading or by an incautious acceptance of an issue framed upon that averment. I am therefore of opinion that it would be wrong in determining where the burden of proof lies in this case to rest it upon the form of pleading and the issue and that we ought to consider where the burden lies in law.

The learned Judge held that an unprobated will could be used to defeat the plaintiffs claim and reiterated the view which he had expressed on the subject in Shadagopa Naidu v. Thirumalaswami Naidu (18 M.L.T., 129). The doctrine is alleged to be derived from the case of Janaki v. Dhanu Lall (I.L.R., 14 Mad., 454). I do not wish to embarrass the Full Bench by comments on the cases which will be discussed before them. But I think it is very doubtful whether Janaki v. Dhanu Lall (I.L.R., 14 Mad., 454) really supports the proposition contended for though it was taken to establish that proposition in Caralapathi Chunna Cunniah v. Cota Nammalwariah (I.L.R., 33 Mad., 91) [LQ/MadHC/1909/197] I confess myself unable to ascertain what exactly was laid down in Parthasarathy Aiyar v. Subbaraya Gramany (17 L.W., 763). On the other hand, the observations in Lakshmamma v. Ratnamma (I.L.R., 38 Mad., 474) [LQ/MadHC/1913/162] seem clearly to tend in the opposite direction. My own view would be not merely that an unprobated will could not be used to establish title which is clearly forbidden by Sect. 187 of the Succession Act but that it could not be used as a weapon of defence when the onus was clearly thrown upon the defence. But I realize the difficulty created by Sect. 25 of the Succession Act which defines intestacy in the following words:

A man is considered to die intestate in respect of property of which be has not made testamentary disposition which is capable of taking effect

Where the evidence establishes a valid execution of a will, it is difficult to say that an unprobated will is not capable of taking effect, because it is obvious that as soon as probate is obtained it can take effect. The position would then be that the burden would be thrown upon the plaintiff by law, and not by the accident of the way is which he framed his pleading, of proving that the testatrix died intestate and that applying the definition of Sect. 25 this testatrix did not die intestate. The practical inconvenience of putting an executor in the position of being able to refuse to take out probate and keep the presumptive heir-at-law at aims length by an unprobated will requires no comment. In my opinion the matter had better be settled by a reference to a Full Bench and the question referred will be as follows:

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

Curgenven, J. This is an appeal against the judgment of Mr. Justice Kumaraswami Sastri in C S. No. 755 of 1920 on the file of this Court. The property in suit consists of a house and site in Georgetown, Madras, valued, in the plaint at Rs. 12,700. It belonged to one Kaveri Bai, sister of the plaintiffs father, and the plaintiff claimed to recover possession of it as her heir. The claim was resisted by a half-sister of Kaveri Bais named Saraswathi Bait who obtained possession upon Kaveri Bais death in 1908 and who set up a will of Kaveri Bais as the foundation of her title. Saraswathi died during suit, and her sister, Gulab Bi Bai was brought on the record as her legal representative. The learned Judge has found in favour of the will and dismissed the suit, and the plaintiff appeals.

The will was attacked on the grounds (a) that it was not genuine, (b) that it was not executed in accordance with law and (c) that being unprobated the defendant could not rest any claim upon it Point (a) was given up in appeal. Points (b) and (c) remain for consideration.

The document purports to bear the mark of Kaveri Bai, to which is subscribed a declaration that it was

signed by the testatrix and acknowledged by her to be her last will and testament in the presence of us present at the same time who at her request and in our presence and in the presence of each other have subscribed our names as witnesses.

There follow four signatures, the first in order being that of Mr. Seshacharlu, the Vakil who, as the evidence shows, prepared the will. Mr. Seshaoharlu died not long afterwards, and although the genuineness of his signature is fully proved by his clerk, it cannot, I think, be presumed that it amounted to a valid attestation. Neither of the two reputed attestors who have been examined speaks to his presence at the execution of the document, and one would have expected that, had he been present, the word s Mark of Kaveri Bai would have been in his hand. It is not improbable that he signed as the author of the document. Of the other three persons whose signatures appear, two, Rangildoss and Poolji Vias, deposed respectively as defendants 1st and 2nd witnesses. The learned Judge has alluded to the circumstance of Gulab Bi Bais conversion to Muhammadanism as a reason for suspecting that any bias which these witnesses may have would be against her, so that, if evidence of valid attestation of the will can be derived from their statements, it may be accepted with little hesitation. Rangildoss stated that be saw Kaveri Bai put her mark, that be was asked to sign below and that he did so. That constitutes a valid attestation under Sect. 50 of the Succession Act. The account given by the other witness, Poolji Vias, is this: He was called to the house by the executor named in the will, Rancholedose. Kaveri Bai was lying in bed ill. Banoholedoss told him that it was the will of Kaveri Bai, and asked him to attest it. Kaveri Bai also said that he should sign, and he signed. He does not remember whether the testators mark was already there, but it may be i nferred from an answer which he gives to another question that Rangildosss signature was already on the document, and there is Rangildosss evidence that Kaveri Bai put the mark in his presence. Thus it is to be gathered from what Poolji Vias says that Kaveri Bai had already executed the will, that a statement was made to him in her presence that the will was hers, and that both she and her executor asked the witness to attest it and he attested it. It remains for consideration whether this satisfies t he requirement of Sect. 50 that an attesting witness, where he has not actually seen the testator, either by himself or by another under his direction, sign or affix his mark, must have received from the testator a personal acknowledgment of his signature or mark. A personal acknowledgment of execution need not necessarily, I think, be restricted to an express statement to that effect, but may include words or conduct, or both, on the part of the testator which may be construed unequivocally as such an acknowledgment. Here we have not only a statement made in Kaveri Bais presence that the will was hers, and a request to attest itwhich evoked no disclaimer from herbut also her own request to the witness to sign. It appears to me that she thus conveyed to the witness an impression that she avowed execution no less certain than if she had made the avowal in terms. It was thus, by implication, an acknowledgment. It was a personal acknowledgment because the impression was created directly by her own words and conduct. I conclude, therefore, in agreement with the learned Judge, that this witness also validly attested the will, which has thus, so far as execution and attestation are concerned, been established.

The question now remains whether Saraswathi or her legal representative (she died pending suit) can resist the plaintiffs claim without obtaining probate of the will. The plaint alleged that Kaveri Bai had died intestate, and it appears to me that such an allegation was necessary, because under Parts IV and V of the Succession Act an heir-at-law can only succeed in the event of an intestacy. But since there is a presumption that a person dies intestate unless a will be established, it lay upon the defendant to disprove the fact of intestacy by establishing the existence of a will. That, I think, was the course followed in this suit. The defendant proved that Kaveri Bai had executed a will, but that proof was adduced otherwise than by producing probate, and the question is whether, by such proof, the plaintiffs claim is defeated.

By Sect. 25 of the Succession Act, a man is considered to die intestate in respect of property.

of which he has not made a testamentary disposition which is capable of taking effect.

Did Kaveri Bai make such a disposition The answer, I think is clearly yes. She made a valid will, and even though that will be still unprobated, it was, and indeed still is, capable of giving effect to her intentions. That proposition has not been disputed. Thus she did not die intestate, and it appears to me to follow that any claim by an heir who would succeed upon an intestacy must necessarily fail.

So far as I can see, the only way in which the plaintiff could surmount this difficulty would be by showing that the will could not be established against him, in which case the Court would have to infer an intestacy. Recourse for this purpose has been had to Sect. 18

7. This section provides that:

No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction (in British India) shall have granted probate of the will under which the right is claimed.

Clearly this does not amount to saying that a will may not be proved for any purpose otherwise than by producing probate, but only for the purpose of establishing a right as executor or legatee. But it is argued for the plaintiff that title to the property must vest in some one that prima facie it vests in him, that only by proof of a superior title can his title be displaced, and that this section renders such proof inadmissible. His title must therefore prevail.

I would meet this argument by saying that for the defendant to prove title in himself is not indispensable. He may plead:

I may not be able to prove my own title, but it will do if I show that title cannot vest in you, and to do this I have simply to establish the will.

I cannot see that the plaintiff has any answer to this form of defence if, as 1 am disposed to hold, his claim fails upon an adjudication against him upon the issue of intestacy. Once the intestacy has been found against, the plaintiff has no better claim than anyone else to oust the defendant, however infirm or incapable of proof may be her title, and upon this view it would be immaterial whether the defendant was (or represented) an executor or legatee, or was a mere third party or trespasser.

To hold that the intestacy could not be disproved by establishing the unprobated will would be to give Sect. 187 an effect similar to that of Sect. 49 of the Registration Act, according to which a document required to be registered, and which is unregistered, cannot be received in evidence. If that had been intended, I do not see why it was not expressed. It may then be said that the construction which I put upon the statute would lead to very inconvenient results. The argument of course, cannot avail if, as I am compelled to find, the statute is clear. No doubt there may be cases in which an executor who fails to obtain probate causes loss and trouble to others. There being no period of limitation, it is possible for him to postpone indefinitely the settlement of claims upon the estate. On the other hand, the position would hardly be more satisfactory, if, as in a case like the present, the testators wishes could be rendered ineffectual by a mere omission to probate a perfectly good will.

I have not thought it necessary to discuss the case law, as the learned Judge has already done so, and as we have decided to refer the question to a Full Bench. I agree to the terms of the reference proposed.

[This appeal came on for final hearing on 19th and 22ud August, 1927 before a Full Bench constituted as above].

Opinion.

William Phillips, Offg.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 deceased s 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 Gulab s 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 defendant s 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 9

1. 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 45

4. 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 deceased s 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 9

1. The first of these is Lakshmamma v. Ratnamma (1913) ILR 38 M 474 : 25 MLJ 556 [LQ/MadHC/1913/162] 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 , 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 plaintiff and a defendant. There is, however, a remark of Schwabe, C.J., in Parthasarathy Aiyar v. Subbaroya Gramany who, after stating "that a person who in Court has to prove title and has to deduce that title from a will, whether that person is plaintiff or defendant, cannot do so without producing probate," goes on to remark, "This would not prevent a defendant resisting a claim by an heir-at-law by producing and proving a will of which probate had not been granted." This observation must; clearly be read as being limited to cases in which the claim could be resisted without establishing a title under the will. This view has been taken consistently throughout and it is evident that there can be no objection to an unprobated will being proved for certain limited purposes, provided that it is not sought to prove by the will a right thereunder; for this is prohibited by Section 187.

[4] The answer, therefore, to the question referred to us must be that a defendant can rely on an uprobated will, provided that he does not do so in order to establish a right under the will.

[5] As this answer will in no wise dispose definitely of the case before the referring Judges, I think I may add a few words on the facts of the case. The plaintiff is suing as heir-at-law, but he was resisted by the defendants who claim under a will of which no probate has been taken. It is argued that it is a sufficient answer to the plaintiff s case to allege and prove the existence of a will; for in that ease the plaintiff, who would be the heir in case of intestacy, would no longer have any right. This rather ignores one point which, I think, is important, namely, that the plaintiff being the heir under intestacy, which must be presumed until a will is proved, is entitled to succeed to the property, unless it can be shown that his title has been displaced. If the defendant merely proves that a will is in existence and does not prove the terms of that will, that is not necessarily inconsistent with the plaintiff s title. In the first place, the will may not be a valid will and, in the second place, the plaintiff may be a legatee under the will. The mere existence, therefore, of a will does not necessarily displace the plaintiff s title. It is necessary for the defendant to go further and to prove that some one other than the plaintiff has title under the will. This he cannot do by virtue of the provisions of Section 18

7. In the circumstances of the present case, I would there fore hold that the defendant cannot use an unprobated will as a defence.

Beasley, J.

[6] I agree.

Anantakriskna Aiyar, J.

[7] I agree. An argument based on the principle of the plea of Jus tertii was advanced on behalf of the respondent on which I should like to say a few words. I find the principle of Jus tertii referred to in Odgers book on Principles of Pleading and Practice, Chapter VIII, p. 139, Ninth Edition : "If the plaintiff is in possession of any land or goods or can otherwise make out a prima facie title to them, it is not enough for the defendant to show a better title in some third person; he must also show that he acted as agent for such third person at the time he did the act complained of." Thus where a plaintiff makes out a prima facie title in him to the property in dispute, the defendant has to show a better title either in himself or in some third person. If what is stated above be the correct principle of pleading applicable to such cases, it follows that when the plaintiff in the present case shows a prima facie title in himself to the property in dispute--a.- the admitted heir-at-law of the last owner--the defendant has to show a better title either in himself or in some third person (in the words of the learned author quoted above) or "establish a right as legattee" (in the language of Section 213 of the Indian Succession Act, XXXIX of 1925) in himself or in some third person. It seems to me therefore that where the plaintiff s prima facie title to the property is established, the defendant in order to nonsuit the plaintiff should establish the title of the legatee. The general law would seem to be that the defendant s plea of Jus tertii cannot be entertained when he does not state in whom (such) the right resides. The defendant must trace the title to a third party other than plaintiff. A mere suggestion that there may be a third party with better title is nothing (Chandra Kanta Pathak v. Bhagjur Bepari (1909) 1 IC 52

5. It has been held by the Privy Council that "possession is a good title against all the world except the person who can show a better title"--Sundar v. Parbati (1889) LR 16 IA 186 : ILR 12 All. 51 at 56 (PC); Narayna Rao v. Dharmachar (1902) ILR 26 M 514 at 51

7. Similarly a prima facie title made out by the plaintiff to the property in suit is, I think, a good title against all the world except against the person who can show a better title. This prima facie title of the plaintiff has no doubt to be proved by him if it be not admitted by the defendant; but when once plaintiff s prima facie title is admitted or proved, I think it follows that he must succeed unless the defendant is able to displace the plaintiff s prima facie title and prove a better title in some person other than the plaintiff. If such person s rights should happen to be as legatee under a will, since the defendant has to prove such person s rights as legatee, he comes within the scope of Section 213 of the Succession Act, XXXIX of 1925 (Section 187 of the old Act X of 1865) under which "No right as legatee can he established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed". We are not here concerned with that class of cases where no directe title to property is claimed under a will, the will being relied on only to prove an authority to adopt or as containing an admission of the status of some other person--Achyutananda Das v. Jagannath Das (1914) 20 CWN 122; Manuel Louis Kunha v. Jnana Coelho (1908) ILR 31 M 187 : 18 MLJ 158 [LQ/MadHC/1908/15] ; Basunta Kumar v. Gopal (1914) 18 CWN 1136.

[8] My Lord, the learned Officiating Chief justice, has in his judgment discussed the trend of decisions in this Court on the construction of the section. I think that the respondent in the present case has to establish the right of the deceased Saraswathi Bai as legatee of the suit property to displace the prima facie title of the appellant and under Section 213 of the present Act (Section 187 of old Act) she is not entitled to do so unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed. I would accordingly answer the question referred to us in the negative, and hold that the defendant in the present case cannot use the unprobated will as a defence to the suit.