Case: Mrs. Hem Nolini Judah (Since Deceased) And After Her Leg Vs. Mrs. Isolyne Sarojbashini Boseand Others

the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of justice, unless probate or letters of administration have been obtained of the will under which the right is claimed and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration. Therefore, as soon as the appellant wanted to establish that Mrs. Mitter was the legatee of Dr. Miss Mitter and was therefore entitled to the whole house she could only do so if the will of Dr. Miss Mitter in favour of Mrs. Mitter had resulted in the grant of probate or letters of administration. Admittedly that did not happen and therefore S. 213(1) would be a bar to the appellant showing that her mother was the full owner of the property by virtue of the will made in her favour by Dr. Miss Mitter. The difference between a right claimed as a legatee under a will and a right which might arise otherwise is clear in this very case. The right under the will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled to one-fourth. It will be seen from the judgment of the High Court that it has held that the appellant is entitled to the one-fourth share to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted the plaintiff-respondent a declaration with respect to only half the house. Therefore the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must therefore fail.8. Re. (ii).Turning now to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter parties in which the question of title to this house has been decided and which would bar the plaintiff-respondent from raising the question of title which she has raised in the present suit.As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs. Mitter. In particular, learned counsel for the appellant relied on the order of the High Court dated December 17, 1943, by which the application of the plaintiff-respondent for letters of administration of the will of Dr. Miss Mitter was dismissed. In that case certain preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitters right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore be rejected.9. Re. (iii).As to estopel, reliance is mainly placed on the applications of Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. In that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in this case

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. Re. (i).We have already pointed out that though it was said that Dr. Miss Mitter had executed a will in favour of her mother Mrs. Mitter in June, 1925 bequeathing the house in dispute to her, no probate or letters of administration were ever obtained by Mrs. Mitter. It is true that Mrs. Mitter in her turn made a will in favour of the appellant and she obtained letters of administration of that will. In that will the house in dispute was mentioned as the property of Mrs. Mitter and was bequeathed to the appellant and in the letters of administration granted to her this property was mentioned as one of the properties coming to her by the will of hersection clearly creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained. It is now well-settled that it is immaterial whether the right under the will is claimed as a plaintiff or as a defendant; in either case S. 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have beenit is not in dispute that the grant of probate or letters of administration does not establish that the person making the will was the owner of the property which he may have given away by the will, and any person interested in the property included in the will can always file a suit to establish his right to the property to the exclusion of the testator in spite of the grant of probate or letters of administration to the legatee or the executor, the reason being that proceedings for probate or letters o administration are not concerned with titles to property but are only concerned with the due execution of theIt is true that so far as the will of Mrs. Mitter in favour of the appellant is concerned, she has obtained letters of administration of that and she can maintain her right as a legatee under that will; but that will in her favour only gives her those properties which really and truly belonged to Mrs. Mitter, that will however does not create title in the appellant in properties which did not really and truly belong to Mrs. Mitter but which Mrs. Mitter might have thought it fit to include in theTherefore, as soon as the appellant wanted to establish that Mrs. Mitter was the legatee of Dr. Miss Mitter and was therefore entitled to the whole house she could only do so if the will of Dr. Miss Mitter in favour of Mrs. Mitter had resulted in the grant of probate or letters of administration. Admittedly that did not happen and therefore S. 213(1) would be a bar to the appellant showing that her mother was the full owner of the property by virtue of the will made in her favour by Dr. Miss Mitter. The difference between a right claimed as a legatee under a will and a right which might arise otherwise is clear in this very case. The right under the will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled to one-fourth. It will be seen from the judgment of the High Court that it has held that the appellant is entitled to the one-fourth share to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted the plaintiff-respondent a declaration with respect to only half the house. Therefore the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must therefore fail.8. Re. (ii).Turning now to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter parties in which the question of title to this house has been decided and which would bar the plaintiff-respondent from raising the question of title which she has raised in the present suit.As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs.that case certain preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitters right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore be rejected.9. Re.that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in thisright under the will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled toIt will be seen from the judgment of the High Court that it has held that the appellant is entitled to theshare to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted thea declaration with respect to only half the house. Therefore the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must thereforenow to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter parties in which the question of title to this house has been decided and which would bar thefrom raising the question of title which she has raised in the present suit.As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs.r, learned counsel for the appellant relied on the order of the High Court dated December 17, 1943, by which the application of thefor letters of administration of the will of Dr. Miss Mitter was dismissed.that case certain preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitters right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore beto estopel, reliance is mainly placed on the applications of Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. Inthat application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in this