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

1. This appeal on a certificate granted by the Allahabad High Court arises out of a suit filed by Mrs. Bose (Plaintiff-respondent) by which she claimed a declaration that she was the owner of house No. 195 Ghasiarimandi Road, Lucknow, or in the alternative a declaration that she was the owner of two thirds of the house. The previous history of litigation with respect to this house is relevant and may be set down. The house originally belonged to Dr. Miss Mitter, who died in July 1925. At the time of her death she left three sisters, namely, the appellant Mrs. Judah, the plaintiff-respondent Mrs. Bose and the defendant-respondent Mrs. Momin, and her mother Mrs. Mitter. The plaintiffs case was that Dr. Miss Mitter had made a will in favour of Mrs. Momin in April 1921 by which she gave the whole house to her. Mrs. Momin in turn made a gift of the house to the plaintiff who thus became the owner of the house. The defence of the appellant on the other hand was that Dr. Miss Mitter had executed a will in June 1925 bequeathing the house to her mother Mrs. Miter. Subsequently the mother made a will in favour of the appellant in April 1930. It appears that no probates of the two alleged wills by Dr. Miss Miner of April 1921 and June 1925 were taken out. It appears further that Mrs. Minter was living in this house when she died in 1934. On her death three wills alleged to have been made by her were propounded one in favour of each of her three daughters, namely, Mrs. Bose, Mrs, Judah and Mrs. Momin. Applications for letters of administration were made by the three sisters each claiming that the will in her favour was the last will of Mrs. Mitter, and among the property left by Mrs. Minter by the three wills was included the house in dispute. Further the house in question was also shown in the applications made by the three sisters for letters of administration of the alleged wills in their favour. Letters of administration were granted to the appellant while the applications of Mrs. Bose and Mrs. Momin were dismissed. This was followed by appeals to the then Chief Court of Oudh. The said Court rejected the appeals of Mrs. Bose and Mrs. Momin and thus their applications for letters of administration on the basis of the wills propounded by them stood finally dismissed. The Chief Court however allowed the appeal against the grant of letters of administration to the appellant and dismissed her application also. The matter was then taken before their Lordships of the Privy Council by the appellant and in 1945 the appeal of the appellant was allowed and the decree of the Chief Court was set aside and that of the trial judge granting letters of administration to the appellant was restored.2. In the meantime, however, certain other events had transpired. In l942, Mrs. Bose filed a suit for partition. This suit was still pending when the Judicial Committee of the Privy Council allowed the appeal of the appellant in March 1945. So in December 1945 Mrs. Bose made an application to withdraw the partition suit with permission to bring a fresh suit, and she was allowed to do so on the condition that she would pay the costs of the appellant before filing the fresh suit. In July 1946 Mrs. Momin made a gift of her interest in the house in dispute in favour of Mrs. Bose. Thereafter in the same year viz., 1946, Mrs. Bose filed an application for grant of letters of administration of the will alleged to have been executed by Dr. Miss Mitter in Mrs. Momins favour. This was objected to by the appellant and certain preliminary issues were framed in 1947; but eventually Mrs. Bose did not pursue this application for letters of administration and it was dismissed in 1948.3. In the meantime, Mrs. Bose had filed an application for the revocation of the letters of administration granted to the appellant but this was also dismissed. About the same time in September 1946, the present suit was filed by Mrs. Bose praying for reliefs already) set out. Eventually this suit was the only proceeding which was pursued to the end by Mrs. Bose,4. In the trial court the case based on the will of Dr. Miss Mitter was given up, and the plaintiff-respondent only pressed her alternative prayer for a declaration that she was entitled to two-thirds of the house, The trial court however found that there was a will by Dr. Miss Mitter in favour of her mother, though no probate or letters of administration were taken out in that behalf, The trial court also found that Mrs. Mitter made a will in favour of the appellant and that letters of administration, as already indicated, were granted to the appellant with respect to Mrs. Mitters will by the judgment of the Privy Council in 1945. The trial judge therefore held that the appellant was entitled to the house by virtue of the letters of administration granted to her of Mrs. Mitters will. It repelled the contention of the plaintiff-respondent that as no letters of administration were taken out of the will of Dr. Miss Mitter in favour of Mrs. Mitter, no right to the house could be established by the appellant on the basis of the letters of administration granted to her. The trial court also held that the suit was barred by the principles of res judicata and estoppel. It therefore dismissed the suit.5. The plaintiff-respondent then went in appeal to the High Court, and the main contention raised on behalf of the respondent before the High Court was that in view of S. 213 of the Indian Succession Act, No. 39 of 1925, (hereinafter referred to as the Act), the appellant could not claim any right to the house in dispute as the will of Dr. Miss Mitter in favour of her mother was neither probated nor letters of administration were obtained with respect thereto. The High Court accepted this contention of the plaintiff-respondent. The High Court also negatived the other contentions raised on behalf of the appellant and allowed the appeal in part. The High Court, pointed out that on the death of Dr. Miss Mitter her three sisters and mother were alive and they were entitled equally to the property left by her. But as the share of Mrs, Mitter must be deemed to have been willed away to the appellant and as the share of Mrs. Momin must be deemed to have been gifted to the plaintiff-respondent, the plaintiff-respondent was entitled to half the house. The High Court therefore gave her a declaration that she was entitled to a half share in the house in dispute. As the decree was one of reversal the appellant applied for and obtained a certificate to appeal to this Court; and that is how the matter has come before us.

Reasoning: 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