# A dAta Prodtsh v. Sy1d Mohd. KA.Jn - **Citation:** [1962] Supp. 3 S.C.R. 294 - **Court:** Supreme Court of India - **Decided:** 1962 - **Bench:** P. B. Ga.Je:>Dhagajjirnlirrfe-Leff ers of A rlmin isf7 a! inn -Est alili-'i h nunt of right-l..t:galrr.-Other 111'.rson.~· cla,·niinq under leyrllt:c-JJar of cl11i1ns-l'r0Uate procr.t?rli ngs-Titlr--.\T ot dr.f crniin£d-Rcs-jud-icaJa·-Estopp(/-l nDHAGAJJIrnlirrfe-Leff ers of A rlmin isf7 a! inn -Est alili-'i h nunt of right-l..t:galrr.-Other 111'.rson.~· cla,·niinq under leyrllt:c-JJar of cl11i1ns-l'r0Uate procr.t?rli ngs-Titlr--.\T ot dr.f crniin£d-Rcs-jud-icaJa·-Estopp(/-l nn to bclievr a thing to be true and tr> act on such hcl1ef. No estopprl arose in the prrscnt c:Jse on the facts. Ghanshamduss V, r;,,1,11, u; fl•ti, (1927) I. L. R. 50 Med. 'J27, approved. CrvrL ArPF.LLATJ~ ,fL,msoicnox : Civil Appeal No. 273 of 1959. Appeal from the judgment and decron dated January I it.h 1957, of the Allahauad High Court (Lucknow Bench) 1it LucknDw in firAt Cil'il Appeal No. 16 of 1950 . Sarjoo Pmsad, k. UH Mitter in fav<,ur of Mrs. Mitter, no right to the housn could be established by the appellant on 1 he basis of the l..tters of administration grantul to lier. .The trial court also held that the suit was barred by the principles of res judicata and estoppel. It therefore dismissed the suit. · The plaintiff·respondent then went in appeal . to the High Court, and the main contention rnised on behalf of the respondtnt 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 nnt claim any right to the house in dispute as the will of Dr. Miss Mitter in favour of her mother was neith!'r prubated nor letters of administration were obtained with respect thereto. The Hiirh Court accepted this contention of the plaintiff.respondent. The High Court also negatived the other contentions raised on behalf of the appdlant aud nllowecl tho appeal in part. The High Colli t pointe l out that on the d('ath of Dr. MiEs Mitter her three sisters and mother were alive and they \V<'Je entitled equally to the property left by her. But as th" share of Mrs. Mitter must be de< med to have been willed away to the appellant and as tho sl1a1e of Mrs. Momin must be dcl'mrrl to have been gifted to the plaintiff.respondeJJt, the plaintiff-u,spondent was entitled to half the house. The High Court therefore gave her a declaraLion that she was entitled to a half share in the house in dispute. As tho dei:ree was one of reversal the appellant applied for and obtained a certificate Lo appeal to this Comt; and that is how tμ© matter has come before ~s. 19~2 Mrs.tHem·NoliTl i Judah ' v. M r1 .. JsoJJn• Barajbashini 8011 Wanchoo J. 1962 J!rs. Htm NoFni J"dah .. Mrs. l1ol;rit Sarojbashi111 Bn1t JYanclwo J. 300 SUPHEJIIB COURT ItEPORTS (1962] SUPP. Learnl'h !{02 Sl'PRRME COURT RF.PORTS [1962) SUPP. she could rli8p<>se it of as sho willed. Tho plaintiffl'<'~pnnrlP11t. was thus di~put.ing the tit Io of :\Im . !llitt"r to di.'f'''s·· of r.h., entire disputed house by hrr will on the .~roull'I that Mrs. 'fitter was ncit the sole ow1wr of t-hi8 house ;ifter the de1t.h of Dr. :\IiH> .\Titter. In ''rrl·~r therefore that the appcllnnt should rne01·cd on the l.msi8 of tho lett,)rn of administration ,,f th<' will of .\Irs. ~litter which had been i.:ranted to hn with respfel to t.hi~ house, she had to show that ~frs. lliittn '"as the full owner of this house a.t the time she made the will in her favour. !\ow the app•·llant could show this by other eviWIH,rsl1ip of :Hrs. ~litter of this house, it would amount to this th11t the appelln11t was saying that Mrs. Mitter was the own,~r of t.he houso as t.he legatee under the will made hy Dr. l\Iiss Mitter. The appellant. would tl11rn he asRcrting the ownership of ill rs. :\litter oft h" whole ho us" as a legatee, '.ind this is what snb-s. (I) of s. 213 clearly forbids, for it says that- 110righ1 a~ a legatee can be l'stabliRbed in a Court. of .lust.ice, unless the probutH or letters of ars of administration, alleges that Mrs. Mitter was full owner of the property able to will it away to her, ijhe had to prove the , - 3 S.C.R. SUPREME COURT REPORTS 30il title of Mrs. Mitter to the property. Now it that title rrnts on Mrs. !\fitter's being legatee of Dr. Miss Mitter the appellant will have to prove that Mrs. Mittn had the right r•s a legatee under the will of Dr. Miss Mitter. As soon as the appellant wants to proye that, s. 213 will immediately stand in her way for no right as an executor or a legatee can be proved unless probate or letters of administration of the will under which such right is claimed have been obtained. The words of s. 213 arc not restricted only to those cases where the claim is made by a person directly claiming as kgah e. The secti( n does not say that no pnson can claim as a legatee or as an Pxecutor unless be obtains piabatc or letters of administration of the will under \\hid1 he claims. What it says is that no right as au executor or legateee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under whirh · 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 11cccssary in . order to establish his right to establish the right of some legatee or executor from whom he might derived title, he cannot do so unless the v;ill 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 appel· lant wanted to eshblish 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 theroforo s. 213(1) would be a bar to the appellant showing that her mother was the full owner of the propPrty by virtue of the will made in her favour by Dr. Miss Mitter. The difference between a right 196B Mrs. Hem NOlini Julah · v. Airs. fsolyn~ S arojbashini Bose J.1' anchoo J. 1162 jfrs. Hnn Noli"i Juda/I v. Mrs. l "'1J111 S 1rojliashirii Beat lf'ancl.oo J, ~04 SUPHEME COURT REPoRTS (l!J6~] SUPl'. claim('(! a> rl was that Mm. ~Jitter lw!'ame thP 1mnr.r of thP. entire house. Of ·~ourse, wi1 hout t.hc will ~Irs. i\litter was an rqual ht ir with her d,1ughters of the prope1ty left hy Dr. Mifis ~Itltt>r, as the latter would be taken to have died intestate, and would thUH be entitled to ono· fourth. It will be i;ccn from the judgrn<·nt of tho HiglJ Court that it. has held thnt the appellant is entit.lcd to the one-fourth share to which i\irs. Mitter was cntitkd as an heir to Dr. i\Iiss Mitter and grnntrrl the plaintiff.respondent a dcclarat ion with r<'S[H'd to nuly hnlf the house. Therefor,,, the High Court was 1 igh t in holding that s. 213 would bar the af'pellant from totablishing the right of her mother aH a legatee from Dr. Miss !\'litter as no prt..- bate or lctte sisterR put forward three separate wills each in her f:wour and there was no question of one sister acting on Any representation made by another. 'Ve are therefore Of Opinion that llO question of PS(Oppcl ariRf'8 in this case. The appeal therefore fails and is hereby dismissed: N(• order as to costs. Appeal dismissed. ;\tfS. SOORAJ!lfULL NAGAR:'IIULL "· COM.\IISSIONER OF IXCO:llE-TAX, CALCUTTA (And connected appeal) (~. K. DAS, III. HIDAYATGLLAH and .J.C. SHAIJ, J.T.) Income Tax-Order nf Tribu.nal--Application.s by a.