Shamsher Bahadur, J.
1. This is an appeal by Kesar Singh and others who had applied for the grant of a succession certificate in respect of the estate of Dhan Devi who died on the 31st of March 1959. The appellants claimed to be the collaterals of Ala Singh, husband of the deceased Dhan Kaur. The claim made by the appellants in their application of the 25th of July 1959 did not find favour with the Subordinate Judge who also dealt with the competing claim of Tej Kaur who propounded a will in her favour executed by Dhan Devi. Before the evidence came to be recorded, Guro and Nimo daughters of Chattar Singh a relation of Ala Singh, prayed for the grant of a succession certificate.
2. The claim of the appellants was repelled on the ground that they had not produced any pedigree-table to show their connection with the common ancestor Ram Singh. A request on behalf of the appellants for a further adjournment was not granted by the trial Court. The Court further observed that the claim of the appellants as also of Guro and Nimo for the grant of a succession certificate could not be entertained because Tej Kaur had set up a will of Dhan Devi in her favour. Without examining the contents of the will or asking for its proof, the learned Judge proceeded to grant a succession certificate to Tej Kaur. It is against this order that the appellants Kesar Singh and others have come up in this appeal.
3. There can be no manner of doubt that the order passed by the trial Judge is wholly insupportable. The Court has granted a succession certificate in favour of Tej Kaur whose basis for the claim was a will in respect of which no probate has been sought or granted. Under Sub-section (1) of Section 370 of the Indian Succession Act-
'a succession .....shall not be granted under thisPart with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate.'
Under Section 213 of the Act no legatee can set up a right
'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.'
Tej Kaur claiming under the will of Dhan Kaur should, therefore, either as an executor or a legatee have obtained a probate or letters of administration before a succession certificate could be granted under Section 370. This matter was settled a long time ago by a Full Bench decision of the Madras High Court in Ganshamdoss Narayandoss v. Gulab Bi Bai, ILR 50 Mad 927 : (AIR 1927 Mad 1054). It was held therein that Section 187 of the Indian Succession Act corresponding to S. 213 of the Indian Succession Act, 1925, is a bar to everyone claiming under such a will, whether plaintiff or defendant.
No will could be set up either to assert or defeat a claim on the basis of a will which is not probated and in respect of which no letters of administration had been granted. This authority was relied upon in a recent Division Bench judgment of the Patna High Court in Babulal Mandal v. Abak Bala, (S) AIR 1955 Pat 126, where Sinha J. (now Chief Justice of the Supreme Court) observed thus at page 128 :
'On a plain reading of this section, it is clear that, unless the will has been probated or letters of administration, with the will or with a copy of the will annexed, have been granted, no right under the will can be established by an executor or a legatee.'
4. It is indeed a matter of surprise that the trial Court acted on the basis of a will without any proof of its due execution or Probate. The order appealed from, therefore, cannot be sustained either in its reasoning or conclusion. The result is that this appeal is allowed and the order of the Subordinate Judge set aside. The Parties may hereafter take such action for the assertion of their rights as they are advised. As none of the competing parties has been able to establish his claim, there would be no order as to costs.