Kumari P. Janaki Amma, J.
1. The question involved in this appeal is whether the suit brought by the appellant for a declaration of the validity and genuineness of a will is hit by either Section 213 of the Indian Succession Act or the proviso to Section 34 of the Specific Belief Act, 1963.
2. The facts of the case are as follows : Deceased Yovan Samuel was the brother of the plaintiff-appellant. He is stated to have executed Ext, P2, a will dated 23-6-1958, registered as Will No. 9 of 1958. Yovan Samuel died on 31-5-1959 about a year after the execution of Ext. P2 will. The appellant was granted probate by the District Court, Trivandrum in Probate Case. No. 2 of 1960. No notice had been given to the. defendant-respondent who is admittedly a nephew of the deceased being the son of a deceased brother. On a caveat being presented by the defendant, the probate was revoked with liberty to initiate fresh proceedings. The plaintiff did not file any fresh application for probate but instituted a suit for a declaration that Exh. P2 will is a validity executed document and that Ext. D17, will D/-20-12-1957 set up by the defendant is invalid. The suit was contested by the defendant who contended that Ext. P2 will was brought into existence by misrepresentation, undue influence and coercion. The defendant also challenged the maintainability of the suit for declaration without a prayer for consequential relief. The Principal Subordinate Judge, Trivandrum decreed the suit with costs, in appeal, the defendant contended that the suit was barrel in view of Section 213 of the Indian Succession Act. The appellate court upheld the plea and dismissed the suit. The second appeal is filed challenging the above decree.
3. Section 213(1) of the Indian Succession Act reads :
'No right as executor or legatee can be established in any Court of Justice, 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.' The contention put forward is that inasmuch as the order in the probate proceedings stands cancelled, it is not open to the appellant to institute proceedings on the basis of the will-The remedy open to him is to initiate fresh proceedings under the Indian Succession Act for grant of a probate. The appellant, however, would contend that Section 213 is a bar only for establish-ing a claim under the will. The suit in the present case was not instituted to establish the rights of the appellant either as an executor or a legatee under the will but only for a declaration that Ext. P2 will is a properly executed document. Reference was made in the course of the hearing to the decision in State v. Devassy Lonappan (AIR 1956 Trav. Co. 215). Though the bar under Section 213 of the Indian Succession Act was raised by the appellant in that case, the High Court held that as the plaintiff instituted the suit in his own right, there was no question of non-compliance of Section 213 of the Indian Succession Act. In Caralapathi Chunna Cunniah v. Cota Nammalwariah ((1910) ILR 33 Mad 91) and Ganta Daniyelu v. Gunti Yesu Ratnam (AIR 1925 Mad 1110) relied on by the appellant, what was held was that a defendant could set up an un-probated will in answer to the plaintiffs claim for testator's property. These decisions are no longer law in view of the Full Bench decision in Ganshamdoss Narayandoss v. Gulab Bi Bai (ILR 50 Mad 927: AIR 1927 Mad 1054) which has been approved and followed in Hem Nolini v. Isolyne Sarojbashini (AIR 1962 SC 1471). The Supreme Court held in the latter case that Section 213 of the Succession Act creates a bar to the establishment of rights under a will by an executor or a legatee unless probateor letters of administration of the will have been obtained, and it is immaterial whether the right is claimed as a plaintiff or as a defendant,
4. In Narasayyamma v. Andhra Bank (AIR 1960 Andh Pra 273) cited by the respondent, the point involved was whether a person after accepting the office of an executor under a will could file a suit as heir to the testator as if on intestacy. It was held that he should obtain probate before filing the suit.
5. The decisions referred to above only lay down that an unprobated will cannot be the basis for establishing a right conferred thereunder. However, the language of Section 213 does not warrant a conclusion that an unprobated will cannot be acted upon for purposes other than for enforcement of the rights thereunder. The section does not stand in the way of an unprobated will being used for collateral purposes.
6. So far as the present proceedings are concerned, the plaint contains definite averments that under the will dated 23-6-1958 Yovan Samuel bequeathed all his properties in favour of the plaintiff, that an earlier will executed in favour of the defendant is invalid and that the invalid will in favour of the defendant stands in the way of the plaintiff's valid title to the properties comprised in the will. The reliefs sought include a declaration that the will in favour of the plaintiff dated 23-6-1958 is the legally effective will despite the existence of the will, dated 20-12-1957. The recitals in the plaint taken along with the reliefs claimed amount to establishment of the plaintiff's right as the sole beneficiary under the will. The suit, if decreed, would defeat the purpose of Section 213 of the Indian Succession Act. In other words, the suit in the form in which it is brought is hit by Section 213 of the Indian Succession Act. Whether a suit for a bare declaration that a document is the will of a particular person when no reference is made in the plaint to the rights conferred on the plaintiff is hit by Section 213 of the Act does not arise for consideration in this case.
7. Apart from the above, there is another objection to the form of the suit. Being a suit for declaration, it is governed by Section 34 of the Specific Relief Act 1963 which corresponds to Section 42 of the earlier Act 1 of 1877. Section 34 reads :
'Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief : Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so.' It is clear from the proviso to the section that in all cases where the plaintiff in addition to a declaration is able to seek further relief but omits to do so, the courts should refrain from passing a declaratory decree. The averment in para 3 of the plaint is that under the will, Ext. P2, Yovan Samuel bequeathed all his properties in favour of the plaintiff. The declaration sought is that Ext. P2 will is legally effective and Ext. D17 will is not genuine. If Ext. P2 will is legally effective, the plaintiff is entitled to probate in respect of the will A declaration regarding the validity of the will; will be ineffective if it is not followed by a grant of probate. In other words, a declaration without grant of probate may not enable the plaintiff to enforce his rights under the will. The suit in the present form is, therefore, hit by the proviso to Section 34 of the Specific Relief Act.
8. Whether a declaration asked for should be granted or not is a matter entirely left to the discretion of the Court. It may be that if the declaration sought would serve in putting a stop to the dispute between the parties it is open to the court to grant the relief. But in the instant case, if a declaratory decree is passed, it would help the plaintiff only in securing what is termed 'a tactical advantage' in proceedings that may hereafter be instituted for obtaining a probate of the will.
9. The decision in the suit will not be the final word regarding the genuineness of the will because the decree in a suit of the kind is binding only on the parties thereto whereas the decision of the Probate Court is a judgment in rem binding also on persons not parties thereto. No useful purpose will be served by a decree declaring the validity of the will, if the identical issue is to be tried de novo in proceedings for grant of probate. A declaratory decree being a discretionary relief, the Court is expected to take into consideration the above aspect in deciding whether relief should be given. The object of the proviso to Section 34 of the Specific Relief Act is to avoid multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then seeking in another suit the remedy without which the declaration would be useless. The object is not served by the present proceedings. On the other hand, if the plaintiff, instead of filing the present suit for declaration, had moved for obtaining probate of the will after notice to those interested, he would have been in a position to enforce his rights under the will.
10. In Suryanarayanamurti v. Tam-manna ((1902) ILR 25 Mad 504), a suit was brought for a declaration that a will was illegal and invalid being one fabricated by the defendants. The plaintiff contended that the property involved was joint family property while the defendant set up a case that it was the self-acquisition of the testator. The maintainability of the suit was challenged on the ground that it was hit by proviso to Section 42 of the Specific Relief Act 1 of 1877. A Division Bench of the Madras High Court consisting of Benson and Bhashyam Iyengar, JJ. upheld the objection and held that if the property was joint family property as alleged by the plaintiff, he could have claimed partition of the property, which was a further relief of substantial character. The suit was accordingly dismissed.
11. The ratio of the above decision applies to the instant case. It may not be a proper exercise of the discretion to grant the relief asked for by the appellant in this case when the remedy of initiating proceedings under the Indian Succession Act is available to him. I do not find my way to allow this second appeal. It is accordingly dismissed with costs.