William Phillips, Kt. Officiating C.J.
1. The question referred to us is : Can a defendant resisting a claim made by the plaintiff as heir-at-law rely in defence on a will executed in his favour at Madras in respect of property situate in Madras when the will is not probated and no letters of administration with the will annexed have been granted?
2. This question deals with the provisions of Section 187 of the Indian Succession Act, X of 1865, which is to the effect that no right as legatee can be proved by a will of which probate has not been taken. It has been held by this Court in Caralapathi Chunna Cunniah v. Cota Nannnalwariah ILR (1909) M 91 that this objecttion to proving by an unprobated will applies only to a plaintiff and it was held 'that a defendant is not precluded by that section from relying upon a will as he is not seeking to establish a right as executor or legatee.' Janaki v. Dhanu Lall ILR (1891) M 454 was cited as authority for that proposition. On a reference to Janaki v. Dhanu Lall ILR (1891) M 454, with all respect, it seems very doubtful whether any such proposition is there put forward. In that case the 1st defendant had obtained a decree against the personal representatives of the deceased man who was said to have left a will, and subsequently the deceased's mother, who would have been his representative in the absence of a will, brought a suit to set aside that decree., It was then held that, 'though the executors can establish no right without taking probate, the existence of the will cannot be ignored for all purposes whatsoever.' It was also observed 'that the decision in Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal ILR (1878)C 342 is applicable, and that the persons, who took possession of Gulab's estate upon his death, were liable to be treated by the creditor (1st defendant) as his representatives even though themselves liable to be dispossessed by the executors on taking out probate.' It was, therefore, held that the 1st defendant's decree was not a nullity and it was open to him to prove that Ghulab left a will and, therefore, the plaintiff was not a person who could claim to set that decree aside. It was clearly in the minds of the Judges that the executors could establish no right without taking probate, and yet the existence of the will was in the circumstances allowed to be proved. That is not authority for the proposition that a defendant is not precluded from establishing a right under an unprobated will, as was held in Caralapathi Chunna Cunniah v. Cota Nammahvariah ILR (1909) M 91. I am strengthened in this view by the fact that Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal ILR (1878) C 342 was relied upon by the learned Judges in Janaki v. Dhanu Lall ILR (1891) M 454. In that case no question was decided under Section 187 of the Succession Act. It was merely held that a decree having been obtained against the de facto manager of the deceased's estate, the decree was not a nullity and, even if it cannot be executed against the estate in the hands of the executors when he has taken out probate, it is at any rate sufficient to enable the plaintiff to bring a suit against the executor in order to have the decree satisfied. In fact, the executor had actually obtained probate.
3. There is nothing in Section 187 which would in terms make it applicable only to the case of plaintiffs and not to the case of defendants, and this view has been taken in several cases, in opposition to Caralapathi Chunna Cunniah v. Cota Nammalwariah ILR (1909) M 91. The first of these is Lakshmamma v. Ratnamma : (1913)25MLJ556 where, however, Caralapathi Chunna Cunniah v. Cota Nammalwariah ILR (1909) M 91 does not appear to have been cited. Again in Parthasarathy Aiyar v. Subbaroya Gramany : AIR1924Mad67 , Kumar Chandra Kishore Roy v. Prasanna Kumar Dasi (1910) 21 MLJ 116 and Basunta Kumar v. Gopal (1914) 18 CWN 1136 no distinction is drawn between a plaintiff and a defendant. There is, however, a remark of Schwabe, C.J., in Parthasarathy Aiyar v. Subbaroya Gramany : AIR1924Mad67 who, after stating 'that a person who in Court has to prove title and has to deduce that title from a will, whether that person is plaintiff or defendant, cannot do so without producing probate,' goes on to remark, 'This would not prevent a defendant resisting a claim by an heir-at-law by producing and proving a will of which probate had not been granted.' This observation must; clearly be read as being limited to cases in which the claim could be resisted without establishing a title under the will. This view has been taken consistently throughout and it is evident that there can be no objection to an unprobated will being proved for certain limited purposes, provided that it is not sought to prove by the will a right thereunder; for this is prohibited by Section 187.
4. The answer, therefore, to the question referred to us must be that a defendant can rely on an uprobated will, provided that he does not do so in order to establish a right under the will.
5. As this answer will in no wise dispose definitely of the case before the referring Judges, I think I may add a few words on the facts of the case. The plaintiff is suing as heir-at-law, but he was resisted by the defendants who claim under a will of which no probate has been taken. It is argued that it is a sufficient answer to the plaintiff's case to allege and prove the existence of a will; for in that ease the plaintiff, who would be the heir in case of intestacy, would no longer have any right. This rather ignores one point which, I think, is important, namely, that the plaintiff being the heir under intestacy, which must be presumed until a will is proved, is entitled to succeed to the property, unless it can be shown that his title has been displaced. If the defendant merely proves that a will is in existence and does not prove the terms of that will, that is not necessarily inconsistent with the plaintiff's title. In the first place, the will may not be a valid will and, in the second place, the plaintiff may be a legatee under the will. The mere existence, therefore, of a will does not necessarily displace the plaintiff's title. It is necessary for the defendant to go further and to prove that some one other than the plaintiff has title under the will. This he cannot do by virtue of the provisions of Section 187. In the circumstances of the present case, I would there fore hold that the defendant cannot use an unprobated will as a defence.
6. I agree.
Anantakriskna Aiyar, J.
7. I agree. An argument based on the principle of the plea of Jus tertii was advanced on behalf of the respondent on which I should like to say a few words. I find the principle of Jus tertii referred to in Odgers' book on Principles of Pleading and Practice, Chapter VIII, p. 139, Ninth Edition : 'If the plaintiff is in possession of any land or goods or can otherwise make out a prima facie title to them, it is not enough for the defendant to show a better title in some third person; he must also show that he acted as agent for such third person at the time he did the act complained of.' Thus where a plaintiff makes out a prima facie title in him to the property in dispute, the defendant has to show a better title either in himself or in some third person. If what is stated above be the correct principle of pleading applicable to such cases, it follows that when the plaintiff in the present case shows a prima facie title in himself to the property in dispute--a.- the admitted heir-at-law of the last owner--the defendant has 'to show a better title' either in himself or in some third person (in the words of the learned author quoted above) or 'establish a right as legattee' (in the language of Section 213 of the Indian Succession Act, XXXIX of 1925) in himself or in some third person. It seems to me therefore that where the plaintiff's prima facie title to the property is established, the defendant in order to nonsuit the plaintiff should establish the title of the legatee. The general law would seem to be that the defendant's plea of Jus tertii cannot be entertained when he does not state in whom (such) the right resides. The defendant must trace the title to a third party other than plaintiff. A mere suggestion that there may be a third party with better title is nothing (Chandra Kanta Pathak v. Bhagjur Bepari 1 IndCas 525. It has been held by the Privy Council that 'possession is a good title against all the world except the person who can show a better title'--Sundar v. Parbati (1889) LR 16 IA 186 : ILR 12 All. 51; Narayna Rao v. Dharmachar I.L.R. (1902) M 514. Similarly a prima facie title made out by the plaintiff to the property in suit is, I think, a good title against all the world except against the person who can show a better title. This prima facie title of the plaintiff has no doubt to be proved by him if it be not admitted by the defendant; but when once plaintiff's prima facie title is admitted or proved, I think it follows that he must succeed unless the defendant is able to displace the ' plaintiff's prima facie title and prove a better title in some person other than the plaintiff. If such person's rights should happen to be as legatee under a will, since the defendant has to prove such person's rights as legatee, he comes within the scope of Section 213 of the Succession Act, XXXIX of 1925 (Section 187 of the old Act X of 1865) under which 'No right as legatee can he established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed'. We are not here concerned with that class of cases where no directe title to property is claimed under a will, the will being relied on only to prove an authority to adopt or as containing an admission of the status of some other person--Achyutananda Das v. Jagannath Das (1914) 20 CWN 122; Manuel Louis Kunha v. Jnana Coelho : (1908)18MLJ158 ; Basunta Kumar v. Gopal 1914 18 CWN 1136.
8. My Lord, the learned Officiating Chief justice, has in his judgment discussed the trend of decisions in this Court on the construction of the section. I think that the respondent in the present case has to establish the right of the deceased Saraswathi Bai as legatee of the suit property to displace the prima facie title of the appellant and under Section 213 of the present Act (Section 187 of old Act) she is not entitled to do so unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed. I would accordingly answer the question referred to us in the negative, and hold that the defendant in the present case cannot use the unprobated will as a defence to the suit.