Kumarswami Sastry, J.
1. These suits relate to house and ground No. 2/100 Perumal Mudali Street, Madras, described in the schedules to the plaint.
2. The following facts are not in dispute. One Govindoss Ganshamdoss had two wives. The first wife was Krishna Bai and the second wife was Ganga Bai. By Krishna Bai, he had a son Narayandoss and a daughter Kaveri Bai. Narayandoss had a son Ganshamdoss, who is the plaintiff in C.S. No. 755 of 1920. Kaveri Bai died issueless, in October 1908, and it is alleged that she left a will, dated 5th of April, 1908. By the second wife, Ganga Bai, Govindoss Ganshamdoss had three daughters, Saraswathi Bai, who died in 1923, Bhagirathi Bai who died in October, 1909, leaving a son Jamnadoss who is the plaintiff in O.S. Nos. 557 of 1921 and 290 of 1923 and Gulab Bai, who in a defendant in C.S. Nos. 755 of 1920 and 557 of 1921. Sarasvathi Bai, who was left a widow when she was quite young, subsequently became a convert to Mahomedanism and married a Mahomedan and died professing the Mahomedan religion in 1923. Gulab Bai, who also became a widow, when she was young, married a Mahomedan and is now professing the Mahomedan faith. Govindoss Ganshamdoss died on the 18th of December 1891, having left a will, of which probate was granted by the High Court. The will is filed as Ex. A. He appoints as executors his son Narayandoss and one Goverdhandoss. The material portions of the will run as follows;
3. My second wife Ganga Bayee's pulla (or dowry) jewels worth about six thousand rupees are with mo. The documents of the house, Door No. 3 in Narayana Mudaly Street, which my wife purchased from Mundapathi Ramakrishniah are with Goverdhan Doss Jumna Doss. Krishna, Doss Vittal Does shall take those documents from Goverdhan Doss Jumna Doss. I delivered the above mentioned jewels to the aforesaid Krishan Doss Vittal Doss. My sons Narayana Doss and Goverdhan Doss Jumna Doss together shall within six months get proper prices for and sell the aforesaid jewels. Should these two persons fail to sell the same within the aforesaid six months, the aforesaid Krishna Doss Vittal Doss shall get good prices, according to the market rules and sell the same and shall with that money itself construct four separate houses, out of the house door No. 3 in Narayana Mudaly Street a ad give them to jay four daughters, after getting grants issued in their names. In case any of these four persons may, through want of money, wish to sell her share, any of the remaining daughters may then purchase the same. In case they may not consent to do so, she herself shall enjoy the same and shall not in the least sell it to others.
4. My deceased second wife Ganga Bayee has left four per cent, interest bonds for rupees 8,500 (in letters Rupees eight thousand and five hundred) with Goverdhan Doss Jumnadoss. Out of this, my son Narayana Doss shall receive Rs. 1,750 (in letters Rupees one thousand seven hundred and fifty) for expenses at the time of the marriage of my second wife's daughter Bhagirathi Bai. My son Narayana Doss shall receive Rs. 1,750 (in letters Rupees one thousand seven hundred and fifty) for expenses at the time of the marriage of my third daughter Goolab Bai. Out of the balance of Rs. 5,000 (in letters Rupees five thousand) one share shall be given to Sow. Saraswathi Bayee, out of the three daughters of my second wife, as soon as the 20th year of her age begins. The two other shares shall be given to the others, when the 20th year of their age begins, respectively by Goverdhan Doss Jumnadoss or his heirs. In case any of these may die by act of King or by act of God, a division shall be made between the survivors; out of the three girls, when occasions may arise for expenses for the aforesaid children, money shall be drawn for proper expenses from the interest on the bonds.
3. It is not disputed that according to the terms of this will, houses were built and given to each of the daughters Kaveri Bai, Sarasvathi Bai, Bhagirathi Bai and Gulab Bai. Kaveri Bai, with whom we are concerned, got the house in 1893 and she was in possession and enjoyment of the same, till her death in 1908. It is alleged that she left a will dated the 5th of April, 1908, which is marked as Ex. II in this case. I shall refer to the terms of this will and the evidence about it later on; but it is sufficient at this stage for me to state that I am of opinion that it has been proved that she executed the will Ex. II and it is valid.
4. C.S. No. 755 of 1920 is filed by Ganshamdoss Narayana Doss, who is the son of Narayana Doss and nephew of Kaveri Bai, for a declaration that house No. 2/100 Perumal Mudaly Street, belongs to him and for possession from Sarasvathi Bai, who, it is alleged, got into possession of the property, without any title and has no right to the property. His case is that the property belonged absolutely to Kaveri Bai, that Kaveri Bai died intestate in 1908 that he was a minor at the date of her death, that his father also died in 1912, that on the death of Kaveri Bai, Sarasvathi Bai took unlawful possession of the property and that he is entitled to the relief claimed. He says that he was born in October 1896, and that as Kaveri Bai died in October 1908, and as the suit was filed within twelve years of her death, the suit is not barred by limitation.
5. As I said before, the suit was against Saraswathi Bai, who was then alive and she filed a written statement, putting the plaintiff to the proof of the various allegations in the plaint, denying his title and pleading that Kaveri Bai died leaving a will, by which she bequeathed the property to her (Sarasvathi Bai) and her two sisters, and that under the will the house belongs to her. She says that the plaintiff is not entitled to any mesne profits and that the mesne profits claimed are excessive. She also says that the suit is barred by limitation, as she has been in adverse possession for over 12 years. She further states that under the terms of Ganshamdoss's will, the properties which were given were properties, which belonged to her mother and that the plaintiff has no right to the property.
6. The following issues were settled:
1. Did Kaveri Bai die intestate, as alleged in paragraph 5 of the plaint, or after making a last will and testament, as alleged in paragraph 3 of the written statement?
2. If there was such a will, can the defendant set up a right, as legatee thereunder, without producing probate of the said will?
3. What was the date of the death of Kaveri Bai?
4. Has the defendant acquired an absolute right to the suit property by adverse possession, for over 12 years after the death of Kaveri Bai and previous to the institution of the suit, as alleged in paragraph 7 of the written statement?
5. Was the plaintiff's father the heir to Kaveri Bai, as alleged in paragraph 6 of the plaint?
5-(a). When did plaintiff attain majority?
6. Is the plaintiff's claim barred by the Law of Limitation?
7. To what mesne profits, if any, is the plaintiff entitled? and
8. To what relief is the plaintiff entitled?
7. C.S. No. 557 of 1921 is filed by Jamnadoss, who is the son of Bhagirathi Bai against Saraswathi Bai and Ganshamdoss Nnarayandoss, plaintiff in O.S. No. 755 of 1920, to recover possession of house No. 2/100, Perumal Mudali Street. Sarasvathi Bai died pending suit and her sister Gulab Bai was brought on record and she is described in the plaint as the legal representative of Saraswathi Bai. After setting out the relationship between the parties and the will of Goverdhandoss Ghanshamdoss and after stating that Kaveri Bai obtained possession of the property described in the schedule to the plaint and was in possession and enjoyment of the same till her death in 1908 when she died issueless and intestate the plaintiff states that Govindoss Ganshamioss had no power to dispose of any of his wife's properties, including the suit property, that he had no power to give to Kaveri Bai any property built out of the monies belonging to Ganga Bai, her step-mother, that Kaveri Bid could not acquire any title to the suit house as a legatee under the will, that even if she purported to claim any title thereunder it could not prevail against the title of Saraswathi Bai, Bhagirathi Bai and Gulab Bai, that Kaveri Bai died intestate and issueless in October, 1908 and on her death, Saraswathi Bai took possession of the property claiming that she obtained the same under a 'Will, alleged to have been left by Kaveri Bai that the plaintiff's mother Bhagirathi Bai died at Madras on or about the 24th October, 1909, leaving the plaintiff her only son, a minor, as her heir and legal representative, that as the three daughters of Ganga Bai were minors, at the time of the death of their father and mother, Kaveri Bai could not claim any title to the suit property, even as a trespasser as against them, that even if Kaveri Bai could claim any title to the property under the will of her father, she could claim no more than the life estate of a daughter under her father's will and that she having died before she acquired any title to a daughter's estate by prescription, she could not transmit any property to her heirs. The plaintiff also says that Kaveri Bai had no power to dispose of the property by will and that he became entitled to the share of his mother on her death. He stated that the 2nd defendant, who is the plaintiff in C.S. No. 755 of 1920 has no right to the property, as he could not under any circumstances succeed to the property belonging to Ganga Bai. He says that Saraswathi Bai and Gulab Bai, the 1st and 3rd defendants, became outcastes, having married Mahomodans and that they could acquire no title to the properties of their mother. In the alternative, he states that in any event, ha is entitled to one-third of the property and mesne profits.
8. The first defendant Saraswathi Bai filed a written statement in the same terms as the written statement in O.S. No. 755 of 1920. She states that Kaveri Bai acquired full and absolute title to the suit property, that she left a will of which she (the first defendant) is going to obtain probate. She denies that she is an outcaste, or that she is not entitled to the property and states that in any event, Kaveri Bai acquired complete title by adverse possession.
9. The second defendant, Ganshamdoss Narayandoss, filed a written statement, which sets out the contentions contained in his plaint in O.S. No. 755 of 1920. He says that even if Govindoss Ganshamdoss has no power to dispose of the property by will, Kaveri Bai acquired an absolute title to the property.
10. The following issues were settled:
1. Was the suit house the property of Ganga Bai, as alleged in the plaint, or had it been purchased in her name only benami by Govindots Ganshamdoss?
2. If it was the absolute property of Ganga Bai, is the plaintiff estopped from setting up the same, by reason of Kaveri Bai and the plaintiff's mother, or either of them having taken under the will of Govindoss Ganshamdoss?
3. If issues 1 and 2 should be found for the plaintiff, had Kaveri Bai acquired a right to the suit property by adverse possession, as alleged in paragraphs 5 and 6 of the second defendant's written statement?
4. If it be found that Kaveri Bai took under the will, what, on the true construction of the will, was the estate given to her? Whether it was an absolute estate, or only a life estate and if the latter, in whom did the remainder become vested?
5. Did Kaveri Bai leave a will, as alleged by the 1st defendant and can the 1st defendant set up any right thereunder, until and unless she obtains probate of the same?
6. Have the 1st and 3rd defendants lost their rights, if any, to the suit property, by reason of their conversion to Mahomedanism and marriage?
7. What are the rights, if any, in the suit property, of any of the parties to the suit?
8. To what mesne profits, if any, is the plaintiff entitled?
9. Is the suit barred by limitation and
10. To what relief is the plaintiff entitled?
11. C.S. No. 290 of 1923 was filed by lamnadoss, who is the plaintiff in C.S. No. 557 of 1921, after the death of Sarasvathi Bai against her husband, Syed Imam Sahib and Ghanshamdoss Narayandoss the plaintiff in C.S. No. 755 of 1920. The plaint contains the same allegations, as the plaint in C.S. No. 557 of 1921, the parties only being different and his case is that Sarasvathi Bai is only entitled to a qualified estate, inherited from her mother Ganga Bai, that on her death, the heirs of Ganga Bai are entitled to succeed and that the plaintiff is the nearest reversioner of Ganga Bai.
12. The 1st defendant is ex parte.
13. The second defendant filed a written statement, in which he sets up the same title, as he sets up in his plaint in C.S. No. 755 of 1920.
14. No issues were settled separately in this suit; but the issues in the other two suits will cover all the contentions raised in this suit.
15. The three suits were tried together, by consent of parties and the evidence in one was treated as evidence in the other suits.
16. Before dealing with the material issues, I may dispose of certain 'issues which raise no difficulty.
17. The first point is as regards the date of the death of Kaveri Bai. It is proved by the death certificate, Ex. B. that Kaveri Bai died on the 16th of October, 1908. This date is not disputed by any of the parties. It is also proved that Ganshamdoss Narayandoss, the plaintiff in O.S. No. 755 of 1920, was born on the 19th of October 1896. As C.S. No. 755 of 1920 was filed on the 14th of October 1920, that is, within 12 years after the death of Kaveri Bai, the suit cannot be barred by limitation.
18. As regards the property in dispute, in these suits, it is not disputed that houses were built, in accordance with the directions contained in the will, Ex. A, and Kaveri Bai was put in possession of one of the houses, which is the house now in dispute. Paragraph 5 of the plaint, in O.S. No. 755 of 1920, distinctly alleges that from 1892, Kaveri Bai was in possession and enjoyment of the suit property, as her absolute property till her death, which took place in 1908. It is clear from the plaint and it is the ease of all the other parties, that Kaveri Bai was in possession of the house, from 1892 or 1893, she having been put in possession of the property, by the executors under the will of her father. As Kaveri Bai died only in 1908, it is clear that she was in possession of the property for over 12 years and unless there is anything shown to the contrary, she would have acquired a right to the property by adverse possession. As regards the possession of Saraswathi Bai, though the plaintiff in C.S. No. 755 of 1920, wanted to throw some doubt, as to when she got possession, the plaintiff in paragraph 8 of his plaint admits that on the death of Kaveri Bai, the defendant Saraswathi Bai taking advantage of her having been with Kaveri Bai till her death, took possession of the house and has continued to be in possession and management of the same. This is also the case of the other defendants that Saraswathi Bai took possession of the property on the death of Kaveri Bai. It is therefore clear that Saraswathi Bai was in possession of the property, from the year 1908 up to her death in 1923.
19. The next question for determination is as to the interest that Kaveri Bai took, under the will of her father Govindoss Ganshamdoss. I already referred to paragraph 3 of the will, Ex. A, which deals with this house. The contention of the plaintiff in O.S. No. 755 of 1920, is that under the term of this will, Kaveri Bai acquired an absolute estate; whereas the contention of Jamnadoss, the plaintiff in the other two suits, is that Kaveri Bai acquired only a life estate. I do not think, on a proper construction of this will, Kaveri Bai can be said to have acquired only a life estate. The will says that, house No. 3, Narayana Mudali Street, will be altered in such a way that four houses ought to be built and that the executors should give them to his four daughters, after getting grants issued in their names. So far, there is nothing to qualify the gift. It is a gift without any reservation. I do not think, that the next sentence, which, in my opinion, only amounts to a direction for pre-emption, would cut down the absolute nature of the gift. What the testator says is that in ease any of the four daughter should be in need of money and wish to sell her share, she would sell to the other daughters and not to strangers. The evident intention of the testator was that the houses should not pass out of the hands of the members of the family; but that would not cut down the right of each of the donees to a life estate. One test would be to see whether, if one daughter was willing to buy her sister's house, the money would not be money, which the sister would take absolutely and do what she pleased with. The mere contingency of sale, which under the will would only arise, in case any of the daughters wanted money, shows that the testator did not want to give them only a life estate in the money. Reference has been made to a recent decision of the Privy Council, in Ashrafi Singh v. Bidya Prasad Narayan Singh A.I.R. 1924 P.C. 191 but I do not think it was intended that all the previous decisions of their Lordships, where the word 'Malik' was treated as absolute owner, were over-ruled. There is this additional fact, in the present case, that the testator does not anywhere indicate an intention that his daughters should have only a woman's estate. I am not prepared to hold that the clause as to pre-emption, coupled with the direction that they should not sell the houses to strangers out down the estate to a mere life estate. I am of opinion that Kaveri Bai took an absolute estate, in the suit property. In the view I take of the case, the fact that the property bequeathed by the testator, in paragraphs 3 and 4 of the will, Ex. A, was the property of his wife, Ganga Bai, to which Kaveri Bai, would not, in the ordinary course, under Hindu Law, get any right and the fact that Govindoss Ganshamdoss had no power to dispose of the Stridhanam property of his wife Ganga Bai, do not assume much importance. There can he little doubt that Govindoss Ganshamdoss had no power to dispose of his wife's dowry properties, which are her Stridhanam and which would, in the ordinary course, under Hindu Law, have descended to her three daughters; but it is clear from the facts, which I have referred-to above, that Kaveri Bai was in possession of the property, as legatee with an absolute estate, without any objection, by Saraswathi Bai, Bhagirathi Bai, or Gulab Bai, for over 12 years; and it seems to me to be clear that Kaveri Bai, at the date of her death, acquired an absolute title, to the property, whatever may have been the infirmity of her claim, under the will of Govindoss Ganshamdoss, owing to his want of disposing power over the properties.
20. The next question to be decided is as to who in law would be the heirs of Kaveri Bai. There can be little doubt that, in the absence of any testamentary disposition by Kaveri Bai, the plaintiff Ganshamdoss Narayandoss would be entitled to succeed to her absolute properties, in preference to Saraswathi Bai, Bhagirathi Bai, Gulab Bai and Jamnadoss. I need only refer to Kanakammal v. AnanthamatM Ammal (1914) 37 Mad. 293 and Ganpat Rama v. Secretary of State for India A.I.R. 1921 Bom. 138. This would be equally BO, whether the parties are governed by Mayukha or Mitakshara. But the question is whether the plaintiff could have any right, in view of the fact that Kaveri Bai left a will, and this takes me to the two chief questions, raised in these suits; first, as to whether Kaveri Bai left a will and secondly, whether in the absence of probate, the will can be pleaded as a bar to the plaintiff's claim.
21. The evidence as to the will left by Kaveri Bai consists of the evidence of two of the attesting witnesses, Rangaldoss and Poolji Vyas. One of the attesting witnesses, Mr. Seshacharlu, a vakil of this Court, who evidently was the legal professional gentleman consulted in the matter died in 1909 or 1910 and the evidence of Sripati Rao, who was his gumastah, proves that the will, Ex. II, bears the attestation of Mr. Seshacharlu. This witness also says that he used to accompany Mr. Seshacharlu, when he went to prepare wills to the houses of his clients but he is not sure, as to what was done in this particular case. He is, however, perfectly sure that the attestation in the will, Ex. II, is that of Mr. Seshacharlu's.
22. Before dealing with the evidence, I may remark that there is considerable force in the argument of Mr. Venkatasubbaramayya, that the conversion of his client, Gulab Bai, to Mahomedanism and her living with a Mahomedan husband, has estranged the members of the community from her, that although he took out subpoenas to the available attesting witnesses, there was considerable difficulty in getting them to state what actually happened and that the sympathies of the attesting witnesses are naturally against his client. This I found, in the way in which both Rangildoss and Poolji Vyas gave their evidence.
23. Rangildoss, who was examined as defendants' first witness, says that he saw Kaveri Bai put her mark to the will, Ex. II, that he attested the will and that there are throe other attestations, before his attestation in the will. He had to admit this, because he had committed himself in the testamentary proceedings, to the statement that Kaveri Bai made her mark in the will. In cross-examination, he states that the executor under the will Ranchordoss took him to Kaveri Bai's house, that she was then ill and that the will was not read over to her, in his presence. He, however, had to admit that he saw her put her mark to the will, Ranchordoss having given her the pen to do so. He wants to make out that when she put her mark, nobody but Ranchordoss, Kaveri Bai and himself were present and that the other attesting witnesses were not present, when he attested the will. He wants to get over the fact, that his attestation comes last, by saying that Ranchordoss asked him to sign his name below, so as to leave space for the other attesting witnesses. Why, it is, not explained. He says that Kaveri Bai was very ill, and that she died soon after the execution of the will, that he does not know whether she was in such a condition as to execute a will or not, and that although Ranchordoss told her that the witness had come to attest the will, she did not give any answer, by word or sigh. It appears, however, from the evidence that Kaveri Bai died on the 16th of October 1908, while the will was executed on the 5th of April 1908, so that she lived about six months after the execution of the will. Poolji Vyas, who was examined as defendant's second witness, is also an attesting witness. He denies some more facts, as he has not committed himself till now to any statement as to the will. He admits that he attested the will, but says that he did not see her put her mark to the will. He says that he was called by Ranchordoss, that the lady was sitting there, that Ranchordoss told him that it was the will of Kaveri Bai and wanted him to attest it, that she was lying on the bed and that she told the witness that he should attest the will. The words which he says she used, were 'put your signature on this.' He says that he does not remember whether her mark was there, when he attested the will. When asked, whether he thought she was in a condition to execute the will, he says that he does not think she was in a condition to understand the will. I have little doubt from the way in which this witness gave his evidence, that he is evidently trying to help the other side, as much as possible. His evidence, however, is dear on one point, that Kaveri Bai asked him to attest the will and that he did so at her request. Although he wants to make out that he does not remember, whether she had put her mark on the will or not when ho attested it, it seems to be fairly clear, that where a person asks another to attest a document, it can be quite legitimately inferred that she admitted that the document was executed by her and that the person whom she wanted to attest, had to attest the document, in token of her admission of execution.
24. So far as vakil Seshacharlu is concerned, he died several years ago. Nobody suggests that this signature in the will is not his signature; and OLO thing is quite clear that the will could not have been brought into existence after 1909 or 1910, when he died and long before there were any disputes between the parties.
25. Section 50 of the Succession Act, which is made applicable to Hindu Wills, by the Hindu Wills Act, does not require the witnesses to attest, in the presence of each other. Clause 3 is clear and I think the will has been validly executed and attested.
26. There is one circumstance which, in my view, strongly corroborates the case for the defendants that Kaveri Bai left a will, and which probablises the genuineness of the will. It is admitted that Saraswathi Bai, who was under the will, Ex. II, the legatee of this house, continued to be in possession of the same, ever since the death of Kaveri Bai, even though she had no legal title and even though Narayanadoss, the plaintiff'S father, would have been the next heir and he lived for about four years, after the death of Kaveri Bai. It is also significant that the plaintiff who was born in 1896, and who attained majority in 1914, took no steps to recover the property, till he filed the suit in 1920, even though Saraswathi Bai had no title to the property and was in possession and enjoyment of the same, till her death in 1923. No explanation has been offered, why if Kaveri Bai left no will bequeathing the property to Saraswathi Bai and Saraswathi Bai had no title to the property except under the will, both the plaintiff's father and the plaintiff allowed Saraswathi Bai to be in possession of the property till her death in 1923. It is hardly likely that they would have done so, unless they were aware that Kaveri Bai had left a will, disposing of the property and that the legatee Saraswathi Bai was in the rightful possession of the same. One important test, in cases where wills are disputed and disputes arise several years later, is to see what was the conduct of the parties and where the conduct of the parties can only be rationally explained, by the fact of the existence of a will. I think this fact will have considerable hearing, in appreciating the evidence of the witnesses as to its genuineness.
27. It was argued by the plaintiff's vakil, on the strength of the power of attorney, Ex. C. dated the 14th of February, 1885, executed by Kaveri Bai, in favour of the plaintiff's father, that Kaveri Bai put her mark on that document, differently from the mark on Ex. II, executed by her in 1908. The mark in Ex. C is like a Swasthika mark : whereas the mark on Ex. II is a cross mark. There is nothing to show that Kaveri Bai's usual way of marking was the Swasthika mark. Ex. C. is the only document put in, which contains such a mark. I do not think it can be said that because an illiterate woman put a particular kind of mark in 1885, the mark put in 1908, i.e., 23 years afterwards, which differs slightly from the mark of 1885, could not be genuine.
28. Giving the oral evidence on this point my best consideration, I have little hesitation in coming to the conclusion that the will, Ex. II, is genuine.
29. The next question is as to whether the will not having been probated, it can be used to defeat the plaintiff's claim. On this part of the case, there is some conflict of authority. Janaki v. Dhanu Lal (1891) 14 Mad. 454 Caralapathi Chunna Cunniah v. Cota Nammalwariah (1909) 33 Mad. 91 Parthasarathy Aiyar v. Subbaraya Gramany A.I.R. 1924 Mad. 67 and Shadagopa Naidu v. Thirumalaswami Naidu (1915) 18 M.L.T. 129 are authorities for the view that a defendant can rely upon an unprobated will, as defence to an action. The contrary view is suggested in Lakshmamma v. Ratnamma (1913) 38 Mad. 474 and C.S. No. 521 of 1919. I have in Shadagopa Naidu v. Thirumalaswami Naidu (1915) 18 M.L.T. 129 considered the authorities and I see no reason to change my view, as there is no clear authority against the view, I have taken and which is supported by the cases I have already referred to Section 187 of the Succession Act does not say that an unprobated will should not be looked into, for any purpose whatever. It only says that title cannot be proved to establish a claim as legatee. In the present case, the plaintiff comes to Court, saying that Kaveri Bai died intestate and that he is the heir under the Hindu Law, claiming by intestate succession. There is no authority which says that where a plaintiff comes to Court claiming as on intestate succession, his claim can only be displaced by one who has obtained probate of the will. Where it is shown that the person did not die intestate, but left a will, the plaintiff, who claims adversely to the will, is out of Court, irrespective of any proof of claim or title, by the defendant. In cases where the plaintiff necessarily fails, merely on the ground that there is a will left by a person and that by reason of the will, his claim to succeed to the estate of the deceased on the ground of intestacy under the ordinary law, is not sustainable, there is nothing to prevent the defendant from pleading and proving the existence of the will. It is unnecessary, in such cases, for the defendant to prove any independent title of his own. Just as he could plead jus tertii, he could also plead facts, that would bar the plaintiff's title. Even assuming therefore, that the authority in Lakshmamma v. Ratnamma (1913) 38 Mad. 474 and C.S. No. 521 of 1919 correctly state the law, which I doubt very much, it seems to me that the plaintiff would still be out of Court, if the defendant proves that there can be no question of heirship or intestate succession, because of the existence of the will. I may refer to the observations of the learned Chief Justice, in Parthasarathi Ayyar v. Subbaraya Gramani A.I.R. 1924 Mad. 67
Now the law, as stated in Section 187, in my judgment, is the same as the Law of England, on the subject. And I think that it is 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, and I do not agree with the cases, which have suggested the contrary, such as Carlapathi Chunnah Cunniah v. Cota Nammalwariah (1909) 33 Mad. 91 which seems to have decided that a defendant can claim, as a legatee under an unproved will. 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.
30. It is not necessary in this case, for the defendant to prove his title, claiming as legatee under the will of Kaveri Bai. It is sufficient for him to show that the plaintiff could not succeed, by reason of the existence of the will. Even assuming therefore that the defendant cannot seek to prove his title, on an unprobated will, be could use it for a collateral purpose, namely, to defeat the plaintiff's title to succeed on the basis of intestacy.
31. I am therefore of opinion that it is open to the defendant to prove the will of Kaveri Bai, although it has not been probated, for the purpose of showing that the plaintiff would not be entitled to succeed as heir.
32. The next question raised is as to the effect of T.O.S. Nos. 6 of 1921 and 8 of 1921. Saraswathi Bai applied for probate of the will of Kaveri Bai. A caveat was entered by the present plaintiff. The application was numbered as T.O.S. No. 6 of 1921 and it was dismissed for default. When the case was taken up, it was alleged that the plaintiff was ill and he could not attend; but it was dismissed for non-prosecution. Saraswathi Bai applied again for probate. It was also contested and it was numbered as T.O.S. No. 8 of 1921; but Sarasvathi Bai died and matters dropped.
33. The contention of the plaintiff is that these proceedings are a bar to setting up a title under the will, by the defendant, who claims under Saraswathi Bai. It is argued that the provisions of the Civil Procedure Code apply, that therefore the second application by Saraswathi Bai would have been a bar and that consequently, it must be taken that the will could not be proved for any purpose. Reference has been made to Sections 55 and 83 of the Probate and Administration Act; but these sections do not say that all the provisions of the Code apply. Section 55 says that the provisions of the Code will apply, as far as the circumstances of the case will admit, and Section 83 states that the provisions of the Code will apply, as nearly as may be. It has been held in Ramani Debi v. Kumud Bandhu Mookerjee 14 C.W.N. 924 by Mookerjee and Carnduff, JJ., in an elaborate judgment, reviewing the authorities, that the dismissal, for default of an application for probate, would not debar an application by another person, claiming an interest under the will and therefore necessarily also by the executor himself, and that an executor presenting an application for probate of a will, cannot be regarded as a plaintiff, who brings a suit, in respect of a cause of action. With this judgment I respectfully agree. It would lead to many anomalies, if the dismissal of an application for probate of a will for default would preclude legatees or persons claiming under them, from filing a fresh application for probate. In this case, there is the further fact that under Kaveri Bai's will, legacies have been given to Gulab Bai a defendant, 'in two of those suits; and it is open to Gulab Bai to apply for probate as legatee, in her own right, and probate once granted would cover all the properties and it cannot be said that because Saraswathi Bai applied for probate and the application was dismissed for default, letters of administration cannot be issued to Gulab Bai, who is also a legatee under the will, I am also of opinion that where a suit is dismissed for default, it does not extinguish the right of the party, whose suit is dismissed. All it means at best is that he cannot file a fresh suit, in respect of the same cause of action. Where, therefore, he is in the position of a defendant in another action, and his title is not extinguished, it is open to him, as defendant, to set up his title, as a bar to the plaintiff's suit. That a dismissal for non-prosecution, or for the absence of the plaintiff, would not be res judicata, is clear, from the decision of the Privy Council, in Chand Koer v. Partab Singh (1889) 16 Cal. 98 where it was held that Section 102 ' of the old Civil Procedure Code, which corresponds to Order 9, Rule 8 of the present Code, cannot operate as res judicata between the parties. Even assuming that Saraswathi Bai could not have filed a fresh application, the title acquired under the will not being extinguished, Saraswathi Bai's heirs can always plead, as defendants, the existence of the will, as to which there has been no adjudication that it is not genuine.
34. A question has been raised as to estoppel; but it was not pressed or argued. It is difficult to sea how there can be an estoppel in this case.
35. As to the law, governing the parties, there is no evidence that the parties, who migrated from Bombay, gave up Mayukha and adopted Mitakshara. But in any view of the case, it seems to me that Jamnadoss, the plaintiff in C.S. No. 557 of 1921 and C.S. No. 290 of 1923 would not be entitled to the possession of the suit property, till Gulab Bai's death. It is unnecessary to determine in this suit, what his rights would be, on the happening of that contingency; and I make no declaration as to his rights, as the daughter's son of Ganga Bai, the original owner of the property and wife of the testator, Govindoss Ganshamdoss.
36. The conversion of Saraswathi Bai and Gulab Bai to Muhamedanism, after the became widows, will not affect their rights to the property. No right they got from their deceased Hindu husband is in question. Section 2 of the Hindu Widow Be-marriage Act will not apply and the Castes Disabilities Removal Act of 1850, prevents any forfeiture by reason of conversion.
37. It follows from my findings that the three suits must be dismissed. As regards cost in C.S. Nos. 755 of 1920 and 557 of 1921 the plaintiff will pay the costs of Gulab Bai, and in C.S. No. 290 of 1923, the plaintiff will pay the costs of Ganshamdoss Narayandoss, the 2nd defendant.
38. The receiver will hand over possession of the property to Gulab Bai.