1. A preliminary objection was taken by the respondent to this appeal. His contention is that the suit is one cognizable by a Small Cause Court, and Article 28 of the Act does not apply to a case like this; and the amount in dispute being less than Rs. 500, the second appeal is incompetent. The plaintiff sues as the heir of his wife; and Article 28 exempts a suit for a share of an intestate's property from the' cognizance of a Small Cause Court. The contention of the respondent's vakil is that the defendant also must claim the property of the intestate in his right as-legatee or as an executor in order to bring, the case under Article 28 and relied upon Chedi v. Gulabo (1905) 27 All. 622 and Tika Shahu v. Chirkat Shahu 19 C.W.N. 614. In this case the defendant does set up a will and the will has been found to be genuine. But the respondent's vakil says that should not ba considered, but only the plaint should be considered, and that the second appeal should be held to be incompetent. I am unable to accept this contention. On the pleadings it is quite clear that the defendant did put forward the will and it has been found to be genuine, and he relies upon the will for defeating the plaintiff's claim to the property. That being so, this is not a ease which is cognizable by a. Court of Small Causes. Therefore, a second appeal lies.
2. Mr. Somasundaram for the appellant-contends that the defendant is not entitled to rely upon the will as it has not been probated; and he relies upon Section 187 of the Indian Succession Act. Section 187 does not stand in the way of a defendant putting forward the existence of a will in answer to the plaintiff's claim to a share in the intestate's property. Section 187 is in these terms : 'No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction (in British-India) shall have granted Probate of the will under which the right is claimed, or shall have granted Letters of Administration with the will or with a copy of an authenticated copy of the will annexed.' What the defendant has done in this case is to contest the right of the plaintiff to a share in the intestate's property on the ground that the defendant has devised her property by a will. The plaintiff can only succeed in case there is an intestacy, but the existence of a will is an answer to the plaintiff's claim and, therfore, Section 187 is not a bar to the defendant putting forward the existence of a will as an answer to the plaintiff's claim which is based upon its, absence; and I disallow this contention.
3. Both the plaintiff and his legal adviser have overlooked the fact that the husband can only claim half the deceased wife's property when she left no heir of her body. Section 43 is quite clear. No doubt, in the absence of the next-of-kin, the husband would be entitled to the whole of it as her heir. There is no evidence in this case that the testatrix did not leave any next-of-kin. Though this point was not raised, I am mentioning it for the purpose of drawing attention to the fact that under the Indian Succession Act the husband can only succeed to half of the wife's property in case his wife dies intestate leaving no lineal descendant.
4. In the result, the second appeal is dismissed with costs.