Mrs. Hem Nolini Judah (Since Deceased) vs Mrs. Isolyne Sarojbashini Boseand

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 273 of 1959

Decision Date: 16 February 1962

Coram: K.N. Wanchoo, P.B. Gajendragadkar, A.K. Sarkar

In this matter the parties were styled Mrs Hem Nolini Judah (since deceased) versus Mrs Isolyne Sarojbashini Boseand, and the judgment was delivered on 16 February 1962 by a bench of the Supreme Court of India consisting of Justice K.N. Wanchoo, Justice P.B. Gajendragadkar and Justice A.K. Sarkar. The case is reported in 1962 AIR 1471 and in the 1962 Supplement to the Supreme Court Reporter at page 294. The statutes referred to in the judgment include the Indian Succession Act, 1925 (39 of 1925), section 213(1); the Code of Civil Procedure, 1908 (Act 5 of 1908), sections 8 and 11; and the Indian Evidence Act, 1872 (1 of 1872), section 115.

The factual background presented in the headnote relates to the death of Dr Miss Mitter, who owned a house and was survived by her mother and three sisters. The respondent‑plaintiff asserted that she was the owner of the house on the basis that the deceased had bequeathed the property by will to her mother, and that the mother in turn had transferred the house to the plaintiff. The appellant‑defendant, Mrs Judah, contended that Dr Miss Mitter had executed a separate will leaving the house to her mother, and that the mother subsequently bequeathed the house to the appellant. No probate had been obtained for either of the alleged wills of Dr Miss Mitter. After the death of one sister, it was alleged that she had executed three distinct wills, each favouring one of the three daughters. Each daughter filed an application for letters of administration, each claiming that the will in her favour represented the last will of Dr Miss Mitter and each naming the house as part of the estate. The application filed by the appellant was granted, while the applications of the other two sisters were rejected. The two dissatisfied sisters appealed the decision, and the appellate court rejected their claims and upheld the grant of letters of administration in favour of the present appellant. The appellant then appealed to the Privy Council, which allowed her appeal. Following that decision the respondent‑plaintiff instituted the suit from which the present appeal arose, seeking a declaration that she owned the house either in whole or to the extent of two‑thirds of it. The trial court concluded that the appellant‑defendant had become the owner of the house under the will of Dr Miss Mitter and held that the suit of the plaintiff‑respondent was barred by the principles of res judicata and estoppel. The plaintiff‑respondent appealed this finding to the High Court. The High Court held that because the will of Dr Miss Mitter in favour of her mother had not been probated, the mother did not acquire the house by operation of that will, and consequently the mother together with her three daughters each held an equal share in the house. Since the appellant obtained the mother’s share under

The appellant asserted that, under her mother’s will, she had acquired a one‑fourth share of the house in her own right and that, consequently, she was entitled to a one‑half share of the entire property. She brought the present petition before this Court on a certificate that had been issued by the High Court. In addition to relying on the doctrines of res‑judicata and estoppel, the appellant argued that it was unnecessary to obtain a probate of the will of Dr. Miss Mitter that favored her mother in order to successfully claim the house under that maternal will.

The Court held that Section 218 of the Indian Succession Act imposes a mandatory requirement that any right under a will, whether claimed by an executor, legatee or any other person, may be established only after probate or the grant of letters of administration has been obtained. This statutory bar applies irrespective of whether the claimant is a plaintiff or a defence‑making defendant in a suit. The prohibition is not limited to persons who directly claim to be legatees or executors; it also extends to anyone who needs to rely on the rights of a legatee or executor in order to derive a title. Since questions of ownership are not finally determined in proceedings that are merely for the grant of probate or letters of administration, the decision rendered in those probate proceedings cannot operate as res‑judicata in later actions that dispute the title to the property. The Court further explained that estoppel may arise under Section 115 of the Evidence Act when a person, by a declaration, act or omission, intentionally causes another to believe a certain state of affairs to be true and to act upon that belief. On the facts of the present case, no estoppel was found to have arisen. The Court noted the earlier authority of Ghanshamdoss v. Gulab Bi Bai, (1927) I.L.R. 50 Med. 927, as being approved.

The appeal, identified as Civil Appeal No. 273 of 1959, was filed against the judgment and decree dated 17 January 1957 handed down by the Allahabad High Court (Lucknow Bench) in the first Civil Appeal No. 16 of 1950. Counsel for the appellant comprised Sarjoo Prasad, E. Udayarathnam and S.S. Shukla, while counsel for respondent No. 1 were C.B. Agarwala and D.N. Mukherjee. The judgment was delivered on 16 February 1962 by Justice Wanchoo. This appeal, based on the High Court certificate, arose from a suit instituted by Mrs. Bose (the plaintiff‑respondent) who sought a declaration that she owned house No. 10, Ghasiari Mandi Road, Lucknow, or alternatively that she owned two‑thirds of that house. The factual background relevant to the dispute was that the house originally belonged to Dr. Miss Mitter, who died in July 1925. At the time of her death, Dr. Mitter left three sisters—namely, the appellant Mrs. Judah, the plaintiff‑respondent Mrs. Bose, and the defendant‑respondent Mr. Momin—as well as her mother, Mrs. Mitter. The plaintiff‑respondent’s case was that Dr. Miss Mitter had…

According to the plaintiff‑respondent’s case, Dr. Miss Mitter executed a will in April 1921 that left the entire house to Mrs Momin. Subsequently, Mrs Momin purportedly transferred the house by gift to the plaintiff‑respondent, thereby making her the owner of the property. The appellant‑respondent, however, asserted a contrary version. She claimed that Dr Miss Mitter executed a second will in June 1925 bequeathing the house to her mother, Mrs Mitter. After Mrs Mitter’s death, the mother allegedly made a will in April 1930 that vested the house in the appellant‑respondent. No probate was ever obtained for either of the two alleged wills of Dr Miss Mitter dated April 1921 and June 1925. It further appeared that Mrs Mitter continued to reside in the house until her death in 1934. Upon her death, three wills were alleged to have been made by Mrs Mitter, each favouring one of her three daughters – Mrs Bose, Mrs Judah and Mrs Momin. The three sisters each applied for letters of administration, each claiming that the will in her favour was the last will of Mrs Mitter and that the disputed house formed part of the estate under those wills. The house was expressly mentioned in each sister’s application for letters of administration. The court granted letters of administration to the appellant‑respondent, while dismissing the applications of Mrs Bose and Mrs Momin. The dismissed sisters appealed to the then Chief Court of Oudh. That court rejected the appeals of Mrs Bose and Mrs Momin, affirming the dismissal of their applications for letters of administration, but it upheld the grant of letters of administration to the appellant‑respondent and dismissed her counter‑application. The appellant‑respondent then appealed to the Privy Council, which in 1945 allowed her appeal, set aside the Chief Court’s decree, and restored the trial judge’s order granting her letters of administration. During the intervening period, other events occurred. In 1942 Mrs Bose instituted a suit for partition, which remained pending when the Privy Council rendered its decision in March 1945. In December 1945 Mrs Bose applied to withdraw the partition suit and to be permitted to commence a fresh suit, on the condition that she would pay the appellant‑respondent’s costs before filing the new action. In July 1946 Mrs Momin conveyed her interest in the disputed house by gift to Mrs Bose. Later that same year, Mrs Bose filed an application for letters of administration of the will purportedly executed by Dr Miss Mitter in favour of Mrs Momin; this application was objected to by the appellant‑respondent.

The appellant’s request for letters of administration was initially opposed by the appellant, and in 1947 certain preliminary issues were framed. However, Mrs. Bose ultimately chose not to pursue that application and the request was dismissed in 1948. During the same period Mrs. Bose also filed an application seeking the revocation of the letters of administration that had been granted to the appellant; that application was likewise dismissed. Around the same time, in September 1916, Mrs. Bose instituted the present suit, seeking the reliefs that had been set out in the plaint. This suit became the sole proceeding that Mrs. Bose continued to pursue to its conclusion. In the trial court the claim predicated upon the will of Dr. Miss Mitter was abandoned, and the plaintiff‑respondent relied solely on an alternative prayer for a declaration that she was entitled to two‑thirds of the house. The trial court found that Dr. Miss Mitter had indeed executed a will in favour of her mother, although no probate or letters of administration had been obtained for that will. The court also found that Mrs. Mitter had made a will in favour of the appellant and that, by the judgment of the Privy Council in 1945, letters of administration had been granted to the appellant with respect to Mrs. Mitter’s will. Consequently, the trial judge held that the appellant was entitled to the house by virtue of those letters of administration. The court rejected the plaintiff‑respondent’s argument that, because no letters of administration were taken out of Dr. Miss Mitter’s will in favour of Mrs. Mitter, the appellant could not claim a right to the house on the basis of the letters issued to her. Moreover, the trial court concluded that the suit was barred by the doctrines of res judicata and estoppel and therefore dismissed the suit.

The plaintiff‑respondent subsequently appealed to the High Court. Her principal contention before the High Court was that, under section 213 of the Indian Succession Act, No. 39 of 1925, the appellant could not assert any right to the disputed house because the will of Dr. Miss Mitter in favour of her mother had neither been probated nor had letters of administration been obtained for it. The High Court accepted this argument. It also rejected the other contentions raised on behalf of the appellant and allowed the appeal in part. The High Court observed that at the time of Dr. Miss Mitter’s death her three sisters and her mother were alive and thus each was entitled to an equal share of the property left by Dr. Miss Mitter. Nevertheless, the court held that the share that would have belonged to Mrs. Mitter must be deemed to have been bequeathed to the appellant, and that the share belonging to Mrs. Momin must be deemed to have been gifted to the plaintiff‑respondent. Accordingly, the plaintiff‑respondent was entitled to a half‑share in the house. The High Court therefore granted her a declaration of entitlement to that half share.

The decree issued by the High Court declared that the plaintiff‑respondent was entitled to a half share in the house that was the subject of the dispute. Because that decree was a decree of reversal, the appellant obtained a certificate of appeal and consequently brought the matter before this Court. Counsel for the appellant advanced three distinct contentions. First, the appellant argued that the High Court was incorrect in holding that it was necessary to obtain probate or letters of administration of the will made by Dr Miss Mitter in favor of Mrs Mitter, and that, since neither probate nor letters of administration of that will had ever been obtained, the appellant could not rely on the provisions of section 213 of the Indian Succession Act, 1925. Second, the appellant contended that the suit was barred by the principle of res judicata. Third, the appellant maintained that the plaintiff‑respondent was estopped from challenging the title of Mrs Mitter to the property that was in dispute. Regarding the first contention, the Court observed that the factual background showed that Dr Miss Mitter had executed a will in June 1925 bequeathing the house to her mother, Mrs Mitter, but that no probate or letters of administration of that will had ever been secured by Mrs Mitter. It was further noted that, in turn, Mrs Mitter had executed a will in favor of the appellant and had obtained letters of administration of that later will. That later will expressly identified the house as belonging to Mrs Mitter and bequeathed it to the appellant, and the letters of administration granted to the appellant listed the house among the properties that were to pass to her under her mother’s will. The Court then posed the critical question of whether the appellant was required, before relying on the bequest made to Mrs Mitter, to have procured probate or letters of administration of Dr Miss Mitter’s earlier will on behalf of Mrs Mitter. Section 213(1) of the Act was quoted in full, stating that no right as executor or legatee could be established in any court of justice unless a competent court in India had granted probate of the will under which the right was claimed, or had granted letters of administration with the will or an authenticated copy thereof annexed. The Court emphasized that this provision clearly creates a bar to the establishment of any right under a will by an executor or legatee unless the requisite probate or letters of administration have been obtained. It was further explained that the bar operates irrespective of whether the right under the will is asserted by a plaintiff or by a defendant; in either circumstance, section 213 prevents a claim unless the procedural requirement of probate or letters of administration is satisfied, citing the authority of Gansham‑doss v. Gulab Bi Bai. The appellant’s argument that the section should not apply because she had obtained letters of administration of her mother’s will, and that it was unnecessary for Mrs Mitter to have obtained probate of Dr Miss Mitter’s will, was therefore set against the clear language and established interpretation of section 213.

In this case the appellant argued that section 213 would not prevent her claim because she had obtained letters of administration of the will of her mother, Mrs Mitter, under which she sought to enforce her right, and she maintained that it was unnecessary for Mrs Mitter to have obtained probate of the will of Dr Miss Mitter in her favour. The Court observed that it was not contested that the grant of probate or letters of administration does not by itself establish that the testator owned the property that he or she may have devised. Any person who has an interest in the property described in a will remains entitled to institute a suit to establish his or her title notwithstanding that the executor or legatee has already obtained probate or letters of administration, because the proceeding for probate or administration is concerned solely with the due execution of the will and not with the ownership of the assets. Accordingly, when the plaintiff‑respondent asserted that the appellant could not rely on the will of Mrs Mitter to claim full ownership of the disputed house on the ground that Mrs Mitter had not obtained probate or letters of administration of the will of Dr Miss Mitter, the plaintiff‑respondent was in effect challenging Mrs Mitter’s title to the house. The plaintiff‑respondent therefore disputed the claim that Mrs Mitter was the sole owner of the house after the death of Dr Miss Mitter and contended that Mrs Mitter lacked the full right to dispose of the entire property by will.

For the appellant to succeed on the basis of the letters of administration granted to her under Mrs Mitter’s will, she was required to prove that Mrs Mitter was the absolute owner of the house at the time she executed her own will. The appellant could establish this ownership by presenting other evidence. However, if the appellant attempted to rely on the will of Dr Miss Mitter, which purportedly granted Mrs Mitter a legatee interest, as proof that Mrs Mitter owned the entire house, she would be asserting that Mrs Mitter’s ownership derived from her status as a legatee. Sub‑section (1) of section 213 expressly forbids the establishment of any right as a legatee in a court of justice unless probate or letters of administration of the relevant will have been obtained. The Court therefore noted that while the appellant had indeed obtained letters of administration of the will of Mrs Mitter and could maintain her right as a legatee under that instrument, that will only conferred rights over property that truly belonged to Mrs Mitter. It could not create title in the appellant to property that did not belong to Mrs Mitter, even if Mrs Mitter had attempted to include such property in her will. Hence, the appellant was required to demonstrate that Mrs Mitter possessed a full proprietary interest in the house independent of any legatee claim arising from Dr Miss Mitter’s will.

In this case, the Court observed that the appellant had secured letters of administration for the will that purportedly entitled her mother, Mrs Mitter, to certain property. The Court explained that those letters enabled Mrs Mitter to assert her status as a legatee under that particular will, but the effect of the will was limited to the assets that genuinely belonged to Mrs Mitter at the time the will was made. The Court stressed that the will could not convey title to any property that was not truly owned by Mrs Mitter, even if Mrs Mitter had chosen to list such property in the will. Consequently, when the appellant attempted to rely on the will – for which she had obtained letters of administration – to claim that Mrs Mitter was the absolute owner of the house and therefore capable of devising it to the appellant, the appellant was required to establish Mrs Mitter’s title to that house. The Court noted that such title would rest upon Mrs Mitter’s own status as a legatee under the will of Dr Miss Mitter, and thus the appellant was compelled to prove that Mrs Mitter had a legitimate legatee right under Dr Miss Mitter’s will. The Court then turned to Section 213, observing that the provision barred any claim to a legatee or executor right unless probate or letters of administration had been obtained for the will from which the right was derived. The Court clarified that the language of Section 213 was not confined to situations where the person asserting the right was the direct legatee; rather, the provision applied to any party seeking to establish a legatee or executor right, irrespective of who that party was. Accordingly, whether the claimant was the legatee themselves, an executor, or a third party attempting to rely on the legatee’s or executor’s purported title, the Court held that no such right could be recognized unless the underlying will had been probated or administered by the appropriate legal process. Hence, when the appellant sought to demonstrate that Mrs Mitter was the legatee of Dr Miss Mitter and thus entitled to the whole house, the Court required that the will of Dr Miss Mitter in favour of Mrs Mitter must have attracted probate or letters of administration. The Court acknowledged that such probate had not been obtained, and therefore Section 213(1) operated as a complete bar to the appellant’s attempt to prove that her mother possessed full ownership of the property by virtue of the will executed by Dr Miss Mitter. The Court further distinguished this barred claim from any other type of proprietary right that might arise independently of a will.

The Court explained that a clear distinction existed between a right claimed as a legatee under a will and a right that might arise by any other source. In the present matter the right asserted under the alleged will was that Mrs Mitter had become the owner of the whole house. The Court noted that, in the absence of any probate or letters of administration confirming the will, Mrs Mitter would be treated as an equal heir together with her daughters to the property left by Dr Mitter, who would be deemed to have died intestate. Consequently, each of the heirs would be entitled to a one‑fourth share of the property. The High Court, the Court observed, had held that the appellant was entitled only to the one‑fourth share that Mrs Mitter, as an heir, could claim under the intestate succession rules. The High Court further limited the declaration in favour of the plaintiff‑respondent to only half of the house. On this basis the Court affirmed that the High Court was correct in applying section 213, which bars a claim by a legatee unless probate or letters of administration have been obtained. Because no such probate or letters of administration existed for the alleged will of Dr Miss Mitter in favour of Mrs Mitter, the appellant could not rely on her mother’s alleged status as a legatee. Accordingly, the appellant’s contention on this point failed.

Turning to the second issue, the Court considered whether the doctrine of res judicata applied. Counsel for the appellant was unable to identify any prior judgment between the parties that had finally decided the question of title to the house and that would therefore preclude the plaintiff‑respondent from raising the title dispute in the present suit. The Court reiterated that questions of title are not determined in proceedings that are limited to the grant of probate or letters of administration. Hence, whatever decisions might have been rendered in such probate proceedings could not by themselves establish ownership of the house in favour of either the appellant or Mrs Mitter. In particular, counsel for the appellant relied upon a High Court order dated 17 December 1948, which dismissed the plaintiff‑respondent’s application for letters of administration of Dr Miss Mitter’s will. That order had addressed several preliminary issues, one of which concerned an alleged estoppel affecting Mrs Mitter’s right to the property. The Court explained that the application had been dismissed because the applicant, Mrs Bose, failed to appear, leading to dismissal under Order XVII, rule 2 of the Code of Civil Procedure. Because the dismissal was procedural and no determination on the substantive title issue was made, the doctrine of res judicata could not be invoked to bar the present claim. Consequently, the Court rejected the appellant’s argument on this ground. Finally, regarding the question of estoppel, the Court observed that the reliance placed upon Mrs Bose’s own applications for letters of administration was misplaced. In those applications Mrs Bose had depicted the house as belonging to Mrs Mitter, but the applications had been dismissed, and the mere portrayal of the house in that context did not give rise to an estoppel that could prevent the appellant from asserting a contrary claim in the present proceedings.

The Court explained that Mrs. Bose had described the house as belonging to her mother, Mrs. Mitter, in her application for letters of administration, but that the procedural steps leading to a grant of probate or letters of administration do not determine ownership of the property. The Court then turned to the doctrine of estoppel, stating that under section 115 of the Indian Evidence Act estoppel arises only when a person, by a declaration, act or omission, intentionally causes or permits another person to believe a particular fact to be true and to act on that belief. Accordingly, for Mrs. Bose to be estopped from asserting that Mrs. Mitter was not the owner of the whole property, it must first be shown that by presenting the house as Mrs. Mitter’s property in her application, she intentionally caused or permitted the appellant to accept that representation and to rely upon it. The Court found that the appellant could not be said to have acted on the house merely because Mrs. Bose had claimed it belonged to Mrs. Mitter in her filing. After Mrs. Mitter’s death, the three sisters each produced separate wills in their own favour, and there was no indication that any sister acted on a representation made by another. In view of these facts, the Court concluded that no estoppel arose in the present matter. Consequently, the appeal was dismissed, no order as to costs was made, and the appeal was recorded as dismissed.