KALARIKKAL THRESSIAMMA Vs. KALLIDUKKANANIKKAL JOSEPH

JUDGEMENT

(1.) Fifth and sixth defendants in the suit are the revision petitioners herein. Originally the 1st respondent herein filed a petition under Section 278 of the Indian Succession Act, to grant Letters of Administration of the Will. As the matter was contested as per Section 295 of the Act, the Original Petition was converted into a regular suit. Thereafter, a preliminary question was raised by the petitioner contending that in the light of the amendment to sub-section (2) to Section 213 holding that sub-section (1) to Section 213 shall not apply to Christians, the proceedings are unnecessary and the proper course is to file a regular suit. By invoking the summary procedure, the petitioners are deprived of their regular contest in the matter. In that context, learned counsel for the petitioner referred to the decision in Hajira Khatoon v. Mustafa Husain, AIR 1941 Oudh 474. Learned counsel appearing on behalf of the 1st respondent submitted that there is no bar under Section 213 of the Act to get the will probated and in case of contest, the O. P. is converted into a regular suit and, therefore, there is no prejudice for the petitioner.

(2.) I have heard the counsel.

(3.) There cannot be any dispute that there is no bar for a Mohammedan or Christian to get the will probated if they choose. The bar under sub-section (1) to Section 213 is to the effect that unless a will is probated, no rights as an executor or legatee can be established. In other words, without probating a Will, the legatee is not entitled to claim the benefits under the Will. This restriction is now lifted to Christians. There is no need for a legatee to get the Will probated. However, this provision does not bar a legatee to get a will probated if he desires. By reading sub-section (2), no inference can be drawn to the effect that there is a bar for Mohammedans or Christians from getting a will probated.