LexMRS. HEM NOLINI JUDAH (SINCE DECEASED AND AFTER HER LEGAL REPRESENTATIVE MR. MARLEAN WILKINSON versus MRS. ISOLYNE SAROJBASHINI BOSE AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
196Z
·Tift Ca~mnnunt of
A..dAta Prodtsh
v.
Sy1d Mohd. KA.Jn
Gajt.ndragadkar J,
294 SUPREME COURT REPORTS [1962] SUPP.
bas to ho tried by the Central Government and it
is only after the Central Goyernment has reached
the conclusion that the rcspondentH have acquired
the citizcnHhip of Pakistan that the appellnnt can
issue orders of deportation against. them.
That
. being our view, we confirm the writs issued by the
High Court restraining the <ippdlant from giving
effect to the impuc:ncd orders of deportation until
the question about tho respcmdents' status is deter·
mined by the Central Government.
There wou hi
be no order aR to costs.
Appe-1ls allowed.
MRS. HEM NOLIN! JUDAH (SINCE Dl~CEASEDJ
AXD AFTER HER LEU AL ltEPRESE!'\TATIVE
MR. ?llARLEA!'\ WlLKIN::iON
t'.
MH.S. ISOLYNJ<; SAltO.J BASHINI BO~t<;
AND OTHEHS
(P. B. GA.JE:>DHAGAJJI<AH, A. K. SAHKAit and
K. N. 'WAXL'llOO, JJ.)
lrilt-J>rnlirrfe-Leff ers of A rlmin isf7 a! inn -Est alili-'i h nunt
of right-l..t:galrr.-Other 111'.rson.~· cla,·niinq under leyrllt:c-JJar of
cl11i1ns-l'r0Uate procr.t?rli ngs-Titlr--.\T ot dr.f crniin£d-Rcs-jud-i-
caJa·-Estopp(/-l n<tir1n S"ccl!S-~inn Act, !92:i(3.fl of J.92;)), s. 21.)
1
(1)-Co<ie of Cid/ l'roce.fore., 1rws (Acl, .-; nf JflflS) s. 11-
.A
Jnrlilln Etirl,,nce .1ct, 1872 (I of 1872), ·'· JJ.-;_
Onr- Dr. Mi~ Mitter \\'ho owncrl a house died leaving
her mother and three sisters. The plaintiff re~pondent filed a
~uit for a declaration that she \\'as the OYnier of the house.
Her case \\.'as that the dect:asr.d gave the hou:::c to ~frs. ~Ion1in
(another sister) by a will and Mrs.
~fo;nin in turn gifted the
house to the plaintiff. The cas.-· of Mrs. Judah, the defcndant-
appellant was that Dr. Miss Miller had bequeathed
the
house by a will in
favour of
h~r 1noth('r who in turn
bequeathed the house to her by a will.
!\dmiucdly no probate
. of either of the wills alleged to luvc bl'cn made by Dr. Miss
i'fit1er was taken out. The mother died and it was allegec!
•
3 s.c.R.
SUPREME COURT REPoRTS
295
that she had executed three wills one in favour of each of
three daughters.
Applications wore flied by each of the
daugr1tcrs for letters of administration each claiming that the
will m her favour was the last will of Mrs. Mitter.
Each of
the alleged wills include the house in question among the
properties of the decea1rd.
The application of the appellant
\\'.iS granted while the other two app1ication vvere rejected.
Appeals were filed by the two sisters whose application were
rejected. The appellate court while rejecting their claims for
granting letter.s of administration in favout'. of the present
appellant. The appellant thereupon appealed to the Privy
Council and the Privy Council allowed her appeal. The
respondent then filed the suit out of which the present appeal
has arisen claizning a declaration that she \Vas the owner of
the hous"e in whole or to the extent of two-thirds. The trial
\OUrt found the <lefendant·appellant became the owner of the
nouse under the will of Mrs. ·Mitter and the suit of the
plai11liff-respondent was barred by res-judicata and estoppel.
Tbe plaintiff-respondent took the matter in appeal to the
High Com t. The High Court held that as the will of
Dr. Miss Mitter in favour of her mother was not probated the
latter did not acquire the house un~er the will and therefore
the mother alongwith her three da•1gh1ers took equal share
in the house.
Since the appellant got the mother's share
under lier will and she had got one fourth share of the house
in her own right she was entitled to one half share of the
house in all. The appellant has come upto this Court on a
a certificate granted by the High Court. Apart from the
pleos of rcs-judicata and estoppel the appellant contended
that it \Vd.S not necessary to obtain probate of the will of
Dr. Miss l\1ittcr in favour of her n1other in order to success-
fully claim the house under the will of her mother in her
favour.
field, that s. 218 of the Indian Succession Act is a bar
to the establishment of any right under a will by <1:n executor
or legatee unless probate or letters of administration have
bt"en obtained. This bar operates
irrespective· of the fact
that the right is claimed by a plaintiff or a defendant in a
~uit. The bar .:s not restricted only to cases in whieh the
clairn is made by a person directly claiming as a legatee or
execL tor Lut it applies also ti) any personExcerpt shown. Read the full judgment & AI analysis in Lexace.