MRS. HEM NOLINI JUDAH (SINCE DECEASED AND AFTER HER LEGAL REPRESENTATIVE MR. MARLEAN WILKINSON versus MRS. ISOLYNE SAROJBASHINI BOSE AND OTHERS

MRS. HEM NOLINI JUDAH (SINCE DECEASED AND AFTER HER LEGAL REPRESENTATIVE MR. MARLEAN WILKINSON versus MRS. ISOLYNE SAROJBASHINI BOSE AND OTHERS

Section 213(1) of the Indian Succession Act creates a bar to establishing a right under a will, whether as plaintiff or defendant, unless probate or letters of administration have been obtained; this bar applies even where the party claims title through another legatee or executor. As no probate or letters of administration had been obtained in respect of Dr. Miss Mitter’s will in favour of Mrs. Mitter, the appellant cannot claim that her mother acquired absolute title to the house by that will. The claim to the property by the appellant can succeed only to the extent of the intestate share Mrs. Mitter would have in the property, and not in respect of the entire house as if Mrs. Mitter...

Parties
Appellant: Mrs. Hem Nolini Judah (since deceased and after her legal representative Mr. Marlean Wilkinson); Respondent: Mrs. Isolyne Sarojbashini Bose
Jurisdiction
India
Judgment Date
16 February 1962
Procedural Posture
Civil Appeal / Supreme Court Appeal From the Judgment and Decree Dated January 11, 1957, of the Allahabad High Court (lucknow Bench) in First Civil Appeal No. 16 of 1950
Outcome
Appeal dismissed.
Legal Topics
Probate and Letters of Administration, Establishment of Right Under Will, Res Judicata, Estoppel, Title to Property
Succession Law Property Law Civil Procedure Probate and Letters of Administration Establishment of Right Under Will Res Judicata Estoppel Title to Property

Case Brief

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Parties

Mrs. Hem Nolini Judah (since deceased and after her legal representative Mr. Marlean Wilkinson)

Appellant

Mrs. Isolyne Sarojbashini Bose

Respondent

Procedural Posture

Civil Appeal / Supreme Court Appeal From the Judgment and Decree Dated January 11, 1957, of the Allahabad High Court (lucknow Bench) in First Civil Appeal No. 16 of 1950

Legal Issues

  1. 1 Whether it was necessary to obtain probate or letters of administration of the will executed by Dr. Miss Mitter in favour of Mrs. Mitter before the appellant could claim title through Mrs. Mitter to the house in dispute under Section 213 of the Indian Succession Act, 1925.
  2. 2 Whether the suit was barred by res judicata or estoppel.

Ratio Decidendi

Section 213(1) of the Indian Succession Act creates a bar to establishing a right under a will, whether as plaintiff or defendant, unless probate or letters of administration have been obtained; this bar applies even where the party claims title through another legatee or executor. As no probate or letters of administration had been obtained in respect of Dr. Miss Mitter’s will in favour of Mrs. Mitter, the appellant cannot claim that her mother acquired absolute title to the house by that will. The claim to the property by the appellant can succeed only to the extent of the intestate share Mrs. Mitter would have in the property, and not in respect of the entire house as if Mrs. Mitter...

Court Disposition

Appeal dismissed.

Orders

  • No order as to costs.