Unprobated will cannot defeat heir-at-law title without probate when a defendant seeks to set up rights under it.

A defendant resisting a plaintiff's prima facie title as heir-at-law cannot rely on an unprobated will to establish a right under it, because probate is required before a legatee's title can be set up in court. The will may have limited collateral relevance, but it cannot be used to displace title by proving rights in the person claimed under the will without probate. The plea of jus tertii also fails unless the defendant traces title to a specific third person whose right can lawfully be established. An unprobated will therefore cannot defeat the plaintiff's claim in this manner.

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Issues: Whether a defendant resisting a plaintiff's claim as heir-at-law can rely on an unprobated will in defence without establishing a right under that will.

Analysis: Section 187 of the Indian Succession Act, 1865, and the corresponding principle in Section 213 of the Indian Succession Act, 1925, prohibit the establishment of a right as legatee unless probate has been granted. The mere existence of a will may be relevant for limited purposes, but where the defendant seeks to displace the plaintiff's prima facie title as heir-at-law, the defendant must prove a better title in the person claimed under the will. That cannot be done by using an unprobated will to establish rights under it. The plea of jus tertii does not assist unless the defendant traces title to a specific third person whose right can lawfully be established.

Conclusion: A defendant cannot use an unprobated will as a defence to defeat the plaintiff's title where doing so would amount to establishing a right under the will without probate.

Ratio Decidendi: An unprobated will may be relied on only for limited collateral purposes, but not to establish or displace title as legatee in court without probate.

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