JUDGMENT 1. The father of the Plaintiff purchased a holding in execution of a decree and had notices under sec. 167 of the Bengal Tenancy Act issued on the Defendants who are under-raiyats. On the death of his father the Plaintiff brought this suit for ejectment. The plea of the Defendants was, amongst others, that the deceased father of the Plaintiff had left a Will under which the Plaintiff was only a part-owner of the property in suit and could not as such eject them. The Plaintiff in his deposition admits that he has heard of the execution of a will by his father. The Defendant produced the will, and the Plaintiff objected to its being proved. The Court of first instance allowed the will to be proved and dismissed the suit of the Plaintiff as incompetent. It has been contended before us that the Courts below are wrong in allowing the Will to be proved and should have proceeded to try the suit, notwithstanding the Will which could be proved only in a proper proceeding under the Probate Act. 2. It is contended that so long as probate is not taken, the estate of the testator must be represented by the heir-at-law. In the case of Prosunno Chandra Bhattacharya v. Krista Chaitanya Pal I. L. R. 4 Cal. 342 (1878), Mr. Justice Markby said :--"I think that until some other claimant comes forward, the party who takes possession of the estate of a deceased Hindu must, in the present state of the law, be treated for some purposes as his representative and a judgment obtained against such a representative is not a mere nullity." The reason given was that otherwise the remedy of the creditor against the estate might be barred by an intentional delay in taking out probate. In the case of Sarbamungola v. Mahendro Nath I. L. R. 4 Cal. 509 (1879), Mr. Justice White allowed a Will to be proved ; although no probate had been granted of the same, the heiress was allowed to prove it for the purpose of construing it and shewing that it was void. This latter case is authority for upholding the proof of the execution of the Will ; that however is not sufficient for passing title under the Will. This latter case is authority for upholding the proof of the execution of the Will ; that however is not sufficient for passing title under the Will. Sec. 187 of the Succession Act applies to the Wills of Hindus and no title under the Will can be established in any Court of Justice unless a probate or letters of administration with the Will annexed has been granted by a competent Court. The Will therefore uncovered as it is by a Probate or Letters of Administration cannot prove that anybody named therein has title to the estate of the testator. The plea of nonjoinder must therefore fail. The question however still remains to be decided--does the Plaintiff represent his deceased father so as to be competent to maintain the suit ? The case of Prosunno Chandra Bhattacharya v. Krista Chaitanya Pal I. L. R. 4 Cal. 342 (1878) is authority for holding that he might, if he is in possession of his father's estate represent him for the purpose of being sued by a creditor. In the case of Choony Lal v. Osmond Bibee I. L. R. 30 Cal. 1044 (1903) the residuary legatee as well as the heir ab intestato were substituted as the representatives of a deceased judgment-debtor, and it was held that the representation was complete. Mr. Justice Markby, in the case of Prosunno Chandra I. L. R. 4 Cal. 342 (1878), says "the executor does not represent the deceased by virtue of the Will until he has obtained probate. Who then represents the deceased who has left a Will until probate has been obtained ? Surely some one must do so, or the law would not have provided that the statute of limitation should run between the death and the grant of probate and it undoubtedly does." If this be the reason why the party in possession should represent the deceased until the Will is proved so far as a claimant against the estate is concerned, there is no reason why the heir in possession should not represent the estate for the benefit of the estate against persons liable to the estate. Just as the decree against the party in possession may be available to the creditor for working out his remedy against the executor when he obtains probate, the decree obtained by the party so in possession may enure to the benefit of the claimants under the Will when they can rely on the same as their deed of title. The heir-at-law may claim adversely to the Will, he may impeach the validity of the Will notwithstanding that execution is proved: he may have various defences available to him against any claimant under the Will. 3. In any case, if he can prove that he has come into possession of the general estate of his father, he can as the legal heir maintain a suit for the benefit of the estate, so long as any other claimant does not establish his right to the same under the Will. The learned Munsif in this case was satisfied with the mere proof of the execution of the Will. The Will although in Court was not even put to the Plaintiff when he was examined. We think that the judgments of the Courts below should be set aside, and the case sent back to the first Court for decision on the merits after allowing the parties opportunity for adducing such evidence as may be relevant. The Plaintiff is entitled to the costs of this and the lower Appellate Court. The costs in the first Court will abide the result.