JUDGMENT V. Khalid, J. 1. The rigour of the statutory mandate contained in section 213 of the Indian Succession Act (for short the Act) falls for consideration in this Second Appeal. The defendant-appellant assails the decrees of the courts below on the ground that they have been passed without jurisdiction since the right enforced by the decree was based on an unprobated Will. The plaintiff-respondent support's the decrees with the plea, that the right claimed is not on the strength of the Will but on the strength of the earlier decrees between the parties in which the Will was not questioned. 2. The suit was for a declaration of title and for recovery of possession. Item 1 is a garden land and Item 2 a building standing on it. One Augusthy Thommen had executed Ext. A-4 Will in favour of the plaintiff, who is his son-in-law. The defendant is the son of Kathri, the youngest daughter of Thommen. Under Ext. A-4 the suit properties were bequeathed to the plaintiff, reserving life interest in favour of the testator's wife, Anna and his daughter, Kathri. The testator died in 1115 M.E. His widow was, thereafter, in possession of the property. She was residing in the house with Kathri and her son, the defendant. Anna died on 17th November 1960. The plaintiff, thereupon filed O.S. No. 275 of 1960, in Palai Munsiff's Court, for recovery of possession from Kathri. The matter came up to this Court and this Court in second appeal dismissed the suit, holding that the property could be recovered only after the life-time of Kathri. Kathri died on 4th July 1975. The defendant had been continuing in possession even thereafter. Hence the suit. 3. The defendant resisted the suit contending that he was a tenant, that he had effected valuable improvements and that he was entitled to be compensated for the improvements. 4. The trial court negatived the contentions of the defendant and decreed the suit. In appeal the defendant raised an additional contention that the suit was not maintainable since the Will, of which the suit was laid was unprobated. Hence this second appeal. 5. Although two questions were formulated for consideration in the,memorandum of second appeal, notice was issued only on the first question, which reads as follows: "Whether the suit on an unprobated Will is maintainable". 6. Hence this second appeal. 5. Although two questions were formulated for consideration in the,memorandum of second appeal, notice was issued only on the first question, which reads as follows: "Whether the suit on an unprobated Will is maintainable". 6. The trial court considered the plea of tenancy raised and held against the defendant. The claim for value of improvements was also rejected. On the admission by the defendant, that he had no right in the property as per the Will, a decree in terms of the plaint, was passed by the trial court. The maintainability of the suit was not challenged in the trial court. 7. In the appellate court, for the first time, the maintainability of the suit was raised on the ground that the Will was unprobated. The defendant did not press his claim for kudikidappu nor the claim for value of improve?ents before the appellate court. The only point that was considered by the appellate court was whether the plaintiff was entitled to recover possession of the property on the basis of the Will. 8. In support of the defendant's case, reliance was placed upon a judgment of this court reported in Geevarghese Geevarghese v. Issahak George (A.I.R. 1971 Kerala 270). There the Court held that a decree on an unprobated Will could not be passed. The principle enunciated in that judgment was distinguished by the appellate court on the following facts. The defendant's mother Kathri instituted O.S. No. 4 of 1124, in Meenachil Munsiff's Court against the plaintiff herein for realisation of certain amounts due to her on the basis of the Will. Though the suit was dismissed by the trial court it was decreed by the appellate court, as per Ext. A-8 judgment relying upon the Will. The plaintiff herein instituted O.S. No. 275 of 1960 in the Palai Munsiff's Court, for recovery of the property from the defendant's mother basing his claim on Ext. A-4 impleading the present defendant also. The trial court dismissed the suit; the appellate court decreed it; and this court restored the decree of the trial court. Exts. A-5, A-6 and A-7 respectively are the judgments of the three Courts. The suit was dismissed on the ground that it was premature, since the plaintiff could sue for recovery only after Kathri's death. The trial court dismissed the suit; the appellate court decreed it; and this court restored the decree of the trial court. Exts. A-5, A-6 and A-7 respectively are the judgments of the three Courts. The suit was dismissed on the ground that it was premature, since the plaintiff could sue for recovery only after Kathri's death. The appellate Judge decreed the suit in this case on the ground that the validity of the Will was not questioned nor its admissibility disputed in the earlier proceedings, and distinguished A.I.R. 1971 Kerala 270 on facts. 9. The appellant's counsel forcefully contends that the finding: of the appellate court is erroneous and is not in accord with the settled principles of law. According to him, the requirements of section 213 of the Act are unvoidable and a decree passed not in conformity with the said section is without jurisdiction. 10. Krishna Iyer. J. in Geevarghese Geevarghese v. Issahak George (A.I.R, 1971 Kerala 270) had to consider a similar question. There the suit was based on a document (Ext. D-3) about the legal incidents of which there was dispute. The trial court held it was a gift. The appellate court held it was a Will. If it was a Will it was governed by the Travancore Wills Regulation Act (6 of 1074 M.E.) Under the above Regulation a Will can be proved by showing that it had been deposited as provided under Part 9 of the Wills Act or by registration or by producing a probate. If the Will was to take effect as a testamentary disposition it was enough if it was proved in the manner indicated in section 16 read with section 22 of that Regulation. In that case, as in this case, the Will had been registered and if the Travancore Wills Act applied a probate was not necessary for getting the rights under the Will enforced. It is useful to note that Regulation 6 of 1074 M.E. was repealed by Part B States (Laws) Act, 951, which came into force on 1st April 1951. It was still contended, that since all that was necessary under the law as It then stood, for a valid Will to be effective had been done, a probate was not necessary. That argument was repelled by the learned Judge, who observed as follows: "In my view, section 213 (1) governs this matter. It was still contended, that since all that was necessary under the law as It then stood, for a valid Will to be effective had been done, a probate was not necessary. That argument was repelled by the learned Judge, who observed as follows: "In my view, section 213 (1) governs this matter. When it says that no right can be established in any court unless a court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, it really lays down the exclusive manner of establishing a right under a Will. In short, it is processual and not substantive and, therefore, applies to Wills of anterior dates which are sought to be proved on a posterior date. It may inflict hardship for a legatee who claims under a Will which has been registered in compliance with the Travancore Wills Act long ago, but the law that applies being the one that prevails when the right of the legatee is sought to be established in court, the application of the Indian Succession Act cannot be inhibited. Indeed, the decision in A.I.R. 1962 S.C. 1471 more or less supports this approach. I therefore hold that the appellate court when it found that Ext. D-3 was a Will and not a gift should have insisted upon the Will being probated before a decree was granted." The identical question is raised before me also. Section 213 (1) lays down the manner in which the right under a Will is to be established. It is a procedural matter. The right created is only processual and not substantive and therefore, compliance with the requirements of this section is necessary for all the Wills both posterior to 1st April 1951 and anterior to that date. Therefore, a Will, which is unprobated cannot be used for securing a decree to enforce the rights under it. 11. In this case, since the bar under section 213 was not raised before the trial court, nor covered by pleadings it was contended by the respondent's counsel that the plea should not have been allowed to be agitated before the appellate court and for that reason before this Court also. 11. In this case, since the bar under section 213 was not raised before the trial court, nor covered by pleadings it was contended by the respondent's counsel that the plea should not have been allowed to be agitated before the appellate court and for that reason before this Court also. This contention, according to me, has to be rejected, for the plea based on section 213 of the Act affects the jurisdic?ion of the Court to pass a decree and a decree passed on a Will without being probated can always be attacked as a jurisdictional question. In the above Kerala case the plea was not raised either before the trial court or in the appel?ate court, but, still this Court held: "This section creates a bar to the establishment of a right under a Will by a legatee unless probate has been obtained. Counsel for the appellant urges, relying upon A.I.R. 1962 S.C. 1471, that section 213 sub-section (1) clearly forbids the assertion of ownership by the 1st plaintiff in the suit since no probate has been obtained and produced into court. It must be said, in fairness to the plaintiff, that no such plea had been taken in the court below. Even so, it was the obligation of the District Court, which construed Ext. D-3 as a Will, to see that section 213 was not bypassed. The point, therefore, falls for consideration whether, without a probate of the Will being obtained, the present suit is maintainable." With great respect, I am in complete agreement with what is stated above. 12. The above decision is attempted to be got over by the respondent's counsel on the facts of this case. In this case the Will Ext. A-4 was the subject-matter of two earlier litigations, one at the hands of the defendant's mother and the other at the hands, of the plaintiff. In both the cases, rights were claimed under the Will. In neither case was the question that the Will could not be enforced without a probate raised. The respondent's counsel would contend that the validity of the Will and its admissibility had been accepted, and the matter had, thus, become final; and, in any case, the defendant's plea was barred by res judicata since he was also a party in the suit filed by the plaintiff against his mother for recovery of possession of the property. The respondent's counsel would contend that the validity of the Will and its admissibility had been accepted, and the matter had, thus, become final; and, in any case, the defendant's plea was barred by res judicata since he was also a party in the suit filed by the plaintiff against his mother for recovery of possession of the property. This plea, at the first flush, appears to be well-founded, for, the validity and admissibility of the Will, without being questioned, had been impliedly recognised by two earlier decisions in one at least the present defendant himself was a party. In such cases a party cannot, it was contended, reagitate the question of the validity of the Will, for, the safeguards in section 11 Civil Procedure Code for finalitv of proceedings should foreclose the defendant from taking up a plea concluded against him. But on a further probe this prima facie impression proves faulty. Hem Nolini v. Isolvne Saroj Bashini (A.I.R. 1966 S.C. 1471), which was noted in the earlier Kerala case and Mathura Prasad v. Dossibai (A.I.R. 1971 S.C. 2355) have laid down the law. The facts in 962 S.C. 1471 have to be clearly set out to appreciate the rigidity of the mandate contained in section 213 of the Act. The appellant's counsel heavily relied upon this decision and contended that there was no escape from the law laid down by the Supreme Court. I shall briefly refer to the facts of the case. 13. The subject-matter of the suit was a house. The house originally belonged to one Dr. Miss Mitter. She died in July 1925, leaving as her heirs her mother and three sisters, Mrs. J , Mrs. B. and Mrs. M. Her mother is Mrs. Mitter. Mrs. J. was the defendant and Mrs. B. the plaintiff." Dr. Miss Mitter made a Will in favour of her sister Mrs. M. in April 1921 bequeathing the entire house to her, who in turn made a gift of the house to the plaintiff. The plaintiff's claim was that she had become the owner of the house. The defendant put forward another Will of Dr. Miss Mitter made in June, 925 bequeathing the house to her mother Mrs. Mitter. Subsequently, the mother made a Will in favour of the defendant in April, 1930. It appears that the mother had executed three Wills, one each in favour of her three daughters. The defendant put forward another Will of Dr. Miss Mitter made in June, 925 bequeathing the house to her mother Mrs. Mitter. Subsequently, the mother made a Will in favour of the defendant in April, 1930. It appears that the mother had executed three Wills, one each in favour of her three daughters. It is significant to note that probates were not taken of the two Wills of Dr. Miss. Mitter made in 1921 in favour of Mrs. M. and in 1925 in favour of the mother. On the death of the mother the three daughters propounded the three Wills and filed applications for letters of Administration, each claiming the Will in her favour to be the last Will of the mother. Ultimately, the Judicial Committee of the Privy Council upheld the defendant's Will and confirmed the decree of the Chief Court granting letters of administration to her. The appeal before the Supreme Court arose from a suit by Mrs. B. (the plaintiff) for a declaration that she was the owner of the house, with an alternative relief for a declaration not based on the Will that she was the owner of 2/3 of the house. The suit was dismissed by the trial court on the ground that the defendant had obtained letters of administration of her Will while the plaintiff had not; therefore, her claim for the 2/3 right in the house independent of the Will was also rejected. The plaintiff had contended before the trial court that the defendant's case, that she was entitled to relief on the strength of her Will, in relation to which letters of Adminis?ration was granted, cannot be accepted since the Will to the mother was not probated. The trial court repelled this contention. In appeal before the High Court the case, that the defendant could not claim any right in the house in dispute as the Will of Dr. Miss Mitter in favour of her mother was neither probated nor letters of Administration obtained, was, again put forward. The High Court accepted the contention and decreed the suit in part. Before the Supreme Court the identical question was again raised. Miss Mitter in favour of her mother was neither probated nor letters of Administration obtained, was, again put forward. The High Court accepted the contention and decreed the suit in part. Before the Supreme Court the identical question was again raised. After quoting section 213 (1) of the Act, the Supreme Court observed thus: "This section clearly creates a bar to the establishment of any right under Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained. It is now well settled that it is immaterial whether the right under the Will is claimed as a plaintiff or as a defendant; in either case S. 213 will be a bar to any right being claimed by a person under a Will whether as a defendant unless probate or letters of administration of the Will have been obtained." That section 213 is inviolable is clarified by the Supreme Court in the following observation: " As soon as the appellant wants to prove that section 213 Will immediately stand in her way for no right as an executor or legatee can be proved unless probate or letters of administration of the Will under which such right is claimed have been obtained. The words of section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the Will under which he claims. What it says is that no right as an executor "or legatee can be established in any Court of Justice unless probate or letters of administration have been obtained of the Will under which the right in claimed, and therefore it is im?aterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish the right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the Will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration." 14. Considerable stress was laid by the respondent's counsel on the following observation of the Supreme Court in support of his contention, that a party could establish the right in the property by other evidence, though the Will is not probated. He took me through paragraphs 6, 7, 8 and 13 of the plaint. The contention was that the case put forward was not on the basis of the Will, but, on the basis of the earlier judgments. According to me the aver?ents in the plaint are not clear to support the plea, that the cause of action was not on the Will but on the earlier decrees. Even so, I will examine the case put forward. The following is the observation relied upon for the purpose: " In order therefore that the appellant should succeed on the basis of the letters of administration of the Will of Mrs. Mitter which had been granted to her with respect to this house, she had to show that Mrs. Mitter was the full owner of this house at the time she made the Will in her favour. Now the appellant could show this by other evidence; but if the appellant wanted to rely on any Will of Dr. Miss Mitter in favour of Mrs. Mitter, in proof of full ownership of Mrs. Mitter of this house, it would amount to this that the appellant was saying that Mrs Mitter was the owner of the house as the legatee under the Will made by Dr. Miss Mitter." Reliance is placed on the sentence: "Now the appellant could show this by other evidence". According to me, reliance on this sentence is mis-placed. I will agree (to meet this argument) that the suit is based on the earlier judgments. That did they decide. If anything, that the plaintiff has title. A declaration of title alone is not sufficient for the plaintiff. He must get a decree for recovery of possession. It is there that the need for a probate arises. The Supreme Court has not laid down that a right flowing from the Will can be enforced otherwise than in accordance with section 213 of the Act. The above observation is based on the facts of that case. He must get a decree for recovery of possession. It is there that the need for a probate arises. The Supreme Court has not laid down that a right flowing from the Will can be enforced otherwise than in accordance with section 213 of the Act. The above observation is based on the facts of that case. What was emphasised in that case was that the plaintiff had to establish the fact that her mother was the full owner of the house on other evidence, since she was entitled only to 1 /4 share in the property as an heir to her daughter. She cannot pass on the full right in the property to the plaintiff when the Will in question was not probated. This matter is further eluci?ated by the Supreme Court in the same judgment: "The difference between a right claimed as a legatee under a Will and a right which might arise otherwise is clear in this very case. The right under the Will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the Will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died inte?tate, and would thus be entitled to one-fourth. It will be seen from the judgment of the High Court that it has held that the appellant is entitled to the one-fourh share to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted the plaintiff respondent a declara?ion with respect to only half the house. Therefore, the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged Will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must therefore fail." The principle laid down in this case, according to me, is a complete answer to the case put forward in this second appeal. It has therefore to be held that the plaintiff is not entitled to a decree although the Will had been the subject matter of two earlier cases, since the Will had not been probated. 15. It has therefore to be held that the plaintiff is not entitled to a decree although the Will had been the subject matter of two earlier cases, since the Will had not been probated. 15. To make the discussion complete, I shall refer, in passing, to some other cases cited at the bar. The respon?ent's counsel referred me to State v. Devassy Lonappan (A.I.R. 1956 T. C. 215) and strongly relied upon it to hold that the suit was main?ainable without compliance with the provisions of section 213. There the suit related to the rent of certain buildings, which the plaintiff obtained by a registered Will. The rent claimed was for a period subsequent to the death of the testator. The State was the defendant. It was contended that in the absence of a probate and a succession certificate the suit was not maintainable. A Division Bench of the Travancore Cochin High Court held that a succession certi?icate was not necessary because the rent claimed was future rent. It also held that compliance with section 213 of the Act also not necessary. There the relief claimed was on the strength of a letter, Ext. D, sent by the State to the plaintiff, where in the defendant had acknowledged the plaintiff's right to receive rent. Therefore the Court held that the suit was instituted by him " not under the Will shut in his own right as acknowledged by the State". Thus 'there is a clear finding on the facts of that case that the suit was laid not under the Will and by this fact distinguishes that case from the present case. The acknowledgment by the State will come within the expression " other evidence", which the Supreme Court had in mind in 1962 S. C. 1471. 16. He then referred me to Kotaki Ranjan v. Kali Prasanna (A.I.R. 1956 Tripura 18), to contend that "an unprobated Will can be looked into for all collateral purposes. It is admissible in evidence to show that the legatee was never in permissive possession". This is of no help to the respondent. Reliance was then placed on the decision reported in Sheonath Singh v. Kadanlal (A.I.R, 1959 Rajastan 243). That case arose in relation to a Will to which originally the Jaipur Succession Act (19 of 1943) applied. There one K made a Will with respect to his property to the defendant. This is of no help to the respondent. Reliance was then placed on the decision reported in Sheonath Singh v. Kadanlal (A.I.R, 1959 Rajastan 243). That case arose in relation to a Will to which originally the Jaipur Succession Act (19 of 1943) applied. There one K made a Will with respect to his property to the defendant. The plaintiff, as the nearest heir to K, filed the suit, after his death, for cancellation of the Will and possession of the properties. The suit was filed on the ground that the Will was not probated under section 213 and section 57 of the Jaipur Succession Act, which sections made it obligatory for a Will, within the area comprised in the Jaipur State, to be probated. However, during the pendency of the case, the Indian Succession Act was extended to the territory occupied by the Jaipur State. Section 213 and section 57 of the Indian Act exempted such a Will from being probated. The defendant resisted the suit on the ground, that under the Indian Act there was no necessity for the Will to be probated. This contention was accepted and the suit was dismissed, which was confirmed by the High Court. There was another contention, that the plaintiff had acquired a vested right under the Jaipur Act in so far as the defendant's Will, without being probated, could not be enforced in a court of law. The High Court held, with respect, correctly, that section 213 laid down a rule of procedure and it was retrospective in operation. I read the head note, which reflects the correct legal position: "What section 213 really does is that it lays down a rule of procedure, that rule being that a person seeking to establish his right in any court of justice as executor or legatee under a Will must have obtained the probate of the Will under certain circumstances mentioned in the section. * * * * The position, therefore was that there was one rule of procedure as laid down by section 213 of the Jaipur Act when the Will happened to be made in this case according to which the obtaining of a probate was necessary before the legatee could successfully establish his right as such in a court of law. * * * * The position, therefore was that there was one rule of procedure as laid down by section 213 of the Jaipur Act when the Will happened to be made in this case according to which the obtaining of a probate was necessary before the legatee could successfully establish his right as such in a court of law. This rule underwent a change when the Indian Act after the repeal of the Jaipur Act came to hold the field from April, 1951, onwards and according to this rule the obtaining of a probate by a legatee with respect to a Will executed by a resident in Rajasthan State or even by a non-resident with reference to immovable property situate in Rajasthan State was no longer necessary. In these circumstances it must be held that section 213 of the Indian Act merely lays down a rule of procedure just as did section 213 of the Jaipur Act though the content of the two rules is not the same and the later one does away with the restrictions prescribed by the earlier one." This again cannot help the respondent. 17. It was then contended that the defendant's plea was barred by res judicata since he was himself a party (as 2nd defendant) to the case filed by the plaintiff's title was accepted. That was a suit against the defendant and his mother, Kathri. At that time Kathri was in possession of the property on the strength of the life-interest in her favour under the Will. This Court, ultimately dismissed the suit holding that the suit Was premature and could be filed only after the death of Kathri. It was contended that the title of the plaintiff under the Will was recognised in that suit, and the suit was dismissed only on the ground that it was premature. The present suit has been filed after the death of Kathri. The judgment in O.S. No. 275 of 1960 is a judgment inter-parties and is binding on the defendant. It was contended that the title of the plaintiff under the Will was recognised in that suit, and the suit was dismissed only on the ground that it was premature. The present suit has been filed after the death of Kathri. The judgment in O.S. No. 275 of 1960 is a judgment inter-parties and is binding on the defendant. Strong reliance was placed for this contention on the obser?ation of the Supreme Court in A.I.R. 1962 S.C. 1471 paragraph 8, which reads as follows: "Turning now to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter-parties in which the question of title to this house has been decided and which would bar the plaintiff-respondent from raising the question of title which she has raised in the present suit. As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs. Mitter." I am afraid this reliance also is mis-placed. The Supreme Court has not laid down that a judgment inter-parties on title would obviate the need for a Will to be probated. There the plaintiff's claim was attempted to be resisted with the plea that title to the property had been finally decided by the Privy Council in the letters of administration pro?eedings, the order in which operated as res judicata. The case put forward was that by grant of letters of administra?ion on one of the Wills propounded, title was found, which finding, therefore, bars a readjudication of the title between the parties. It was in this connection that the Supreme Court observed that in proceedings relating to letters of administration title did not fall to be decided. The plea that the question of title had been decided in a judgment inter-parties (meaning the probate proceedings) was rejected on that ground. That observation cannot help the plaintiff in this case to get over the bar under section 213 of the Act but may help him to contend that title had been finally decided. 18. I shall now consider the question: Can a decree passed without compliance to section 213 of the Act operate res judicata in subsequent proceedings. According to me it cannot. 18. I shall now consider the question: Can a decree passed without compliance to section 213 of the Act operate res judicata in subsequent proceedings. According to me it cannot. The matter is settled by the Supreme Court in the decision reported in Mathura Prasad v. Dossibai (A.I.R. 1971 S.C.2355). I shall state the facts of the case for a proper understanding of the questions involved. Section 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, enabled a person to make an application for determination of the standard rent in relation to open land let for construction of buildings etc. [section 6 (1) of the Act]. The petitioner there, who got a lease, constructed buildings on the land. He then submitted an application in the Court of the Civil Judge for fixation of fair rent. The application was dismissed holding that the Act did not apply to open land let for constructing buildings. This order was confirmed by a Single Judge of the Bombay High Court. However, the High Court of Bombay, held in another case reported in Vinayak Gopal v. Lexmen Kashinath Athavala (A.I.R. 1957 Bombay 94), that the question whether section 6 (1) of the Act applied to any particular lease must be determined on its terms and a building lease in respect of an open plot was not excluded from section 6 (1) of the Act. Relying upon this judgment another petition was filed before the Court of Small Causes requesting determination of the standard rent of the premises. The trial Judge rejected the application holding that this question was decided in the earlier case and was res judicata. This was confirmed by a Bench of Small Causes and by the High Court of Bombay. The Supreme Court had to consider this question in appeal, with Special Leave. (It may be mentioned here that the earlier view of the Bombay High Court on the first application was overruled by the Supreme Court in Mrs. Bosaibai M. B. Jee Jeebhoy v. Khemchand Gorumal (A.I.R. 1966 S.C. 1939). Before the Supreme Court also the bar of res judicata was raised. It was contended that since the same question has been decided earlier that decision operated as res judicata between the parties. Bosaibai M. B. Jee Jeebhoy v. Khemchand Gorumal (A.I.R. 1966 S.C. 1939). Before the Supreme Court also the bar of res judicata was raised. It was contended that since the same question has been decided earlier that decision operated as res judicata between the parties. While observing the facts of the case the Supreme Court observed thus: "It was also assumed by the High Court that a decision relating to the jurisdiction of the Court to entertain or not to entertain a proceed?ng is binding and conclusive between these parties in respect of the same question in a later proceeding." The Supreme Court then observed: "But the doctrine of res judicata belongs to the domain of procedure, it cannot be exalted to the stature of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties, has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties; the "matter in issue" may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be re-opened between them in another proceeding." While discussing the question the Supreme Court observed that the plea of res judicata can be based on a question of fact, mixed questions of law and fact, and question of law. A previous decision of a competent Court in facts, a mixed question of fact and law will be res judicata between the same parties in a subsequent proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid and transaction which is prohibited by law. The Supreme Court then considered illustrative cases and observed thus: "A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgments operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subse?uent litigation is the same or otherwise." and cautioned against an indiscriminate application of the principles of res judicata and exalt it to the status of a legi?lative direction while it belongs to the domain of procedure and said: "If the decision in the previous proceeding be regarded as conclu?ive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature." The point high-lighted by the Supreme Court in this passage is that an erroneous decision of a Court ignoring the statutory mandate relating to its jurisdiction will not and cannot operate as res judicata, for, in such cases erroneous decision can always destory the effect of the statute, which reflects the wisdom of the law making body. 19. It may be argued by the respondent's counsel, relying upon the observation of the Supreme Court, that a decision on a question of law can be res judicata in a subsequent proceeding between the same parties, where the cause of action is the same. But, the Supreme Court has disabused such an impression with the following observation:- "Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land." In the "above case the erroneous decision of Courts about its jurisdiction to entertain and decide an application to fix standard rent was held to be not res judicata. In this case the decree passed in enforcement of a right under an unprobated Will, is an erroneous exercise of power affecting the jurisdiction of the court and I have no hesitation to hold, relying upon the principles enunciated by the Supreme Court, that it does not operate as res judicata. 20. On a consideration of the question of law involved in this case I hold that the decree passed was without jurisdiction and has to be set aside. 21. The question formulated in the case is not happily worded. The question is whether the suit on an unprobated Will is sustainable. It cannot be said the suit is not maintainable. All that section 213 prevents is the establishment of the right by an executor or legatee under a Will, without a probate. A suitor, who files a suit without producing the probate or letters of administration, can be directed to produce the same for the decree to be effective. In 1971 Kerala 270 this Court remitted the case to the appellate court to pass a decree in favour of the plaintiff subject to the production of the probate granted by a competent court or the Will in question. Here also since the title is not and cannot be disputed a decree can be passed, but only subject to the production of the same. The decree can be modulated in that form. The question should have been, therefore, forced thus: "Whether the decree passed by the court below to enforce a right under an unprobated Will is valid". The question has to be answered in favour of the appellant and against the respondent. 22. A fervent appeal was made by the appellant's counsel to permit him to argue on the question of value of improvements, which he claimed. He wanted me to formulate another question since it was a substantial question of law. I have declined this request for the reason that this claim was found against him by the trial court. He abandoned this claim before the appellate court. Under these circum?tances it will not be proper to permit him to reagitate the question. What is more, I am not satisfied that his claim under Act 29 oiT958 (Kerala) raises a substantial question of law on the facts of the case. 23. He abandoned this claim before the appellate court. Under these circum?tances it will not be proper to permit him to reagitate the question. What is more, I am not satisfied that his claim under Act 29 oiT958 (Kerala) raises a substantial question of law on the facts of the case. 23. For the above reasons I set aside the decrees and judgments of the courts below and remit the case to the trial court with a direction that a decree in favour of the plaintiff in the suit shall be passed, subject to the production of a probate granted by a court of competent jurisdiction in India. The Second Appeal is allowed. I direct the parties to bear their costs. Refund the court fee paid on the memo?andum of second appeal to the counsel for appellant.