JUDGMENT - CHITRE J.G., J.:---The respondents have been served. But they are absent and none present for them. The appeal pertains to the year 1988 and it has been mentioned in the hearing Board as listed for final hearing. Therefore, this Court is hearing this appeal finally and deciding it in accordance with provisions of law. 2. Some facts need to be stated for unfolding the controversy. The subject -matter of the suit is house No. 18-B in H. Ward No. 1837(1) situated at New Kantwadi, Bandra, Mumbai. The father of the petitioners named Ignatius DAbreo bequeathed the said house to his wife Mary for her life time and indicated that after her death it would go to one Daisy. Plaintiff No. 1 is the husband of one Ruby and plaintiff No. 2 is her daughter and said Ruby is daughter of deceased Ignatius who executed the Will. Defendant No. 1 Anthony DAbreo is the younger brother of Daisy and defendant No. 2 is his wife. Plaintiffs claim to be in possession of the suit property mentioned above. 3. The plaintiffs averred that in May 1964, the defendants resided in a room at Vakola with their six children and in the last week of May the defendant No. 1 approached the plaintiff Oswald Lawrence John Serron and begged for a shelter in the suit premises for the monsoon as his children were attending a school at Bandra. Showing mercy on them as averred by the appellant-original plaintiffs Oswald Lawrence allowed them to occupy Room No. B and allowed them to use bath room, lavatory, latrine and assessories as well as allowed access through verandah for common use along with them as non-paying guest. Daisy and her sister Ruby were residing in the suit premises. Ruby was residing with Daisy prior to marriage of Ruby which took place in the year 1959. 4. The appellants averred that Anthony started drinking heavily and under the influence of drink he used to assault Oswald Lawrence and in that context Oswald Lawrence had lodged complaint to Bandra Police Station. He also apprehended that the respondents (original defendants) were likely to take away his furniture and other articles belonging to him and his wife. Therefore, the original plaintiffs filed the suit for declaration that the defendants be declared as trespassers in the suit premises and they be evicted from it. 5. He also apprehended that the respondents (original defendants) were likely to take away his furniture and other articles belonging to him and his wife. Therefore, the original plaintiffs filed the suit for declaration that the defendants be declared as trespassers in the suit premises and they be evicted from it. 5. The respondents (original defendants) averred that the so-called Will dated 17-1-1946 has not been probated and, therefore, the title did not pass to the appellants (original plaintiffs), and, therefore, they were not owners of the suit premises. In fact they denied the averment made by the appellants in respect of execution of the Will. They contended that they were joint owners of the said house as heirs of deceased Ignatius and contended that defendant No. 1 was residing in the suit house since his birth as a matter of right. They contended that they had a short stay at Vakola. However, they continued to stay in the suit house and were contributing towards the payment of municipal tax in respect of the suit house. They contended that false complaint was lodged in Bandra Police Station. They further averred that for the sake of convenience the suit premises were allowed to stand in the name of the original plaintiffs but taxes were paid by the defendants. They prayed that the said suit be dismissed. 6. The trial Court dismissed the said suit on two counts. First, by holding that the original plaintiffs did not obtain the probate in respect of the said alleged Will and on the second ground that the plaintiffs failed to establish that the original defendants had no interest whatsoever in the suit house. He also held that the original plaintiffs did not prove that the original defendants had committed the acts of nuisance as averred by original plaintiffs. Decree of dismissal of the suit is being assailed by the appellants by this first appeal. 7. Mrs. Mandale submitted that the learned trial Judge committed the error of not appreciating the evidence on record properly and landed in the error of coming to the conclusion that the original plaintiff did not prove the case for getting the suit decreed. She submitted that the Court did not also consider that the lis was pending in the High Court in respect of the said Will. She submitted that the Court did not also consider that the lis was pending in the High Court in respect of the said Will. According to her, by keeping in view this aspect of the matter, the trial Court should not have dismissed the suit. This Court does not endorse her submissions with approval for the reasons stated hereunder. 8. In view of provisions of section 213 of the Indian Succession Act, 1925 (hereinafter referred to as the Act for convenience), no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. It is true that by virtue of sub-section (2) it has been provided that the provisions of section 213 would not apply in the case of Wills made by Mohammedans and shall only apply--- (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are of classes specified in Clauses (a) and (b) of section 57, and (ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such Wills are made within the local limits of the Ordinary Original Civil Jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situate within those limits. A reference has been made by section 213 of the Act to section 57 which provides for application of certain provisions of Part VI of the Act to a class of Wills made by Hindus, etc. When the learned Judge has quoted section 213 and the judgment hovered around section 213 of the Act, it impliedly means that the suit was conducted, arguments were submitted by treating the original plaintiffs as Hindus. Not a single sentence has been mentioned in the plaint to indicate that the original plaintiffs were not Hindus. Therefore, their names would not matter much. Not a single sentence has been uttered by the appellant or anybody while giving evidence in the Court that they belonged to a particular religion. Not a single sentence has been mentioned in the plaint to indicate that the original plaintiffs were not Hindus. Therefore, their names would not matter much. Not a single sentence has been uttered by the appellant or anybody while giving evidence in the Court that they belonged to a particular religion. In these circumstances, there was no alternative but to resort to provisions of section 213 of the Act and exactly the same has been done by the learned trial Judge. 9. If a person claims to be the owner of the property by virtue of a Will, he cannot have the right over the said property which can be established in any Court of Justice unless a Court of competent jurisdiction in India has granted probate of the Will to him. 10. When the appellant wanted to oust the respondents, it was necessary for him to establish by legal evidence that he was in lawful possession of the suit property and more particularly it was burden on him to do so when the respondents had contended that respondent No. 1 was living in the suit premises right from his birth and as of right. 11. The question of a complaint lodged in Police Station would come thereafter. But, even the learned Judge has observed in his judgment that after the said single complaint, no complaint was lodged against respondent No. 1 by the present appellant. Therefore, there was no question of granting any relief to the appellant. 12. After careful scrutiny of the judgment and order which has been challenged by this appeal in context with the evidence on record, this Court comes to a conclusion that the first appeal fails and, therefore, it has to be dismissed with costs. 13. The first appeal stands dismissed with costs. The appellant would be entitled to seek appropriate relief permissible by law after the lis in respect of those Wills pending in High Court are decided. Appeal dismissed. -----