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4.The appellants opposed both the Interlocutory Applications. They opposed the marking of the Registered Will dated 13.12.1993 on the ground that it was not probated as per law and so, as per Section 213 of the Indian Succession Act, 1925, the said document could not be proved in evidence in the suit.

5.However, it was the contention of the respondents herein that though it is true that the Registered Will dated 13.12.1993 remains unprobated, it is admissible in evidence in the said suit because the same is sought to be used only for collateral purpose and not to prove any right or title derived by means of the said document. Having considered the above submissions, the learned Single Judge of this Court by order dated 10.09.2009, allowed the petition thereby negativing the objections of the appellants herein. The delay was also condoned. Aggrieved over the same, the appellants are before this Court with these Original Side Appeals.

9.In respect of the unregistered Will dated 13.12.1993 alone, the learned counsel for the appellants advanced arguments. He would reiterate that this, being an unprobated Will, is not admissible in evidence in view of the bar contained in Section 213 of the Indian Succession Act. The learned counsel would further submit that the document is sought to be marked not for any collateral purpose as it is attempted to be distinguished by the learned counsel for the respondents, but, it is sought to be used only for the purpose of proving the right and title claimed under the said document.

10.To the contrary, the learned counsel for the respondents would submit that the learned Single of this Court was right in holding that the said unregistered and unprobated Will is admissible in evidence since the purpose for which the same is sought to be proved is only collateral and not for establishing any title or right derived under the said document.

11.The learned counsel on either side have placed reliance on few judgments of the Honble Supreme Court about which, we would make reference at the appropriate stages of this judgment.

17.A close reading of the above judgments would make it very clear that it is the settled proposition of law that in view of the bar contained in Section 213 of the Act, an unprobated Will cannot be admitted in evidence in any proceeding to establish any right or title derived under the Will. However, for collateral purposes such an unprobated Will can be proved in evidence.

18.Now in the case on hand, the question is as to whether the unprobated Will is sought to be proved by the respondents for collateral purpose as it is claimed by them. The learned counsel for the respondents would submit that no right or title is attempted to be established under the Will so as to fall within the bar contained in Section 213 of the Act, instead, according to him, the document is used only to prove that the earlier Will for which letters of administration is sought for has been subsequently canceled. This according to the learned counsel for the respondents is a collateral purpose. But, we find it too difficult to accept the said contention. The said Will of the year 1993 is sought to be used to defeat the claim of the appellants to get letters of administration on the earlier Will. Unless, the due execution and contents of the said Will by which the earlier Will is stated to have been cancelled are proved, the respondents cannot succeed in their plea to defeat the claim of the appellants for letters of administration. The contents of the said Will of the year 1993 can be proved only in an appropriate probate proceeding. Unless the said Will of the year 1993 is proved that it is the last Will of the deceased and it satisfies all the other legal requirements, the earlier Will for which letters of administration proceeding has been initiated cannot be negatived. Proof of the same cannot be made in the present suit because the same could be done if only the respondents approach the Court for probating the said Will either by making a counter claim or by initiating separate proceedings. For the respondents, the right to oppose the issuance of probate in respect of the earlier Will itself is derived only from the unprobated subsequent Will. As held by the Full Bench of this Court in Ganshmdoss v. Gulab Bi Bai (cited supra), the bar contained in Section 213 of the Indian Succession Act is applicable even to a defendant in a suit. Therefore, we are of the firm view that the purpose for which the Will of the year 1993 is sought to be proved by the respondents in evidence is only for the main purpose to establish that the said Will is the last Will which cancels the earlier Will and the said purpose is not merely collateral as it is sought to be made out by the respondents. Apart from that, in Commissioner v. Mohan Krishan Abrol (cited supra) the Honble Supreme Court has held that even for such collateral purposes the unprobated Will cannot be used in a probate proceedings.