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2011 (3) TMI 1816 - BOMBAY HIGH COURTSeeking probate of the will - Execution of a will - heirs of the deceased - whether or not the will is genuine - nature of the jurisdiction of the probate Court - HELD THAT:- As a rule of interpretation, the Court will not ascribe or attribute the use of a surplusage to the Legislature. But, even if an alternate construction is possible - one that recognizes that Sub-section (1) of Section 269 only makes implicit a power which is exercisable under Sections 266 and 268 - the effect of Sub-section (2) is to preclude the exercise of that power in the case of one of the excepted categories. It would not be permissible, in the face of the specific provision of Sub-section (2) of Section 269 to read into the provisions of Sections 266 and 268 a general power to grant interlocutory relief even prior to the grant of probate in respect of the property which is alleged to form part of the estate of the deceased. This construction is fortified by the principle that the testamentary Court in proceedings for probate is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. The probate Court is not concerned with questions relating to the property itself. Though an assiduous attempt was made on behalf of the Appellant to rely upon the provisions of the Act, to which a reference has been made earlier, the Court in this case is essentially concerned with the powers of the testamentary Court when it exercises its jurisdiction in a petition for the grant of probate. In view of the express provision which is contained in Section 269(2), there can be no recourse to the exercise of the inherent powers of the Civil Court. This, however, would not preclude recourse to a civil suit for obtaining relief necessary for the protection of the property. The words which have been used in Section 266 must receive interpretation in the context in which where they are used. In the context of the jurisdiction of the probate Court, it is a well settled principle of law laid down by the Supreme Court that the Court cannot go into questions as regards title or of the existence of a property bequeathed by the deceased. We, therefore, find merit in the contention of the Respondents that the interpretation which is sought to be placed by the Appellant would travel beyond the scope of the jurisdiction of the probate Court and would be contrary to legislative intent. Thus, we are of the view that there is no merit in the appeal. The appeal shall accordingly stand dismissed.
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