2011 (3) TMI 1816 - HC - Indian Laws

Seeking 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.

Summary

Issues Involved:
1. Maintainability of the Notice of Motion for an injunction in a testamentary petition.
2. Jurisdiction of the probate court in relation to the property of the deceased.
3. Interpretation of relevant provisions of the Indian Succession Act, 1925.
4. Applicability of the Code of Civil Procedure, 1908, to probate proceedings.

Detailed Analysis:

1. Maintainability of the Notice of Motion for an Injunction in a Testamentary Petition:
The appellant filed a Notice of Motion seeking an injunction to restrain the Fourth and Fifth Respondents from interfering with the immovable property of the testatrix. The motion was opposed based on the judgment in Rupali Mehta v. Tina Narinder Sain Mehta, which held that in a petition for probate, an order of injunction cannot be granted concerning the property of the deceased. The court dismissed the motion as not maintainable, agreeing with the precedent set in Rupali Mehta that the probate court's concern is solely with the genuineness of the will, not the property.

2. Jurisdiction of the Probate Court in Relation to the Property of the Deceased:
The court reiterated that in a proceeding for the grant of probate or Letters of Administration, the probate court is not concerned with the title to property but only with the genuineness and due execution of the will. This principle was supported by several Supreme Court judgments, including Ishwardeo Narain Singh v. Kamta Devi, Chiranjilal Shrilal Goenka v. Jasjit Singh, Delhi Development Authority v. Mrs. Vijaya C. Gurshaney, and Krishna Kumar Birla v. Rajendra Singh Lodha. The probate court does not decide questions of title or the existence of the property itself.

3. Interpretation of Relevant Provisions of the Indian Succession Act, 1925:
The court examined various sections of the Indian Succession Act, 1925, including Sections 211, 213, 217, 222, 247, 264, 266, 268, and 269. Section 269(1) authorizes the District Judge to interfere for the protection of the property until probate is granted, but Section 269(2) excludes this provision for Hindus, Mohammadans, Buddhists, Sikhs, Jains, and certain other categories. The court concluded that the broad language of Sections 266 and 268 must be read in the context of the specific provisions of Section 269, which precludes the exercise of such power for the excepted categories.

4. Applicability of the Code of Civil Procedure, 1908, to Probate Proceedings:
The court noted that Section 268 of the Indian Succession Act, 1925, states that the proceedings of the District Judge in relation to the grant of probate and Letters of Administration shall be regulated by the Code of Civil Procedure, 1908, as far as the circumstances of the case permit. However, this does not allow the District Judge to exercise powers contrary to the legislative intent of Section 269(2). The court emphasized that the probate court's jurisdiction is limited to determining the genuineness of the will and does not extend to passing interim orders concerning the property of the deceased.

Conclusion:
The appeal was dismissed, affirming that the probate court's jurisdiction is limited to the genuineness and due execution of the will. The court cannot pass interim orders concerning the property of the deceased, especially when the deceased belongs to the categories excluded by Section 269(2) of the Indian Succession Act, 1925. The appellant's recourse for protecting the property lies in initiating separate civil proceedings.