TMI Blog2012 (8) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... her Late Fateh Bahadur Singh is the primal issue for determination in this appeal. 5. The sole heir and daughter of Late Bishun Prakash Narayan Singh filed her objection in the proceeding for grant of probate to the said will assailing its legality and propriety, and claimed herself to have succeeded to the estate of her deceased father by inheritance. The learned court below overruled her objections and has granted probate to the will by the impugned judgment and order. The appellants are the substituted heirs of the objector(defendant) Kalyani Devi who died during the pendency of the proceeding in the court below. 6. The appellants in the interlocutory application have stated that after the grant of the probate, the plaintiff-respondent no.1 has started alienating and transferring the property of the deceased Bishun Prakash Narayan Singh. It has been alleged that the respondent no.1 during the pendency of the appeal has executed registered lease deeds in favour of the strangers for major portions of the property of the deceased and the lessees, who are powerful men, have been threatening to dispossess the P3 / 13 appellants from those properties. The photo copies of those l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eritance would have to undergo series of litigations to recover the properties from the strangers. 9. Per contra, the learned senior counsel for the respondent no.1 has strenuously submitted that in a proceeding P5 / 13 for probate or letters of administration no corporeal right over the property is under dispute and it is only the genuineness of the will which is to be investigated and as such no order pertaining to the property should be passed, and the provisions of Order 39 Rule 1 2 C.P.C. relating to grant of temporary injunction also cannot be invoked. It has been further canvassed that there is no prima facie case in favour of the appellants once after the grant of probate or letters of administration in favour of the respondent no.1 and as such also the appellants are not entitled to any interim order. It has been propounded that after the declaration of genuineness and validity of the will in question, there should be put no fetters on the right of the legatee to deal with the property of the testator, and that too at the instance of the appellants who themselves have started alienating the properties of the testator during the pendency of this appeal and even this in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property of the deceased testator till the dispute regarding his will pends. It would be apt here to take notice of the following provisions of Indian Succession Act: Section 247:- Administration pendente lite- Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administration of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its P8 / 13 direction. Section 266. District Judge's powers as to grant of probate and letters of administration- The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court. Section 268. Proceeding of District Judge's Court in relation to probate and administration- The proceedings of the Court of the Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor pendente lite. If such powers are exercised in probate cases by a probate Court, there is no reasonable chance of any property being dissipated, pending the actual grant of a probate or the appointment of an administration... 14. Delving into the issue of jurisdiction of a Court to pass order of temporary injunction when the provisions of Order 39 Rule 1 and 2 C.P.C. are not applicable, the Apex Court in the case of Manohar lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 has laid down as follows:- ...Thus there being no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39, C.P.C., if the Court is of the opinion that the interest of justice requires the issue of such interim injunction... 15. The submission of the learned senior counsel for the appellant that in a proceeding for grant of probate or letters of administration, no right to property is under dispute and therefore no order can be passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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