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TMI Blog2011 (3) TMI 1816X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Fourth and Fifth Respondents on the ground that in view of the judgment of Mr. Justice D.K. Deshmukh in Rupali Mehta v. Tina Narinder Sain Mehta MANU/MH/0507/2006 : 2006(6) Bom.C.R. 778 the Motion was not maintainable. In that judgment it has been held that in a petition for probate, an order of injunction cannot be granted in relation to the property of the deceased since the Court in such a petition, is not concerned with the will, the sole question for consideration being whether or not the will is genuine. When the motion came up for hearing before the Learned Single Judge, it was dismissed as not being maintainable in view of the judgment in Rupali Mehta. The Learned Single Judge recorded the submission of the Appellant that the decision in Rupali Mehta does not take into account the scheme of the Indian Succession Act, 1925. The Learned Single Judge observed that the judgment does not prohibit any person from seeking protection of the estate of the deceased by initiating proceedings before the Civil Court. Hence, if a party desires that the property which forms the subject matter of the will be protected, the Civil Court can be moved. Finding no reason to differ with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision, but at the same time, the Legislature has not conferred such a power in relation to persons who fall in the category mentioned in Sub-section (2); (iv) A summary remedy is provided in Sections 192 and 193 which are in Part VII, but those provisions were not attracted there; (v) The Code of Civil Procedure, 1908 is applicable to a Testamentary Suit and hence, the power of the Court under Order XXXIX would also be available for making orders of temporary injunction. However, the Court can issue orders of injunction under Order XXXIX or appoint a Receiver under Order XL only in relation to property which forms a subject matter of the suit. In a Testamentary Suit, the property left behind by the deceased is not the subject matter of the proceedings or the suit and hence, the Court cannot pass an interim order qua the property. An interim order is in aid of a final order that the Court can pass in a suit. The conclusion which has been arrived at by the Learned Single Judge is thus: In a testamentary suit, the property which is mentioned in the Will or property which may be or may not be left behind by the deceased is not the subject matter of the testamentary suit, and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s granted. The provision has been made applicable to persons belonging to certain classes where the Legislature was of the view of a likelihood of the property being unattended. The Court is required to step in on the application of an interested person. The provision was intended to deal with situations which are liable to arise in the case of unattended property. 4. On the other hand, it has been urged on behalf of the Fourth and Fifth Respondents that (i) The only two questions of law to be determined are: (a) Whether any of the provisions of Part IX expressly authorise the Court to pass interim orders in relation to the properties of a deceased person falling outside the scope of Section 269(2) during the pendency of a probate petition; and (b) Whether in view of the express provision of Section 269(2), there is any scope for the Court to exercise inherent powers to grant interim relief against an heir; (ii) The settled position of law as laid down by the Supreme Court is that the only issue in a probate proceeding relates to the genuineness and due execution of the will. The Succession Act is a self contained code and the grant of probate only establishes the factum of the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. This principle was reiterated in Chiranjilal Shrilal Goenka (deceased through L Rs) v. Jasjit Singh (1993) 2 SCC 507 in the following observations: The Succession Act is a self contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself. 6. In Delhi Development Authority v. Mrs. Vijaya C. Gurshaney (2003) 7 SCC 301 the Supreme Court again emphasized the following principle: A Testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of his estate may be granted to any person who according to the Rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of the estate. Under Section 220, the grant of Letters of Administration entitles the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. 10. Probate by virtue of Section 222 can be granted only to an executor appointed by the Will. The effect of the grant of a probate of a Will, as elucidated in Section 227 is that it establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. Chapter II of Part IX deals with limited grants. Under Section 247, the Court is empowered to appoint an administrator for the estate of the deceased pending a suit touching the validity of the will or for obtaining or revoking any probate or grant of Letters of Administration. The administrator shall have all rights and powers of a general administrator, other than the right of distributing such estate. The administrator is subject to the control of the Court and has to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rritory of other States. 12. The contents of a Petition for probate are regulated by Section 276. An application for probate or for Letters of Administration with a will annexed have to be made by a Petition with the will annexed stating: (i) the time of the death of the testator; (ii) that the writing annexed is his last will and testament; (iii) that it was duly executed; (iv) the amount of assets which are likely to come to the Petitioner; and (v) when the application is for probate, that the Petitioner is the executor named in the will. Similar provisions have been made in Section 278 in respect of a petition for Letters of Administration with modifications relevant to the context. Under Section 291, a person to whom Letters of Administration is committed, has to furnish a bond engaging for the due collection and administration of the estate of the deceased. Under Section 307, the executor has the right to dispose of the property which is vested in him. Section 308 empowers the executor and administrator to incur expenditure for the purposes enunciated. The executor or administrator has to furnish an inventory and account under Section 317 and is under an obligation under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, yet the provisions of the Code of Civil Procedure, to the extent they are not inconsistent with those of the said Act, may be followed bearing in mind the limited jurisdiction and function of the probate Court. Now, it has been emphasized on behalf of the Appellant that the words "all matters connected therewith" in Section 266, have a broad connotation and that Section 268 emphasizes that the proceedings before the District Judge in relation to the grant of probate and Letters of Administration will be regulated so far as the circumstances of the case permit by the Code of Civil Procedure, 1908. It is contended that the power to grant interim orders is a necessary adjunct of the power of a civil court. The ambit of the words "all matters connected therewith" has to be construed in relation to the grant of probate and letters of administration. Such a proceeding does not concern itself with title or even the existence of the property but only determines whether the will was executed by the testator of his own free will. That being the ambit of the proceeding, the words " connected therewith" cannot transform the probate proceeding into one in which issues alien to the grant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usage 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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