TMI Blog2011 (3) TMI 1816X X X X Extracts X X X X X X X X Extracts X X X X ..... uction 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property which forms the subject matter of the will be protected, the Civil Court can be moved. Finding no reason to differ with the view taken by another Learned Single Judge in Rupali Mehta, the Learned Single Judge in the present case, dismissed the motion as not being maintainable. The Appellant, who is the original Petitioner in the Testamentary Petition is in appeal. 2. Before elucidating the rival submissions, it would, at the outset, be necessary to enunciate the position as formulated in the judgment of Mr. Justice D.K. Deshmukh in Rupali Mehta. In that case, a Testamentary Petition was filed for the grant of Letters of Administration with a copy of the will annexed. A caveat was filed and the Petition was converted into a testamentary suit. The Plaintiff took out a Notice of Motion seeking the appointment of a Receiver and an interim order in relation to the property which was alleged to form part of the estate of the deceased. An objection was raised to the maintainability of the motion on the ground that in a petition filed for Letters of Administration with a will attached or in a petition for the grant of probate, the title of the deceased to the property left be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 therefore, in my opinion, in exercise of its power under Code of Civil Procedure Code, the Court would not be entitled to make any interim order in relation to protection of the property, unless, an order is required to be made by the Court in the peculiar circumstances under PartVII of the Act. Submissions: 3. On behalf of the Appellant, it has been submitted that (i) The Succession Act deals with succession to the estate of a deceased person. The Court recognizes the representation to the estate and secures transmission of the property in favour of the legatees or the successors as the case may be. There cannot be any succession without the estate. There cannot be a representation without the estate, nor can there be a transmission to the legatee/successor without the estate; (ii) The provisions of Sections 211, 213, 222, 247, 251, 253, 261, 264, 266, 268, 269, 273, 276, 291, 295, 307, 308, 317, 318, 319, 332 and 368 (besides the Original Side Rules framed by this Court) would demonstrate that under the Succession Act, the powers of the Testamentary Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecution of the will. The Succession Act is a self contained code and the grant of probate only establishes the factum of the will and the legal character of the executor. The probate Court does not decide any question of title; (iii) In so far as this Court is concerned, in view of the judgment of a Division Bench in Thrity Sam Shoff v. Shiraz Byramji Anklesaria 2007(2) ALL MR 856 it is a settled principle that the provisions of the Code of Civil Procedure, 1908 apply to probate proceedings only to the extent to which they are not inconsistent with the Succession Act; (iv) The Succession Act does not contain any provision which confers jurisdiction on the probate Court to pass interim orders in relation to the property of the deceased during the pendency of a probate petition where the deceased is covered under Section 269(2). The probate Court does not have inherent jurisdiction; (v) In several judgments it has been held by the Supreme Court that the jurisdiction of the Testamentary Court is only to determine as to whether the testator has executed an instrument of his own free will. The jurisdiction of the probate Court does not deal with the property of the deceased. Since only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with finding out whether or not the testator executed the testamentary instrument of his free will. It is settled law that the grant of a Probate or Letters of Administration does not confer title to property. They merely enable administration of the estate of the deceased. 7. In Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300 the Supreme Court once again reiterated that: The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. The Indian Succession Act, 1925 8. Now it is in this background that it would be necessary to refer to the relevant provisions of the Indian Succession Act, 1925. Part VIII of the Act is entitled Representative title to property of deceased on succession . Under Sub-section (1) of Section 211, the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes and all the property of the deceased vests in him as such. Under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of distributing such estate. The administrator is subject to the control of the Court and has to act under its direction. Under Section 261, the Court may rectify certain errors and alter or amend the probate or Letters of Administration accordingly. Chapter IV of Part IX deals with the practice in granting and revoking probates and Letters of Administration. Under Sub-section (1) of Section 264, the District Judge shall have jurisdiction in granting and revoking probates and Letters of Administration in all cases within his district. By Section 266, the District Judge shall have the like powers and authority in relation to the grant 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 provides that the proceedings of the Court of the District Judge in relation to the grant of probate and Letters of Administration shall, save as hereinafter otherwise provided , be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. 11. Section 269 provides as follows: 269. When and how District Judge to interfere for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has to furnish an inventory and account under Section 317 and is under an obligation under Section 319 to collect with reasonable diligence the property of the deceased and debts that were due to him. A liability is cast upon the executor in respect of the loss or damages occasioned upon his misapplication of the estate of the deceased. 13. On the basis of some of these provisions to which a reference has been made, it has been submitted on behalf of the Appellant that the powers of the Court exercising testamentary jurisdiction under the Indian Succession Act 1925, are much wider than a mere probating of a will or the grant of the Letters of Administration. At this stage, however, what needs to be emphasized is that the Indian Succession Act, 1925, is a self contained code as regards the making of an application for a probate and the grant or refusal of probate. Hence, proceedings for the grant of probate can be conducted by the Court only in the manner which is prescribed by the Act. Part IX of the Act, as we have noted earlier, regulates the grant of probate, Letters of Administration and administration of the assets of the deceased. Chapter IV of Part IX governs the practice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot transform the probate proceeding into one in which issues alien to the grant of probate are to be decided. That would be impermissible. The contents of the broad general language in Sections 266 and 268 must be read in the context of the specific provisions which are made in Section 269. The Legislature in Sub-section (1) of Section 269 made a specific provision to the effect that until probate of the will of a deceased person is granted or an administrator of his estate is constituted, the District Judge (i) is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein; and (ii) in all other cases where the Judge considers that the property incurs any risk of loss or damage to do so. For that purpose, the District Judge is empowered to appoint an officer to take and keep possession of the property. While recognising and conferring such a power expressly on the District Judge, the Legislature nonetheless mandated in Sub-section (2) that this section shall not apply when the deceased is a Hindu, Mohammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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. 15. In Atula Bala Dasi v. Nirupama Devi AIR 1951 Calcutta 561 a Division Bench of the Calcutta High Court inter alia considered the question as to whether the probate Court has any jurisdiction to issue an order for stay of proceedings pending in another Court. The Division Bench noted that the powers of the probate Court for the protection of the property which is a subject matter of testamentary disposition are regulated by the specific provisions of the Act and Section 247 authorises the Court to appoint an administrator pendente lite. The Court adverted to Section 269, including Sub-section (2) and observed that in that case it was not necessary to consider the implications of the provision. The Division Bench of the High Court held that an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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