TMI Blog2006 (8) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been raised on behalf of the Defendant to the maintainability of this Notice of Motion seeking interim orders in relation to the property which according to the Plaintiff is left behind by the deceased on the ground that in a petition filed for letters of administration with Will attached or in a petition for grant of probate, title of the deceased to the property or properties left behind by the deceased is not the subject matter of the suit and therefore, the court does not have power and jurisdiction to make interim orders in relation to the property. 4. I have heard the learned Counsel appearing for both sides in detail on this question. According to the Plaintiff, in terms of the provisions of Section 268 of the Indian Succession Act to the proceedings for grant of probate and letters of administration, the provisions of the Code of civil Procedure is applicable and therefore, according to the learned Counsel Section 141 of the Civil Procedure Code applies and therefore this Court has the jurisdiction to make interim orders in relation to the property which according to the Plaintiff is left behind by the deceased. The learned Counsel has relied on several decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of estate of the deceased in case of intestate succession is to be made and carried out in accordance with the provisions of this Part. Perusal of this Part shows that it makes provisions in detail as to how an application for probate or letters of administration is to be made. How that application is to be processed and how that application is to be decided. Section 268, which is found in Part-IX lays down that provisions of the Code of Civil Procedure are application. Section 269 is the only provision that I find in Part-IX of the Succession Act giving power to the court to interfere for protection of the property. Section 269 reads as under: 269.When and how District Judge to interfere for protection of property.-(1) Until probate is granted of the Will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled by succession to such property as aforesaid, make the like application for relief. 193. Inquiry made by Judge.-The District Judge to whom such application is made shall, in the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide. 8. Sections 192 193 quoted above are found in Part-VII of the Act. Perusal of the provisions of Part-VII shows that the order for protection of the property under Part-VII is made by the Court in summary proceeding and the court can make such an order when the Court finds that urgent orders are necessary and the court cannot wait for the party to secure that order by adopting an ordinary remedy of civil suit. The order under Sections 192 and 193 can be made only to prevent a person having no rights in relation to the property taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tarani v. Profulla.) Therefore, it should necessarily be by the person who needs to establish his title to claim any such possession on the basis of title. 18. By analogy to Order 21 Rule 63, it can be said that where an adverse order has been passed against the plaintiff, under Section 194 of the Act, the onus lies heavily on the plaintiff to show that he has a right which has been demised by the decision under Section 194. (See Dhirendra Nath Das v. Indra Chandra Kisriwala, Mohd.Ali Mohd. Khan v. Bismillah Begam, Sahdeo Karan Singh v. Usman Ali Khan, Ahmad Din Allah Ditta v. Partap Singh, Mohd. Ismail v. Hanuman Parshad and Masina Bavamma v. Yendru Papanna) 19. Coming to the scope and ambit of Sections 192, 193, 194 and 195, it is to be noted that they form a part of Chapter XIII dealing with the modalities to be adopted for protection of properties of the deceased being covered by Part VII. These proceedings are essentially interlocutory in character and necessarily summary depending upon the filing of an application for relief seeking the court to determine who has a right to possession pending the final determination of the rights of the parties in a regular suit. 20. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Act. It is thus clear that for making an application under Section 192, it is not necessary that any proceeding for probate or letter of administration should be pending. But order can be sought only in relation to possession of property of the deceased, and only when the orders are urgently needed. In so far as the present notice of motion is concerned, it is nobody's case that the notice of motion is taken out under Section 192 of the Act. Section 247 of the Act vests power in the court to appoint an administrator of the estate of the deceased person. Section 247 reads as under:- 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 administrator 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 direction. Perusal of the provisions of Section 247 shows that the court itself does not while making an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty of the Court to try an issue raising this question. All we can say is that it would be exceedingly inconvenient if Courts in this country had to try such issue. A Court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in the case. It is much safer in the interest of the public that issues as to the title to property should be decided when the issues are raised in a regular suit, and not on an application for a grant of probate. It is true that the learned Additional District Judge realised perfectly well that it would have been improper for him to decide whether or not the house and the orchard and kasht land described in the will actually belonged to Mr. Barta Kuar and not to her son, Ram Chariter Singh. It is, however, a pity that he did not also recognize that for more or less the same reasons as made this improper Kashi Nath Singh was not a person interested in the estate of the testatrix and as such entitled to oppose the grant. The result of permitting persons in such a position as Kashi Nath Singh to appear and contest the grant of probate or letters of administration may be very i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. Therefore, the Respondents being heirs are directly interested in challenging the execution of the Will. As could be seen from the affidavit filed in support of the caveat, the Respondents have taken number of pleas challenging the execution of the Will. It is only recently they have amended an affidavit to take one more plea that the testator had no competence to execute the Will in respect of the joint family property. It may be that the Testamentary court has no jurisdiction to go into the question of title. A mere fact that the caveators have been taken an alternative plea and that too without prejudice to other contentions their caveat cannot be rejected as contended on behalf of the plaintiff. In none of the decisions relied on by the learned Counsel for the Plaintiff there is a case similar to the one before us, where the main defence is one of denial of execution of the Will and an alternative prayer and that too without prejudice is taken subsequently challenging the competence of the testator. Therefore, in my view none of the decisions relied on my the learned Counsel for the Plaintiff are applicable to the facts of the present case. Here the Respondent being the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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