Sunday, 26 February 2017

Whether court can grant interlocutory relief in respect of property of deceased prior to grant of probate?

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 of probate are to be decided. That would be impermissible. The contents of the broad general language inSections 266 and 268 must be read in the context of the specific provisions which are made inSection 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 of an Indian Christian, who has died intestate. When Section 268 emphasizes that "save as hereinafter otherwise provided", the proceedings before the District Judge shall be regulated by the Code of Civil Procedure,  1908 so far as the circumstances of the case permit, it is not open to the District Judge to exercise a power contrary to the legislative intent and mandate of Section 269. Until probate of the Will is granted of a deceased person or an administrator is constituted, the statute has recognized the power of the District Judge for the protection of the property (at the behest of a person claiming to be interested) and in all other cases (where the Judge considers that the property incurs a risk of loss or damage). But, just as this power is specifically conferred upon the District Judge, sub-section (2) precludes the exercise of the power when the deceased belongs to one of the categories specified in sub-section (2). If the provisions of Sections 266 and 268were broad enough to bring within their purview, powers of the nature specified in sub-section (1) of Section 269, there was no necessity to incorporate a provision in the nature of sub-section (1) of Section 269. 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 ofSections 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.
Bombay High Court
Ramchandra Ganpatrao Hande Alias ... vs Vithalrao Hande & Ors on 29 March, 2011
Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta

1. Sushila Vithalrao Hande is alleged to have executed a will on 2 October 2002. The Appellant is named as executor under the will. Upon the death of the testatrix, the Appellant filed a Testamentary Petition seeking probate of the will. The Fourth and Fifth Respondents filed a Caveat and an affidavit in support.
The Appellant initiated an interlocutory proceeding in the form of a Notice of Motion for seeking an injunction restraining the Fourth and Fifth Respondents from entering upon, coming to or interfering with the immovable property of the testatrix. The motion was VBC 2 app797.10 opposed by the the Fourth and Fifth Respondents on the ground that in view of the judgment of Mr.Justice D.K.Deshmukh in Rupali Mehta vs. Tina Narinder Sain Mehta1, 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 the view taken by another Learned Single Judge in 1 2006(6) Bom.C.R. 778 VBC 3 app797.10 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 behind by the deceased does not form the subject matter of the suit and hence, the Court has no jurisdiction to make an interim order in relation to VBC 4 app797.10 the property. The Learned Single Judge held that (i) Under Section 217, which is in Part IX , the grant of probate or Letters of Administration as well as the administration of the assets in the case of intestate succession has to be carried out in accordance with that part. Detailed provisions are made as to how an application for probate or for Letters of Administration is to be made; for the manner in which it has to be processed and how it has to be decided; (ii) Section 269 is the only provision which empowers the Court to interfere for the protection of the property at the instance of the person claiming to be interested therein until probate is granted or an administrator of the estate is constituted.
However, sub-section (2) specifically provides that it shall not apply when the deceased is a Hindu, Mohammadan, Buddhist, Sikh. Jain or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate ; (iii) The provisions of Section 269indicate that in order to enable the Testamentary Court to pass interim order in relation to the properties during the pendency of a petition, the Legislature had enacted a specific provision, but at the same time, the Legislature has not conferred such a power in relation to persons who fall in VBC 5 app797.10 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 therefore, in my opinion, in exercise of its power under Civil Procedure Code, the Court would not be entitled to make any interim order VBC 6 app797.10 in relation to protection of the property, unless, an order is required to be made by the Court in the peculiar circumstances under Part-VII 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 211213222247251253261264266,268269273276291295307308317318319332 and 368 (besides the Original Side Rules framed by this Court) would demonstrate that under the Succession Act, the powers of the Testamentary Court are much wider than mere probating of a will or granting Letters of Administration; (iii) The Testamentary Court supervises the distribution of the assets of the deceased and in that sense deals VBC 7 app797.10 with the property until it is transmitted to the legatee or the legal heirs; (iv) In the absence of any claim adverse to the title of the deceased and between persons claiming through the deceased, the Testamentary Court has the power to protect the property until it is validly transmitted. The decision of the Learned Single Judge in Rupali Mehta's case is erroneous; (v) There is no express provision which ousts the applicability of the Code of Civil Procedure, 1908. On the contrary, Section 268 read with Section 295 makes it clear that the Code of Civil Procedure, 1908 applies.
The power to appoint a Receiver and to pass interim orders is a necessary adjunct of the power of the Civil Court. The Court is empowered to pass orders of an interlocutory nature and Section 266 which uses the words "in connection with" is broad enough to take in its compass everything from the vesting of the property, to the liability of the executor for neglect. (vi) Section 269 is a right which is vested in a person interested (other than the executor) and confers powers on the Court to take possession of the property until probate is 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 VBC 8 app797.10 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 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 VBC 9 app797.10 of the judgment of a Division Bench in Thrity Sam Shoff vs. Shiraz Byramji Anklesaria,2 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 theSuccession 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 the will and not the property is the subject matter of the proceedings before the probate Court, the jurisdiction with respect to enabling the administration of the estate would either be by upholding the will and granting probate or by declining to do so and thereby facilitating the administration of the estate.

    2 2007(2) ALL MR 856





     VBC                                        10                                 app797.10




                                                                                          
The rival submissions now fall for determination.
The nature of the jurisdiction of the probate Court :
5. In a proceeding for the grant of probate or for the grant of Letters of Administration with a will annexed, the Court exercising testamentary jurisdiction is not concerned with title to property. In determining whether probate should be granted, the Court determines only upon the genuineness and due execution of the will. Determinations on issues of title are alien to probate proceedings. In Ishwardeo Narain Singh vs. Kamta Devi,3 the Supreme Court formulated the principle of law in the following terms "The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a 3 AIR 1954 SC 280 VBC 11 app797.10 particular bequest is good or bad is not within the purview of the Probate Court."
This principle was reiterated in Chiranjilal Shrilal Goenka (deceased through LRs) vs. Jasjit Singh4 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."
4 (1993) 2 SCC 507 VBC 12 app797.10
Gurshaney,5 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 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 Lodha6, 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."
5 (2003) 7 SCC 301 6 (2008) 4 SCC 300 VBC 13 app797.10 The Indian Succession Act, 1925
8. Now it is in this background that it would be necessary to refer to the relevant provisions of theIndian 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 Section 213, no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed or has granted Letters of Administration with the will or with a copy of an authenticated copy of the will annexed. Under Section 216, upon the grant of probate or Letters of Administration, no other than the person to whom probate or letters of administration have been granted shall have power to sue or prosecute any suit or act as representative of the deceased until the probate or Letters of Administration are revoked.
VBC 14 app797.10
9. Part IX makes a provision for probate, Letters of Administration and for the administration of assets of the deceased.
Section 217 which deals with the application of the part provides as follows :
"217. Application of Part.- Save as otherwise provided by this Act or by any other law for the time being in force, all grants or probate and letter of administration with the will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this Part."
If the deceased has died intestate and was a Hindu, Mohammadan, Buddhist, Sikh, Jaina or exempted person, administration 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 VBC 15 app797.10 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 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 VBC 16 app797.10 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 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 VBC 17 app797.10 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 that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.
-(2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate."
Under Section 273, probate or Letters of Administration shall have effect over all the property and estate of the deceased whether movable or immovable property, throughout the State in which it is granted and shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him. Probate and Letters of Administration granted by the High Court unless otherwise directed by the grant have like effect throughout the territory of other States.
12. The contents of a Petition for probate are regulated by VBC 18 app797.10 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 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 VBC 19 app797.10 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 to be followed in granting the probate and Letters of Administration. Section 266 on the one hand, confers upon the District Judge like powers and authority in relation to the grant of probate and Letters of Administration and "all matters connected therewith" as are by law VBC 20 app797.10 vested in him, in relation to any civil suit or proceeding pending in his Court. Section 268 makes it clear that save as is otherwise provided thereafter, the proceedings of the Court of the District Judge in relation to the grant of probate and Letters of Administration shall be regulated, so far as the circumstances of the case permit by the Code of Civil Procedure, 1908.
14. In Thrity Sam Shroff vs. Shiraz Byramji Anklesaria,7 a Division Bench of this Court while interpreting the provisions of Section 295, which provides that in contentious cases, the proceedings before the District Judge shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, observed thus:
"...the proceeding shall merely take the form of a suit according to the Code of Civil Procedure and that too as nearly as possible, meaning thereby that though the proceeding is not a suit within the meaning of the said expression under the Code of Civil Procedure, yet the provisions of the Code of Civil Procedure, to the extent 7 2007(2) ALL MR 856 VBC 21 app797.10 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 of probate are to be decided. ThatVBC 22 app797.10 would be impermissible. The contents of the broad general language inSections 266 and 268 must be read in the context of the specific provisions which are made inSection 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 of an Indian Christian, who has died intestate. When Section 268 emphasizes that "save as hereinafter otherwise provided", the proceedings before the District Judge shall be regulated by the Code of Civil Procedure, VBC 23 app797.10 1908 so far as the circumstances of the case permit, it is not open to the District Judge to exercise a power contrary to the legislative intent and mandate of Section 269. Until probate of the Will is granted of a deceased person or an administrator is constituted, the statute has recognized the power of the District Judge for the protection of the property (at the behest of a person claiming to be interested) and in all other cases (where the Judge considers that the property incurs a risk of loss or damage). But, just as this power is specifically conferred upon the District Judge, sub-section (2) precludes the exercise of the power when the deceased belongs to one of the categories specified in sub-section (2). If the provisions of Sections 266 and 268were broad enough to bring within their purview, powers of the nature specified in sub-section (1) of Section 269, there was no necessity to incorporate a provision in the nature of sub-section (1) of Section 269. 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 VBC 24 app797.10 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 ofSections 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.
VBC 25 app797.10
15. In Atula Bala Dasi vs. Nirupama Devi,8 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 order of temporary injunction could be made pending the appointment of an administrator pendente lite.
In the present case, as pointed out on behalf of the Respondents, no such prayer is made for an appointment of the administration pendente lite. The Respondents have contended that they are admittedly the original heirs of the deceased and not "other persons". According to the Respondents, the only prayer sought by 8 AIR 1951 Calcutta 561 VBC 26 app797.10 the executor who incidentally is not even an heir of the deceased, is an interim injunction against the Respondents, who are the heirs of the deceased. We do not find that the judgment of the Calcutta High Court would be of any assistance to the Appellant. Similarly, the judgment of the Learned Single Judge of this Court in Pandurang Shamrao Laud vs. Dwarkadas Kalliandas,9 does not really deal with the issues which have arisen in the present case.
Reliance was placed on the judgment of the Supreme Court in Mansukhlal Dhanraj Jain vs. Eknath Vithal Ogale,10 in support of the contention that the words "in connection with" are of the widest amplitude. These observations of the Supreme Court are sought to be relied upon to amplify the words ""all matters connected therewith" in Section 266. 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 9 1932 (35) BLR 700 10 AIR 1995 SC 1102 VBC 27 app797.10 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.
16. For these reasons, we are of the view that there is no merit in the appeal. The appeal shall accordingly stand dismissed.
There shall be no order as to costs.
( Dr.D.Y.Chandrachud, J.) ( Anoop V. Mohta, J.)
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