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

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Whether Plea of part performance u/s 53A Transfer of property Act should be decided at interlocutory stage?

We have heard learned counsel appearing for the parties. In our considered opinion, the learned single judge has completely misconstrued the provisions of Order 39 Rule 1 and 2 CPC and has committed serious error in deciding the scope of Section 53A of Transfer of Property Act, 1882 and Order 2 Rule 2 of CPC. As noticed above the Civil Judge while granting ad-interim injunction very categorically observed in the order that respective rights of the parties shall be decided at the time of final disposal of the suit. The very fact that Plaintiff No.2 is in possession of the property as a tenant under Plaintiff No.1 and possession of Plaintiff No.2 was not denied, the interim protection was given to Plaintiff No.2 against the threatened action of the defendants to evict her without following the due process of law. In our considered opinion, the order passed by the learned single judge cannot be sustained in law.

8. For the aforesaid reasons, we allow this appeal and set aside the order passed by the High Court in the aforesaid appeal arising out of the order of injunction.

Supreme Court of India

Lakshmi @ Bhagyalakshmi & Anr. vs E. Jayaram(D) By Lr. on 7 February, 2013

Bench: Surinder Singh Nijjar, M.Y. Eqbal

Citation: (2013) 9 SCC 311

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Whether court can pass order of injunction during pendency of probate proceeding?

 We may in this connection consider the powers & the jurisdiction of a probate court for safeguarding the interest of all concerned, & particularly to protect the properties which are the subject matter of the testamentary disposition. We have noticed already the provisions contained in Sections 247 & 269, Succession Act. Even where the exercise of the powers given to the probate court under Section 247, Succession Act, cannot obviate the difficulties or protect the properties, the powers of that court are wide enough to issue temporary orders restraining other persons from interfering with the properties which are the subject-matter of testamentary disposition. As indicated in Nirod Barani Debi v. Chamatkarini Debi', 19 C. W. N. 205 though for certain purpose, a probate proceeding is not a suit in which there is a property in dispute, as contemplated under Order XXXIX, Rule 1, Civil P. C., the only question in controversy being as to who is to represent the estate of a deceased person, & there being no question of title involved in those proceedings, the court of probate is not thereby wholly incompetent to grant a temporary injunction even in extreme cases; such order of injunction is to be issued only in aid of & in furtherance of the purpose for which a grant is made by a probate court. It is, therefore, open to the probate court not only to appoint an administrator pendente lite, but also to issue an order of injunction, temporary in character, pending the appointment of an administrator 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 administrator. As observed in 'Nirodbarani v. Chamatkarini (supra)'

"In cases where it is brought to the notice of the probate court that a party in possession is about to deal with the movable properties unless injunction is granted, appointment even of an administrator pendente lite may become fruitless. The Court under such circumstances, has ample authority, either under statutory powers or in the exercise of its inherent jurisdiction, to make a temporary order, so as not to defeat the ultimate order which the court is competent to make."

In our view, the proper application which ought to have been made in the present case was an application for the appointment of an administrator pendente lite, & if necessary, to pray for the issue of a temporary injunction on the decree-holders concerned, pending the appointment of an administrator pendente lite. In a case of this description, the probate court will not grant the application as a matter of course. The Court of probate would appoint an administrator pendente lite in all cases where the necessity of the appointment is made out. 

Calcutta High Court

Atula Bala Dasi And Ors. vs Nirupama Devi And Anr. on 27 February, 1951

Equivalent citations: AIR 1951 Cal 561

Bench: R Mookerjee, Guha

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