RAMCHANDRA GANPATRAO HANDE ALIAS HANDEGE Vs. VITHALRAO HANDE

JUDGEMENT

(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 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 Mehta, 2006 6 BCR 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 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 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, subsection (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 269 indicate 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 the category mentioned in subsection (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:

(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 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 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 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.