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2006 DIGILAW 1339 (BOM)

RUPALI MEHTA v. TINA NARINDER SAIN MEHTA

2006-08-29

D.K.DESHMUKH

body2006
JUDGMENT :- This Notice of Motion has been taken out plaintiff in Suit No. 75 of 2005. Petition No. 378 of 2005 has been filed by the present plaintiff Rupali Mehta praying for grant of letters of administration the Will annexed. The letters of administration with are sought in relation to estate the left behind by Captain Narindersain Bhimsain Mehta, who expired on 22nd December, 2004. The Defendant Tina Narinder Sain Mehta had filed a caveat and therefore the petition was converted into Testamentary Suit No. 75 of 2005 2. The plaintiff has taken out this Notice of Motion seeking an order for appointment of the receiver as also seeking interim orders in relation property which according to the plaintiff is left behind by the deceased. 3. An objection has been raised on behalf of the Defendant maintainability of this Notice of Motion seeking interim orders in relation property which according to the plaintiff is left behind by the deceased ground that in a petition filed for letters of administration with Will attach a petition for grant of probate, title of the deceased to the property or pro left behind by the deceased is not the subject-matter of the suit and there. Court does not have power and jurisdiction to make interim orders in relation the property. 4. I have heard the learned Counsel appearing for both sides in de this question. According to the plaintiff, in terms of the provisions of section of the Indian Succession Act to the proceedings for grant of probate and letters administration, the provisions of the Code of Civil Procedure is application therefore, according to the learned Counsel section 141 of the Civil Procedure Code applies and therefore this Court has the jurisdiction to make interim in relation to the property which according to the plaintiff is left behind: deceased. The learned counsel has relied on several decisions of different high Courts, even of this Court, to contend that the provisions of section 141of the Civil Procedure Code apply to a testamentary suit. The learned Council also referred to several orders made by this Court granting interim or; testamentary suits in relation to the properties. The learned Counsel also relied a judgment of the learned single Judge of the Calcutta High Court in the Priyamvada Devi Sir/a vs. Laxmi Devi Newar and anr, 2005(4) CHN 544 5. The learned Council also referred to several orders made by this Court granting interim or; testamentary suits in relation to the properties. The learned Counsel also relied a judgment of the learned single Judge of the Calcutta High Court in the Priyamvada Devi Sir/a vs. Laxmi Devi Newar and anr, 2005(4) CHN 544 5. Perusal of the preamble of the Indian Succession Act, 1925 show that the Act has been enacted to consolidate the law applicable to intestate testamentary succession. The Act has been divided into several parts and each parts has been divided into several chapters. Part-I of the Act deals with short title and contains the dictionary of the Act i.e. definitions of various words in the Act and power of the State Government to exempt any race or tri the operation of the Act. Part-II deals with Domicile. Part-II deals with Part-IV deals with Consanguinity. Part-V deals with Intestate Succession VI deals with Testamentary Succession. Perusal of section 57 of the Act shows that this Part-VI deals with testamentary succession of Hindu, Buddhist, Sick or Jaina on or after the first day of September, 1870 within the territories the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Court Judicature at Madras and Bombay. Part-VII deals with Protection of property Deceased person. Part-VIII deals with Representative Title to property Deceased on section and Part –IX deals with grant of probate. Letters of Administrative and Administrative of Assets of Deceased. Part-IX is divided in chapters. Perusal of Part-IX shows that it begins with section 217. Section 217 reads as under :_ 217. Applicant of Part. - Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letters 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. 6. Perusal of the provisions of the above section shows that grant of ate and letters of administration as also the administration 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. 6. Perusal of the provisions of the above section shows that grant of ate and letters of administration as also the administration 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. application is to be decided. Section 268, which is found in Part-IX lays n that provisions of the Code of Civil Procedure are applicable. Section 269 reads only provision that I find in Part-IX of the Succession Act giving power 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. - (l) 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 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. I 7. Perusal of this section shows that special power which is conferred on,Court by this section to interfere for protection of property till probate is ted is not available in cases where the deceased is Hindu, Muhammadan, dhist, Sikh or Jaina or an Indian Christian who has died intestate. There is no dought that in the present case the deceased was Hindu and therefore section 269 is not available. There is no dought that in the present case the deceased was Hindu and therefore section 269 is not available. In my opinion, the very fact that the Legislature has made a special provision in section 269 giving power to the Court to make orders for section of property during the pendency of the probate petition or a petition for letters of administration and restricted that power in case of certain category of person indicates two things i) that in order to enable a testamentory Court to make interim order in relation to the properties during the pending of probate petition or a petition for letters of administration, the legislature has to enact a vision in that regard and ii) that the legislature did not intend to confer such a power on the testamentory Court in relation to the persons who a category mentioned in section 269(2) of the Act. So far as the Act is c there is one more provision which gives power to the Court to make protection of the property and that provision is contained in section I92 section 193. Sections 192 and 193 reads as under :_ 192. Person claiming right by succession to property of deceased may apply for relief against wrongful possession. - (1) If any person dies leaving property, moveable or immovable, any person claiming by succession thereto, or to any portion thereof, may make applicant the District Judge of the district where any part of the property or situate for relief, either after actual possession has been another person, or when forcible means of seizing posse apprehended. (2) Any agent, relative or near friend, or the Court of Wards within their cognizance, may, in the event of any minor, disqualified or absent person being entitled by succession 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 n as to whether there is sufficient ground for believing that the possession or taking forcible means for seizing possession has n title, and that the applicant, or the person on whose behalf he a really entitled and is likely to be materially prejudiced if left ordinary remedy of a suit, and that the application is made bona fide. 8. Sections 192 and 193 quoted above are found in Part-VII of Perusal of the provisions of Part-VII shows that the order for the protection 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 or necessary and the Court cannot wait for the party to secure that order by an ordinary remedy of civil suit. The order under sections 192 and 193 made only to prevent a person having no rights in relation to the property forcible possession. Sections 208 and 209, in my opinion, are also relevant. reads as under :- 208. Saving of right to bring suit. - Nothing contained in his this Part shall be any impediment to the bringing of a suit either by the part application may have been rejected before or after the summoning party in possession, or by the party who may have been evicted possession under this Part. 209. Effect of decision of summary proceeding. The decision District Judge in a summary proceeding under this Part shall other effect than that of settling the actual possession; but purpose it shall be final, and shall not be subject to any appeal or 9. Perusal of the above quoted provisions shows that the order made Court under Part-VII does not prevent the party from bringing a suit on the question and those orders are restricted only to the possessory aspect property. In other words, where the Court finds that the party can conveniently institute a civil suit and obtain suitable order about protection of the property, the court will not only be justified but also would be under a duty to leave the party adopt an ordinary remedy of civil suit. The Supreme Court has considered the scheme of Part-VII of the Act in its judgment in the case of Uma Devi Nambiar and ors vs. T.C. Sidhan, (2004) 2 SCC 321 . Observations made in paragraph 17 to 22 of the judgment are relevant. They read as under ;_ 17. Now we shall deal with the scope of section 208. The object of Part VII of the Act is to protect the property appertaining to large estates in case of a dispute as to succession. Observations made in paragraph 17 to 22 of the judgment are relevant. They read as under ;_ 17. Now we shall deal with the scope of section 208. The object of Part VII of the Act is to protect the property appertaining to large estates in case of a dispute as to succession. This Part in some respect stands in a similar position to section 145 of the Code of Criminal Procedure, 1973 (in short "the Code") with respect to certain specified properties, where its scope is large inasmuch as it embraces all properties movable and immovable and once for all its settles the right to hold possession of the property summarily directing the other disputants to seek their remedy in proper Court. (See Bisa Ram vs. Emperor). A person aggrieved by an order passed in a summary proceeding under Part VII, should seek remedy by a suit and not by an application for revision. This remedy is preserved by this section. (See Gaurishankar vs. Debiprasad). The suit should be a suit for possession by establishment of title. (See Bhoba Tarani vs. 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 vs. Indra Chandra Kisriwala, Mohd.Ali Mohd. Khan vs. Bismillah Begam, Sahdeo Karan Singh vs. Usman Ali Khan, Ahmad Din Allah Ditta vs. Partap Singh, Mohd. Ismail vs. Hanuman Parshad and Masina Bavamma vs. 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. 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 192, inter alia, provides that a person who claims right by succession can make an application in respect of a property, movable or immovable, left behind a person who has died. Section 193 provides for an enquiry by the District Judge to whom such an application is made and section 194 deals with the procedure to be adopted when an application is made under section 192. 21. The Court before taking any steps in the matter under section 194 is required to be satisfied of the existence of such strong ground of belief on both points i.e. the person in possession has no lawful title and that the person applying is likely to be materially prejudiced if left ordinary remedy of a regular suit. An order under section 194 is nature of summary decision and can only be passed if the condition embodied in Section 193 are fulfilled. The expression "subject to means subject to a suit contemplated under section 208 i.e. a regular to establish title and obtain possession. 22. The effect of a summary decision even in an extreme case is n to a regular suit. The underlying object of section 208 and Part particularly to protect the property appertaining to large estates in a dispute as to succession. As noted above, it has great similarity proceeding under section 145 of the Code with respect to specified properties where its scope is large inasmuch as it embraces properties movable and immovable and once for all it settles the hold possession of the property summarily directing the other disputants to seek their remedy in proper Court by appropriate proceed person aggrieved by an order passed by a summary proceed in Part VII is required to seek remedy by a suit and not by an app for revision. This remedy is preserved by section 208. Section 2 the position further clear. It provides that the decision of a District in a summary proceeding under Part VII shall have no other effect that of settling the actual possession, but for this purpose it shall and shall not be subject to any appeal or review. This remedy is preserved by section 208. Section 2 the position further clear. It provides that the decision of a District in a summary proceeding under Part VII shall have no other effect that of settling the actual possession, but for this purpose it shall and shall not be subject to any appeal or review. But where inst summary disposal, there is in-depth analysis of the evidence conclusive conclusions/decisions arrived at, it cannot be said that there has been a proper exercise of the power conferred while dealing application under section 192 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 spending. But order can be sought only in relation to possession of property deceased, and only when the orders are urgently needed. Insofar as the present notice of motion is concerned, it is nobodys case that the notice of taken out under section 192 of the Act. Section 247 of the Act vests power in the Court to appoint an administrative of the estate of the deceased person. Section 247 reads as under :_ Administration. respondent lite :- Pending any suit touching the validity of the Will of a deceased person or for obtaining or revoking an or any grant of letters of administration the Court may administrator of the estate of such deceased person, who shall the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be 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 making an order for appointment of administrator decide what is the property behind by the deceased and it does not make any interim order in relation property. 10. Thus, to my mind, it is clear that in the Act itself there is no provision authorising testamentary Court to make interim order as a matter of course section of the property during the pendency of the testamentary suit. 11. No doubt not only section 141, but the entire Civil Procedure Code is able to a testamentary suit. Therefore, the power of the Court under Order would also be available to the Court for making orders of temporary injunction. 11. No doubt not only section 141, but the entire Civil Procedure Code is able to a testamentary suit. Therefore, the power of the Court under Order would also be available to the Court for making orders of temporary injunction. But for making an order of temporary injunction under Order, the property in relation to which the order is sought has to be subject matter of the suit. Similar is the case with the provisions of Order XL, in relation appointment of the receiver. An order of temporary injunction or an order appointing the receiver can be made by the Court only in relation to the property h is subject-matter of the suit. A Civil Court can also make interim order in on to property which is not the subject-matter of the suit, but interim order in relation to such property is necessary to be made to secure the execution of the decree that the Court may pass in the suit. However, in a testamentary suit, properly left behind by the deceased is not the subject-matter of the testamentary The nature of decree that the testamentary Court passes is such that to secure execution it is not necessary for the Court to make any interim order in on to any property. The Division Bench of the Patna High Court in its Judgment in the case Kashi Nath Singh vs. Dulhin Gulzari Kuer, AIR 1941 Patna has observed thus : In an application for probate of a Will or for the grant of letters of administration with a copy of the Will annexed the sole question that arises is whether or not the Will is a true one. It is not open to the probate Court to decide whether or not the property with which a testator has purported to deal, in fact, belonged to him. In 19 All 458 Sir John Edge said this: It has been contended that where an application for probate of a Will is contested and it is alleged that the property dealt with by the Will was not of the testator or was not property over which the testator had a power of testamentary disposal, it is the duty 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. 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 inconvenient and troublesome proponents of a Will who are thereby put to the expense of pro vi solemn form when it might otherwise be proved in common would dismiss this appeal with costs. 12. It is thus clear that in a petition for probate of a Will or a petit grant of letters of administration the sole question that arises for consider whether or not the Will is genuine or not? The property left behind deceased is not the subject-matter of decision of the probate Court. observations were made by the Division Bench of the Patna High Court considering the question whether a caveat filed by a person who disputes the testator to the property is maintainable or not and the Division Bench held that a caveat filed by such a person is not maintainable. The Supreme Court referred to the decision of the Patna High Court in Kashi Nath Singh case, judgment in the case of Shanta G. Z. Mehta vs. Sarla J. Mehta and or, 2004 SC 1238 in its paragraphs 5 and 6 of its judgment. The Supreme Court referred to the decision of the Patna High Court in Kashi Nath Singh case, judgment in the case of Shanta G. Z. Mehta vs. Sarla J. Mehta and or, 2004 SC 1238 in its paragraphs 5 and 6 of its judgment. Those paragraph 6 read as under :- 5. There is no dispute about the question of law that the Caveat denies the title of the testator has no right to contest the Will remedy is to approach the Civil Court to agitate the question of title learned Counsel for the plaintiff invited my attention to number of decisions of this point, where it has been uniformly held that the caveater who denies the title of the testator has no right to contest the proceedings. He has relied on AIR 1932 Patna 89, Ramyad Ma Ram Bhaju Mahton; 1993(1) Bombay CR 340, Eruch Rustom Iraani Limji Kalkashroo Panday, AIR 1941 Patna 475, Kashi Nath Si Dulhin Gulzari Kuer; and some other decisions where it ha uniformly held that if the caveator disputes the title of the testator, he has no right to lodge the caveat and the caveat has to be rejected. As stated there cannot be any dispute about this proposition of law. 6. It may also be noted that in most of the cases cited above, the caveator had no personal interest in the property as an heir in the present case respondents are daughter-in-law and grand children of the d testator. If the Will is not in existence or the Will is proved to genuine then there can be no dispute that the respondents are entitled share in the property of the testator. Therefore, the respondents heirs are directly interested in challenging the execution of the Will As could be seen from the affidavit filed in support of the cay respondents have taken number of pleas challenging the execution Will. It is only recently they have amended an affidavit to take one m that the testator had no competence to execute the Will in respondent joint family property. It may be that the Testamentary Court jurisdiction to go into the question of title. A mere fact that the ca have been taken an alternative plea and that too "without prejudice” other contentions their caveat cannot be rejected as contended on of the plaintiff. It may be that the Testamentary Court jurisdiction to go into the question of title. A mere fact that the ca have been taken an alternative plea and that too "without prejudice” other contentions their caveat cannot be rejected as contended on of the plaintiff. In none of the decisions relied on by the learned 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 by the learned counsel for the plaintiff are applicable to the facts of the present case. Here the respondent being the natural legal heirs of the deceased along with the plaintiff are entitled to challenge the execution of the Will. The mere fact that they have now taken up a new and additional plea as an alternative plea and without prejudice to the earlier contentions cannot take away their defence. Hence, I am not impressed by the contention urged on behalf of the plaintiff that the caveat is liable to be rejected and the proceedings should be treated as non-contentious. 13. It is thus clear that the Supreme Court has held that the proposition of which is laid down by the Division Bench of the Patna High Court in its argument in Kashi Nath Singh case is undisputable. The Supreme Court has also served that the testamentary Court has no jurisdiction to go into the question of title of the deceased to the property mentioned in the Will. It is thus clear that 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 vii Procedure Code, the Court would not be entitled to make any interim order relation to protection of the property, unless, an order is required to be made the Court in the peculiar circumstances under Part-VII of the Act. 14. 14. So far as various orders made by this Court from time to time making rim orders in relation to the property in testamentary suits are concerned, as question of existence of the power in the Court to make such an order was either raised nor decided in those cases, they will not constitute a precedent, before, in my opinion, are not relevant for deciding the question. So far as the argument of the learned single Judge of Calcutta High Court in the case of Priyamvada Devi Birla is concerned, the learned single Judge of the Calcutta high Court has proceeded on the assumption that the Court has inherent power to pass suitable interim orders for protection of the property in probate petition. It is clear from the scheme of the Act to which I have made reference above, that there is no such inherent power available to the Court. In my opinion, in view of scheme of the Act, it will not be possible for any Court to assume existence such inherent power in the Court. 15. For all these reasons, therefore, in my opinion, Notice of Motion is not maintainable and hence it is disposed of. At the request of the learned Counsel appearing for the plaintiff, operation the ad-interim order which is presently operating is continued for a period of r weeks from today. Order accordingly.