2011 Supreme(Bom) 385
2011(4) ALLMR 189
High Court of Judicature at Bombay
THE HONOURABLE DR. JUSTICE D.Y. CHANDRACHUD & THE HONOURABLE MR. JUSTICE ANOOP V. MOHTA
Ramchandra Ganpatrao Hande alias Handege
Versus
Vithalrao Hande & Others
APPEAL NO.797 OF 2010 IN NOTICE OF MOTION NO.37 OF 2009 IN PETITION NO.158 OF 2009
Decided on: 29-03-2011
Advocates Appeared:
For the Appellant:Aniruddha A. Joshi with Shishir Joshi i/b Priti S. Joshi, Advocates.
For the Respondents:R2 & R3, A. Wadia i/b Kunal Cheema, R4 & R5, F. Bharucha i/b M.R. Phal, Advocates.
Headnote:Succession Act, 1925 - Sections 266, 268 and 269-Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2-Grant of Probate-Application for interim injunction restraining respondents from interfering with property of testatrix-Jurisdiction of Probate Court-Confined only to consider genuineness of Will-It cannot go into title or even existence of property itself-Property of deceased not subject-matter in probate proceedings-No injunction can be granted therein-Recourse to civil suit not precluded.-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 in Sections 266 and 268 must be read in the context of the specific provisions which are made in Section 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 and 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 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 268 were 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 the 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 of Section 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.
Judgment :
DR. D.Y.CHANDRACHUD, J.
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) Bom.C.R. 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 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 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 provis
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