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CALCUTTA HIGH COURT
Arindam Mukherjee, J.
In Goods of: Kiran Bala
Sahu (Deceased) —Appellant
versus
Suprama Maiti and Anr. —Respondents
General Application No.1884 of 2018; Testamentary Suit No.9 of 2017
Decided on 24.12.2019
Counsel for the Parties:
Sk Sayed Hossain, Advocate, Soumyajit Ghosh, Advocate, Soumi Guha Thakurata, Advocate, S. Chatterjee, Advocate
IMPORTANT POINT
Probate Court is not competent to determine question of title of properties bequeathed under Will.
Headnote:
(A) Indian Succession Act, 1925 – Section 276 – Probate of Will – Probate Court is invited to see whether Will executed by testator was actually executed by him in a sound disposing state of mind without coercion or undue influence and same was duly attested – Probate Court is not competent to determine question of title of properties bequeathed under Will nor can it go into nature of such property as to whether it was joint ancestral property or self-acquired property of testator – Title of properties, as mentioned in Will or those which may have been left behind by testator being subject matter of estate covered by Will does not fall for consideration in a testamentary suit. (Para 7)
(B) Civil Procedure Code, 1908 – Section 151 – Inherent jurisdiction – If there is a specific provision available in Code of Civil Procedure, 1908 for entertaining an application and passing orders therein, inherent power available to Court under section 151 of Code of Civil Procedure, 1908 should not be used. (Para 8)
Result: Petition dismissed.
JUDGMENT
Arindam Mukherjee, J.—The petitioner is the executor of the last Will and testament dated 4th May, 1997 (hereinafter referred to as the said Will) said to have been left behind by Kiran Bala Sahu, deceased. Kiran Bala Sahu had one son Probodh Sahu and a daughter Bijali Rani Pakhira. Bijali has, however, pre-deceased Kiran Bala Sahu leaving behind Suprama Maiti and Swapan Pakhira, the defendants/respondents as her only heiress and heir. The plaintiff/petitioner and the defendants/respondents are, therefore, the legal heir and heiress of the deceased in intestacy. Probodh Sahu is the executor named in the said Will and is also the beneficiary thereunder. The estate comprises of immovable properties at District Purba Medinipur which are entirely outside the ordinary original civil jurisdiction of this Court. Probodh Sahu has applied for grant of probate of the said Will before this Court, on or about 2nd December, 2016, the grant is now being opposed by the defendants/respondents. The probate proceeding is pending after being marked as contentious cause and converted into a testamentary suit.
2. In the pending testamentary suit, the executor being also the beneficiary and the plaintiff/petitioner has applied for issuance of an order of injunction restraining the defendants/respondents from dealing with, disposing of, alienating and/or encumbering the properties of the estate said to have been left behind by Kiran Bala Sahu and the subject matter of the said will. The instant application (hereinafter referred to as the said application) has been made by the plaintiff/petitioner in the testamentary suit for injuncting the respondents.
3. The petitioner submits that the respondents are required to be restrained by necessary orders of injunction from dealing with or disposing of the properties and assets of the estate till the grant is made in favour of the executor. Unless the respondents are restrained, the respondents will sell and continue to sell and/or dispose of or deal with the assets of the estate which will not only result in depreciation of the assets of the estate and diminishing its value but also will ultimately leave no properties and assets of the estate for assent to the beneficiary after the grant. The Court should exercise its inherent powers to restrain the respondents otherwise the executor-cum-beneficiary will be seriously prejudiced. It is further submitted by the petitioner showing a conveyance annexed to the affidavit-in-opposition that a prima facie case has been made out against the respondents, as the said conveyance demonstrate that the respondents have sold out at least one of the properties of the estate and there is every likelihood of the respondents selling out other properties of the estate if not prevented. The petitioner further submits the balance of convenience and inconvenience is in favour of the petitioner, as in the capacity of an executor as also being the beneficiary, the petitioner is entitled to an injunction to protect the properties and assets of the estate. The petitioner further submits that the petitioner has made out a prima facie case as against the respondents for going to trial.
4. The petitioner refers to a suit filed by the petitioner before the Tamluk Court at Purba Medinipur as against the respondents and the third party purchaser for declaration and permanent injunction. The petitioner submits that in the event, this Court does not want to exercise its jurisdiction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 to injunct the respondents, this Court in exercise of its inherent powers under section 151 of the Code of Civil Procedure, 1908 is competent to issue the orders of injunction restraining the respondents from dealing with disposing of alienating, encumbering or selling the assets of the estate while exercising probate jurisdiction and the instant case is fit for exercising of such inherent powers. The petitioner relies upon a Division Bench J
