IMPORTANT POINTS
(1) Appointment of Administrator Pendente lite – Interim protection order cannot be granted in respect of estate which belongs to a Hindu/ Mohammeden/ Sikh/ Jain.
(2) Inherent Jurisdiction – No inherent power of court can be exercised when there is specific provision to that effect.

JUDGMENT

Apurba Sinha Ray, J.—The parents of the petitioner allegedly executed two separate Wills in favour of her brother in respect of properties at Salt Lake and also at Kalyani along with movables. Two separate probate proceedings were initiated in the year 2007 by the executor/brother of the petitioner, and after being registed by the petitioner the said proceedings have become contentious, and are now pending as testamentary suits. Other sister raises no objection to the prayer of the executor/ beneficiary of the said Wills.

2. According to the petitioner, the executor being a resident of USA is not taking proper care in maintaining the valuable immovable properties at Salt Lake City, Kolkata and Kalyani. As a result of which the property at Salt Lake City, Kolkata has become dilapidated. The property at Kalyani has been intruded by outsiders and has been encroached upon. Photographs of two properties have been placed with the records.

3. It is also alleged by the petitioner that she came to know from reliable sources that the executor is also trying to sell off both the immovable properties, and if he is able to do so, the petitioner will suffer irreparable loss and injury since she has caveatable interest and she has every chance to succeed in the testamentary suits.

4. Accordingly, the petitioner have made two separate prayers by filing two petitions in both the Testamentary Suits being nos.7/2007 (re: Will of Usha Mukherjee, deceased) and 8/2007 (re: Will of Tarapada Mukherjee, deceased) for injunction restraining the executor from alienating immovable properties etc, and appointment of Administrator pendente lite and the numbers of such petitions are GA 2 of 2024 and GA 3 of 2024 respectively in both the suits.

4.1. Mr. Mitra, learned Senior Advocate, has submitted that the anxiety of the petitioner cannot be said to be mere apprehension since the brokers were enquiring her by sending letters whether the properties at both the locations as stated above are going to be sold very soon. Further, in order to show that the property at Salt Lake City, Kolkata has become dilapidated and the property at Kalyani has been encroached upon, several photos have been placed before the Court. The petitioner has been able to show that her contention has merits, and, therefore, the court should allow both the prayers of the petitioner and if allowed, the executor would not suffer any injury in true sense.

5. The learned Counsel, Mr. Ray Choudhury for the executor has vehemently opposed both the prayers of the petitioner by contending that the petitions have been filed only to harass the executor who although resides in USA used to come to Kolkata and take effective steps for maintaining the properties at Salt Lake City, Kolkata and Kalyani. The photographs have no legal basis and further the letters allegedly written by the brokers are false, fabricated. A cursory glance over the same would show that the petitioner is relying on a letter which was written in 2004, prior to initiation of probate proceedings. Moreover, both the letters were written allegedly by the different brokers more or less in same words and language. A broker who carries on business at Kolkata, in all probability has little scope to negotiate with the property at Kalyani.

6. Therefore, the said letters have been manufactured and cannot be relied upon. The petitioner has not been able to show that she has any prima facie case in obtaining the relief of injunction. Only when she is able to cross the first huddle, that is, showing of prima facie case, she will be required to show other grounds i.e. balance of convenience and inconvenience is in her favour and there is a chance of causing irreparable loss and injury to her. In this case, the petitioner is not even able to show that there is a prima facie case in her favour. In support of his contention he relies upon judicial decisions reported at (2006) 1 SCC 540 (Transmission Corpn. Of A.P. Ltd. & Ors. Vs. Lanco K