Dismissed

Anil Dattatray Parab and Ors. v. Jayadev Bal Thackeray

Bombay HC3 Apr 2014NMT/1/2014

Case brief

AI extract

What is this about?

The applicant moved a notice of motion in a testamentary suit seeking to restrain a plaintiff from dealing with the deceased's estate pending probate. The deceased being Hindu, Section 269(2) of the Indian Succession Act bars the testamentary court from granting such interim relief; the notice of motion was dismissed as not maintainable.

What the court decided

AI extract

Anil Dattatray Parab and Ors. Vs Jayadev Bal… — Succession and Inheritance | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY. TESTAMENTARY & INTESTATE JURISDICTION

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NOTICE OF MOTION NO. 1 OF 2014

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IN TESTAMENTARY SUIT NO. 82 OF 2013 IN

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T & IJ PETITION NO. 99 OF 2013

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Jaidev Bal Thackeray Aged 56 years, residing at Flat No. 101/102, First Floor, Dallas Apartment, Kalanagar Co.Op. Hsg. Society, Bandra (East), Mumbai 400051 and also at Matoshree Bungalow, Plot nO. 25, C.S. No. 341/1, Kalanagar Coop. Housing Society, Bandra (East), Mumbai 400 051

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...Applicant/defendant

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In the matter of :

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Shri. B.K. Thackrey … Deceased

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Shri. Anil Dattatraya Parab Aged about 47 years, Hindu, Mumbai Indian Inhabitant, Occupation : Business, residing at 58/2625, Ravi Kiran, Gandhi Nagar, Bandra (East), Mumbai 400 051 Being one of the executors named under last Will and Testament of the Deceased abovenamed.

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Shri. Adhik Narayan Shirodkar alias Adhik Shirodkar, aged about 82 years, Hindu, Mumbai Indian Inhabitant, Occupation : Senior Advocate, having his office at A/7, Girgaum Terraces, Near Pourtuguese Church, Girgaum, Mumbai 400 004 being one of the executors named under Last Will and testament of the deceased abovenamed.

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3. 4.	Shri. Udhav Bal Thackeray, aged about 52 years, Hindu, Mumbai, Indian Inhabitant, Occupation : Political Activist residing at “Matosri”, Kalanagar, Bandra (East), Mumbai 400 051, being one of the executors named under last Will and Testament of the Deceased abovenamed. Shri. Shashi Prabhu, Aged about 68 years, Hindu, Mumbai Indian Inhabitant, Occupation : Architect, residing at 12AC, Ameyanand CHS Ltd. Kashinath Dhuru Road, Opp. Kirti College, Dadar, Mumbai 400 028 being one of the executors named under Last Will and Testament of the Deceased abovenamed.
5.	Shri.Ravindra Ramchandra Mhatre, Aged about 50 years, Hindu, Mumbai Indian Inhabitant, Occupation : Service, residing at Vallabh Apartment, A/28, Goregaon (West), 120, Link Road, (Shejal Park), Mumbai 400 104, being one of the executors named under Last Will and Testament of the deceased abovenamed.	… Plaintiffs/Petitioners

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Versus

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Jaidev Bal Thackeray Aged 56 years, residing at Flat No. 101/102, First Floor, Dallas Apartment, Kalanagar Co.Op. Hsg. Society, Bandra (East), Mumbai 400051 and also at Matoshree Bungalow, Plot No. 25, C.S. No. 341/1, Kalanagar Coop. Housing Society, Bandra (East), Mumbai 400 051 ...Applicant/defendant

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Mr. Rajesh Shah alongwith Mr. Atul Daga i/by M/s. Kanga & Co. for the plaintiffs.

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Ms. Seema Sarnaik along with Mr. Dushyant Purekar for defendant/caveator and applicant in notice of motion.

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CORAM : R.D.DHANUKA J. DATED : APRIL 03, 2014.

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ORAL JUDGMENT :

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By this notice of motion, defendant seeks an order by way of injunction against plaintiff no.3, his heirs, representatives, servants, agents or any other person/s acting on his behalf from creating any third party rights of any nature whatsoever and/or dealing with, disposing off, transferring, assigning in any manner whatsoever and/or mutating, entering his/his nominee's name or any other person/s name/s into the record of rights, property card, bank account/s, any financial instruments of and standing in the name of the deceased described in schedule I annexed to the plaint. The plaintiffs have filed this petition which is converted into suit inter alia praying for probate of the alleged last will and testament dated 13^th December, 2011 of deceased Bal Keshav Thackeray (hereinafter referred to as the “said deceased”).

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Mr. Shah learned counsel for the plaintiffs has raise preliminary issue about the maintainability of the notice of motion on the ground that the testamentary court cannot decide the issue of title and for relief as prayed for by the defendant, such reliefs can be considered only by the Civil Court and not by the testamentary court. In support of his submissions, Mr. Shah placed reliance on the judgment of this court the case of Rupali Mehta Versus Smt. Tina Narinder Sain Mehta, 2006 (6) Mh.L.J. 786 , judgment of the Division Bench of this court in the case of Ramchandra Ganpatrao Hande alias Handege Vs. Vithalrao Hande and Ors, AIR 2011 Bombay 136 , the order of the learned Single Judge of this court delivered on 12^th

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August, 2013 in Notice of Motion No. 35 of 2012 in case of Mahendra Shah and the judgment of this court delivered on 11^th February, 2014 in Notice of Motion No. 77 of 2013 in case of Nikita Dharia Vs. Kishore Chabriya . I will deal with these judgments in the later part of this judgment which are sought to be distinguished by Ms. Sarnaik, learned counsel appearing for the defendant.

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Ms. Sarnaik, learned counsel for the defendant submits that none of these judgments relied upon by Mr. Shah, learned counsel for the plaintiffs are applicable to the facts of this case. It is submitted that defendant being admittedly son of the said deceased is also entitled to inherit the estate of the said deceased in case of intestacy described in the schedule annexed to the plaint. It is submitted that the defendant is not disputing the title of the said deceased in respect of any of the properties described in the plaint. The defendant only seeks protection in respect of these properties which are described in the plaint which admittedly belong to the said deceased and no other properties. The learned counsel placed reliance on section 192, 193, 208, 209, 268, 269, 284 to 286, 295 of the Indian Succession Act, 1925 and also rule 403 of the High Court (Original Side) Rules. It is submitted that in so far as section 192 is concerned, plaintiffs have filed probate petition, therefore, such power under section 192 cannot be exercised in this case. Learned counsel submits that since the defendant had admittedly filed caveat and affidavit in support of the caveat and upon filing of such caveat and affidavit in support of caveat, the testamentary petition being contested matter has been converted into a suit for all purposes, the said suit has to be proceeded with in accordance with Code of Civil Procedure, 1908 and all provisions of Code of Civil Procedure including Order 39 would be applicable to this proceedings and will have to be followed by the testamentary court

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while considering the prayer for interim protection.

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Learned counsel submits that section 208 of the Indian Succession Act does not prohibit any party from seeking interim protection in respect of the property of the deceased. It is submitted that the testamentary court has all powers which can be exercised by the civil court in respect of the property of the deceased under order 39 and order 40 of the Code of Civil Procedure. It is submitted that though the testamentary court does not decide the title in respect of the property of the deceased, it has power to protect the possession of the property of the deceased testator.

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Learned counsel submits that though section 269(2) of the Indian Succession Act, 1925, it provides that the powers which can be exercised by the District Court under section 269 to interfere for protection of property, does not apply when the deceased is Hindu and such protection or remedy of party claiming interest in the property is taken away by virtue of provisions under section 295 of the Indian Succession Act, the remedy of seeking interim protection in respect of the property is granted by the legislature. Learned counsel submits that under section 295 when the proceedings are already converted into suit being contentious matter, the proceedings have to be tried as regular suit in view of section 141 of Code of Civil Procedure, 1908 and section 295 of the Indian Succession Act, 1925.

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In so far as the judgment of this court in the case of Rupali Mehta (supra) delivered by the learned Single Judge is concerned, the learned counsel submits that in that matter, the interlocutory proceedings were filed by the plaintiff himself and it was not certain whether the relief claimed by the plaintiff was in respect of the property of the deceased

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testator or not. It is submitted that in that matter, this court has considered that the testamentary court can not decide the title in respect of the property of the deceased. The defendant in this case is seeking protection in respect of the property and is neither disputing the title nor has put up title adverse to the title of the deceased in respect of the suit property. It is submitted that the judgment of this court in the case of Rupali Mehta (supra) is not applicable also for the reasons that the property which are described in the schedule appended to the petition are admittedly the properties of the said deceased and no reliefs are claimed by the defendant in respect of the property not set out in the schedule. Learned counsel submits that this court has not considered the effect of section 295 of the Indian Succession Act in the judgment of Rupali Mehta (supra). Learned counsel submits that the remedy of the party to seek interim protection is two fold i.e. under the provisions of order 39 and rule 40 of the Civil of Civil Procedure by filing separate suit before Civil Court and another under section 295 of the Indian Succession Act read with section 141 of the Code of Civil Procedure before testamentary court.

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In order to appreciate the submissions made by the learned counsel for the defendant making an attempt to distinguish the judgment of this court in the case of Rupali Mehta (supra), it would be appropriate to refer to some of the paragraphs of the said judgment i.e. paragraph, 2, 3, 4, 7, 8, 9, 10 to 13 which read thus :

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“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 to the property which according to the Plaintiff is left behind by the deceased.

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An objection has been raised on behalf of the Defendant to the maintainability of this Notice of Motion seeking interim orders in relation to the property which according to the Plaintiff is left behind by the deceased on

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the ground that in a petition filed for letters of administration with Will attached or in a petition for grant of probate, title of the deceased to the property or properties left behind by the deceased is not the subject matter of the suit and therefore, the court does not have power and jurisdiction to make interim orders in relation to the property.

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I have heard the learned Counsel appearing for both sides in detail on this question. According to the Plaintiff, in terms of the provisions of Section 268 of the Indian Succession Act to the proceedings for grant of probate and letters of administration, the provisions of the Code of civil Procedure is applicable and therefore, according to the learned Counsel Section 141 of the Civil Procedure Code applies and therefore this Court has the jurisdiction to make interim orders in relation to the property which according to the Plaintiff is left behind by the deceased. The learned Counsel has relied on several decisions of different High Courts, even of this Court, to contend that the provisions of Section 141 of the Civil Procedure Code apply to a testamentary suit. The learned Counsel also referred to several orders made by this Court granting interim orders in testamentary suits in relation to the properties. The learned Counsel also relied on a judgment of the learned single Judge of the Calcutta High Court in the case of Priyamvada Devi Birla v. Laxmi Devi Newar and Anr. MANU/WB/0266/2005: 2005(4)CHN544 .

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Perusal of this section shows that special power which is conferred on the court by this section to interfere for protection of property till probate is granted is not available in cases where the deceased is Hindu, Muhammadan, Buddhist, Sikh or Jaina or an Indian Christian who has died intestate. There is no doubt 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 protection 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 testamentary 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 provision in that regard and ii) that the legislature did not intend to confer such a power on the testamentary court in relation to the persons who are of the category mentioned in Section 269(2) of the Act. So far as the Act is concerned, there is one more provision which gives power to the court to make orders for protection of the property and that provision is contained in Section 192 and Section 193. Sections 192 and 193

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reads as under:

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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 a right by succession thereto, or to any portion thereof, may make application to the District Judge of the district where any part of the property is found or situate for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended.

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(2) Any agent, relative or near friend, or the Court of Wards in cases within their cognizance, may, in the event of any minor, or any disqualified or absent person being entitled by succession to such property as aforesaid, make the like application for relief.

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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 necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide.

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Sections 192 & 193 quoted above are found in Part-VII of the Act. Perusal of the provisions of Part-VII shows that the order for protection of the 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 orders are necessary and the court cannot wait for the party to secure that order by adopting an ordinary remedy of civil suit. The order under Sections 192 and 193 can be made only to prevent a person having no rights in relation to the property taking forcible possession. Sections 208 and 209, in my opinion, are also relevant. They reads as under:

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Saving of right to bring suit.-Nothing contained in this Part shall be any impediment to the bringing of a suit either by the party whose application may have been rejected before or after the summoning of the party in possession, or by the party who may have been evicted from the possession under this Part.

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Effect of decision of summary proceeding.-

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The decision of a District Judge in a summary proceeding under this Part shall have no other effect than that of settling the actual possession; but for this purpose it shall be final, and shall not be subject to any appeal or review.

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Perusal of the above quoted provisions shows that the order made by the Court under Part-VII does not prevent the party from bringing a suit on the same question and those orders are restricted only to the possessory aspect of the 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 to 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. v. T.C. Sidhan MANU/SC/1026/2003: AIR2004SC1772 . Observations made in paragraph 17 to 22 of the judgment are relevant. They read as under:

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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 moveable 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 Biso Ram v. 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 Gourishankar v. Debiprasad). The suit should be a suit for possession by establishment of title. (see Bhoba Tarani v. 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.

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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 v. Indra Chandra Kisriwala, Mohd.Ali Mohd. Khan v. Bismillah Begam, Sahdeo Karan Singh v. Usman Ali Khan, Ahmad Din Allah Ditta v. Partap Singh, Mohd. Ismail v. Hanuman Parshad and Masina Bavamma v. Yendru Papanna)

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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.

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Section 192, inter alia, provides that a person who claims right by succession can make an application in respect of a property, moveable 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.

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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 to the ordinary remedy of a regular suit. An order under Section 194 is in the nature of summary decision and can only be passed if the conditions embodied in Section 193 are fulfilled. The expression "subject to a suit" means subject to a suit contemplated under Section 208 i.e. a regular suit to establish title and obtain possession.

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The effect of a summary decision even in an extreme case is not a bar to a regular suit. The underlying object of Section 208 and Part VII is particularly to protect the property appertaining to large estates in case of a dispute as to succession. As noted above, it has great similarity to a proceeding under Section 145 of the Code with respect to certain specified properties where its scope is large inasmuch as it embraces all properties moveable and Immovable and once for all it settles the right to hold possession of the property summarily directing the other disputants to seek their remedy in proper court by appropriate proceedings. A person aggrieved by an order passed by a summary proceeding under Part VII is required to seek remedy by a suit and not by an application for revision. This remedy is preserved by Section 208. Section 209 makes the position further clear. It provides that the decision of a District Judge in a summary proceeding under Part VII shall have no other effect than that of settling the actual possession, but for this purpose it shall be final and shall not be subject to any appeal or review. But where instead of a summary disposal, there is in-depth analysis of the evidence and conclusive conclusions/decisions arrived at, it cannot be said that there has been a proper exercise of the power conferred while dealing with an application under Section 192 of the Act.

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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 should be pending. But order can be sought only in relation to possession of property of the deceased, and only when the orders are urgently needed. In so far as the present notice of motion is concerned, it is nobody's case that the notice of motion is taken out under Section 192 of the Act.

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Section 247 of the Act vests power in the court to appoint an administrator of

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the estate of the deceased person. Section 247 reads as under:Administration, pendente lite.- Pending any suit touching the validity of the Will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction.

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Perusal of the provisions of Section 247 shows that the court itself does not while making an order for appointment of administrator decide what is the property left behind by the deceased and it does not make any interim order in relation to the property.

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Thus, to my mind, it is clear that in the Act itself there is no provision made authorising testamentary court to make interim order as a matter of course for protection of the property during the pendency of the testamentary suit.

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No doubt not only Section 141, but the entire Civil Procedure Code is applicable to a testamentary suit. Therefore, the power of the court under Order XXXIX would also be available to the court for making orders of temporary injunction. But for making an order of temporary injunction under Order XXXIX, 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 to 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 which is subject matter of the suit. A civil court can also make interim order in relation 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, property left behind by the deceased is not the subject matter of the testamentary suit. The nature of decree that the testamentary court passes is such that to secure its execution it is not necessary for the court to make any interim order in relation to any property. The Division Bench of the Patna High Court in its judgment in the case Kashi Nath Singh v. Dulhin Gulzari Kuer MANU/BH/0044/1941: AIR1941Pat475 has observed thus:

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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:

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It has been contended that where an application for probate of a will is

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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. 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.

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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 to the proponents of a will who are thereby put to the expense of proving it in solemn form when it might otherwise be proved in common form. I would dismiss this appeal with costs.

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It is thus clear that in a petition for probate of a Will or a petition for grant of letters of administration the sole question that arises for consideration is whether or not the Will is genuine or not? The property left behind by the deceased is not the subject matter of decision of the probate court. These observations were made by the Division Bench of the Patna High Court while considering the question whether a caveat filed by a person who disputes title of the testator to the property is maintainable or not and the Division Bench has held that a caveat filed by such a person is not maintainable. The Supreme Court has referred to the decision of the Patna High Court in Kashi Nath Singh case in its judgment in the case of Shanta G.Z. Mehta v. Sarla J. Mehta & Ors. in its paragraphs 5 & 6 of its judgment. Those paragraphs 5 & 6 read as under:

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There is no dispute about the question of law that the Caveator who denies the title of the testator has no right to contest the will and his remedy is to approach the Civil Court to agitate the question of title. The learned Counsel for the plaintiff invited my attention to number of decisions of this point, where it has been uniformly held that the caveator who denies the title of the testator has no right to contest the probate proceedings. He has relied on MANU/BH/0054/1931: AIR1932Pat89 Ramyad Mahton v. Ram Bhaju Mahton; MANU/MH/0590/1992: (1992)94BOMLR351 (Eruch Rustom Irani

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v. Limji Kalkashroo Panday) MANU/BH/0044/1941: AIR1941Pat475 (Kashi Nath Singh v. Dulhin Gulzari Kuer); and some other decisions where it has been 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 already stated there cannot be any dispute about this proposition of law.

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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, the Respondents are daughter-in-law and grant children of the deceased testator. If the Will is not in existence or the Will is proved to be not genuine then there can be no dispute that the Respondents are entitled to a share in the property of the testator. Therefore, the Respondents being heirs are directly interested in challenging the execution of the Will.

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As could be seen from the affidavit filed in support of the caveat, the Respondents have taken number of pleas challenging the execution of the Will.

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It is only recently they have amended an affidavit to take one more plea that the testator had no competence to execute the Will in respect of the joint family property. It may be that the Testamentary court has no jurisdiction to go into the question of title. A mere fact that the caveators have been taken an alternative plea and that too "without prejudice" to other contentions their caveat cannot be rejected as contended on behalf of the plaintiff. In none of the decisions relied on by the learned Counsel 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 my 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.

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It is thus clear that the Supreme Court has held that the proposition of law which is laid down by the Division Bench of the Patna High Court in its judgment in Kashi Nath Singh case is undisputable. The Supreme Court has also observed 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

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not the subject matter of the testamentary suit, and therefore, in my opinion, in exercise of its power under Civil Procedure Code, the court would not be entitled to make any interim order in relation to protection of the property, unless, an order is required to be made by the court in the peculiar circumstances under Part-VII of the Act.”

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On perusal of the said judgment delivered by the learned Single Judge of this court in my view following principles of law can be culled out.

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(a) Under section 269 of the Indian Succession Act which applies to the proceedings for grant of probate and letters of administration, in view of section 141 of the Code of Civil Procedure, the provisions of Code of Civil Procedure applies to the proceedings filed under the provisions of the Indian Succession Act.

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(b) Under section 269, special powers are conferred to the court by which the court is empowered to interfere for protection of the property till probate is granted. However, such power is not available in case where the deceased is 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. Though under section 269, it empowers the court to make orders for protection of property during the pendency of the probate petition or petition for letters of administration such power is restricted in case of certain category of persons described under section 269(2) of the Indian Succession Act.

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(c ) In so far as applicability of section 192 and 193 of the Indian Succession Act is concerned, such summary powers under section

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192 and 193 can be exercised by the court only if the court finds that the orders are necessary and court can not wait for the party to secure that order by adopting an ordinary remedy of civil suit. Such powers can be exercised only to prevent the person having no rights in relation to the property taking forcible possession.

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(d) On reading of section 192, 193 with section 208 and 209 of the Indian Succession Act, it is held that any order made by the court under Part VII does not prevent the party from bringing the suit on the same question and those orders are restricted only to the possessory aspect of the property. It is held that for making an application under section 192, it is not necessary that any proceedings for probate or letters of administration should be pending.

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(e) In Indian Succession Act, there is no provision authorizing the testamentary court to make interim orders as a matter of course for protection of properties during the pendency of the testamentary suit. Though under section 141 of Code of Civil Procedure, it is applicable to testamentary suit, every civil court can make interim order in relation to the property which is not the subject matter of the suit but interim order in relation to the suit property is necessary to be made to secure execution of the decree that court may pass in the suit. In testamentary suit, the property left behind by the deceased is not matter of testamentary suit.

¶106

(f) In the petition for probate of will or petition for grant of letters of administration, the question that arises for consideration is whether or not the will is genuine. The property left behind by the deceased is not subject matter of the decision of the probate court. In the testamentary suit, the property which is mentioned in

¶107

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the will or the property which may or may not be left behind by the deceased, is not subject matter of the testamentary suit. In exercise of its powers under Code of Civil Procedure, the court would not be entitled to make any interim order in relation to protection of the property unless the order is required to be made by the court in the peculiar circumstances under Chapter VII of the Act. In view of the scheme of the Indian Succession Act, it is not possible for any court to assume existence of inherent powers in the testamentary court.

¶110

In my view, there is no merit in the submission made by Ms. Sarnaik, learned counsel for the defendant that the property of the deceased is the subject matter of the testamentary suit. Perusal of section 269(1) and (2) makes it clear that though the testamentary court has power to grant interim protection as provided in section 269(1) in certain circumstances, such powers are excluded from applicability in case of certain categories of persons described in section 269(2) which includes Hindu.

¶111

I am not inclined to accept the submission of Ms. Sarnaik that in the facts of the case of Rupali Metha (supra), it was not clear whether the plaintiff who had applied for interim orders was in respect of the property of the deceased or outside the estate of the deceased. Perusal of paragraph 2 of the judgment in case of Rupali Mehta (supra), makes it clear that plaintiff had applied for interim orders in relation to the property which according to plaintiff was left behind by the deceased. In my view, the judgment of this court in the case of Rupali Mehta (supra) is squarely applicable to the facts of this case.

¶112

In so far as judgment of the Division Bench of this court in the case of

¶113

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Ramchandra Hande (supra) is concerned, perusal of the said judgment indicates that the court has approved the views of this court in the case of Rupali Mehta (supra). The Division Bench of this court has adverted to the judgment of the Supreme Court in the case of Krishna Kumar Birla Vs. Rajendra Singh Lodha AIR 2008 SC (Supp) 1663 . The Supreme Court has held in the said judgment that the jurisdiction of the probate court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into in the probate proceedings. Construction of a Will relating to the right, title and interest of any person is beyond the domain of the probate court. After adverting to the said judgment, it is held that Indian Succession Act, 1925 is a self contained Code as regards the making of an application for a probate and the grant or refusal of probate. The Division Bench has also interpreted section 268 of the Indian Succession Act and has held that save as is otherwise provided, the proceedings before the court of District Judge in relation to grant of probate and letters of administration shall be regulated as far as circumstances of the case permit by the Code of Civil Procedure. The Division Bench in the said judgment has also adverted to the judgment of the Division Bench of this court in the case of Thrity Sam Shroff Vs. Shirnaz Byramji Anklesaria, 2007 (2) All MR 856 which has dealt with section 266 and 268 and 295 of the Indian Succession Act at length.

¶116

The Division Bench has held in the case of Ramchandra Hande (supra) that the powers of the court under section 269(2) precludes exercise of powers when the deceased belongs to one of the categories specified in sub section 2 of section 269. The effect of sub section (2) of section 269 is to preclude the exercise of powers in case of one of the excepted categories. It is held that it would not be permissible, in the face of specific provisions of

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sub section (2) of section 269 to read into the provisions of Sections 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. The probate court is not concerned with questions relating to the property itself. The Testamentary court is concerned only with the question as to whether the will of the deceased is genuine and that it has been made voluntarily. It is held that in view of express provisions contained in section 269(2), there can be no recourse to exercise of inherent powers of Civil Court. It is not in dispute that the deceased was Hindu and falls in the said category provided under section 269(2) of the Indian Succession Act. I am respectfully bound by the Division Bench of this court in the case of Ramchandra Hande which in my view is squarely applicable to the facts in this case. Learned counsel for the defendant in my view could not distinguish this judgment.

¶120

Ms. Sarnaik, learned counsel for the applicants placed reliance on the judgment of this court in the case of Thrity Sam Shroff Versus Shiraz Byramji Anklesaria and anr. 2007(2) Bom. C.R. 560 . The learned counsel submits that the Division Bench of this court in the matter of Thrity Shroff (supra) has held that in view of section 141 of the Code of Civil Procedure, all provisions of Code of Civil Procedure applies to the testamentary court on the proceedings having been converted into a suit. Paragraphs 8, 10, 11, 13, 34 and 36 of the said judgment would be relevant for the purpose of deciding the issue involved in this Notice of Motion which read thus :

¶121

“8. It is not in dispute that there is no specific provision in the said Act providing either for survival or abatement of the proceedings for grant of probate on the death of all the executors. However, it is the contention on behalf of the appellant that such proceeding being in the nature of suit in terms of Section 295 of the said Act, the provisions of Order XXII Rule 4A of Code of Civil Procedure are clearly attracted which contention is sought to be

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seriously disputed on behalf of the respondents. It cannot be disputed that in such proceeding the final order is in the form of grant of probate, and the same is passed "in rem" and not "in personam". It is, therefore, sought to be contended that such proceedings would not abate on the death of the executors. However, referring to Section 226 of the Indian Succession Act, it is strenuously argued on behalf of the respondents that the very fact that a right to sue survives only in favour of the surviving executor or executors under the said Section, and the probate can be granted only to the executors in terms of Section 222 of the said Act, it must be held that on the death of all the executors, the proceeding for grant of probate would stand abated.

¶126

Section 295 of the said Act relates to the procedure in contentious cases. It provides that such proceedings shall take form of a regular suit according to the provisions of Code of Civil Procedure. The question then is whether it would make the proceeding to be "the suit" within the meaning of the said expression under the Code of Civil Procedure and therefore the provisions of Order XXII of the Code of Civil Procedure would apply? Section 295 of the said Act in fact reads thus:

¶127

Procedure in contentious cases. - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.

¶128

Undoubtedly, Section 295 of the said Act is in relation to procedure that is to be followed in respect of probate proceedings, once the same becomes contentious. The petitioner for the probate becomes the plaintiff whereas the person who opposes the grant of probate becomes the defendant and the proceedings proceed in the form of a regular suit according to the Code of Civil Procedure. The provision of law, however, nowhere states that the proceeding for grant of probate would be a suit under the Code of Civil Procedure. The framers of law, on the contrary, have cautiously used the expression "take, as nearly as may be, the form of a regular suit according to the provision of Code of Civil Procedure". Firstly, it is not stated to be a suit under the Code of Civil Procedure. Secondly, it is specifically stated that the proceedings should take the "form of a regular suit". Thirdly, it is specified to take the form of a suit "as nearly as may be" and not even full-fledged form of a suit. If the intention of framers of law was to give the character of a suit under the Code of Civil Procedure to such proceeding, then there was no need to incorporate all those expressions in Section 295 and it would have been sufficient to specify the proceeding to be a suit under the Code of Civil Procedure. Instead, the framers have specifically clarified that the proceeding shall merely take the form of a suit according to the Code of Civil Procedure

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and that too as nearly as possible, meaning thereby that though the proceeding is not a suit within the meaning of the said expression under the Code of Civil Procedure, yet the provisions of the Code of Civil Procedure, to the extent they are not inconsistent with those of the said Act, may be followed bearing in mind the limited jurisdiction and function of the probate Court. We are fortified in taking this view by plethora of decisions, including those of the Apex Court.

¶133

In Chiranjilal Shrilal Goenka (deceased) through LRs. v. Jasjit Singh and Ors. reported in MANU/SC/0496/1993: [1993]2SCR454 , the Apex Court held that:

¶134

...the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or of the existence of the property itself.

¶135

It is well settled that merely because the provisions of Code of Civil Procedure are made applicable to a proceeding, that by itself will not transform such proceeding into a suit within the meaning of the said expression under the Code. The Apex Court in Diwan Brothers v. Central Bank of India reported in MANU/SC/0009/1976: AIR1976SC1503 while dealing with the decision of a Tribunal under Displaced Persons (Debts Adjustment) Act, 1951 which is referred therein as a decree, held that it would not be a decree within the meaning of Section 2(2) of Code of Civil Procedure or of Schedule II, Article of the Court Fees Act, 1870, nor the proceeding before the Tribunal would be a suit merely because the provisions of the Code of Civil Procedure are made applicable to such proceedings.

¶136

As regards Rule 4A of Order XXII of the Code of Civil Procedure is concerned, it would have no application to such proceedings. Firstly that the right to sue does not survive in such proceeding. Secondly the said rule applies to "suits" within the meaning of the said expression under the Code of Civil Procedure

¶137

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and not to proceedings like those for grant of probate. Thirdly, Section 226 read with Section 222 of the said Act clearly indicates that the proceeding would abate on the death of all the executors. Being so, in probate proceedings, the provisions of Order XXII Rule 4A of the Code of Civil Procedure are not attracted.”

¶140

On perusal of the judgment of the Division Bench in the case of Thrity Shroff (supra), it is clear that the Division Bench has interpreted section 295 of the Indian Succession Act and has held that though in view of section 295 when the probate petition is converted into suit, the proceedings takes form of regular suit according to Code of Civil Procedure, provision of law nowhere states that the proceedings for grant of probate would be a suit under the Code of Civil Procedure. It is specified to take the form of a suit “as nearly as may be” and not even full fledge form of a suit. It is held that the framers have specifically clarified that the proceeding shall merely take the form of a suit according to the Code of Civil Procedure and that too as nearly as possible, meaning thereby that though the proceeding is not a suit within the meaning of the said expression under the Code of Civil Procedure, yet the provisions of the Code of Civil Procedure, to the extent they are not inconsistent with those of the said Act, may be followed bearing in mind the limited jurisdiction and function of the probate Court. The issue before the Division Bench in the case of Thrity Shroff (supra) was whether the testamentary proceedings survives after demise of the sole executor or his legal heirs have to be brought on record. The Division Bench of this court has held that on interpretation of various provisions of the Indian Succession Act and in particular section 222 and 226 which provides that probate can be granted only to the executor, if the sole executor dies, the question of the proceedings being kept open does not arise. It is held that on expiry of the

¶141

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sole executor the proceedings would die natural death.

¶144

The question that arises is whether Order 39 and 40 of Code of Civil Procedure, 1908 applies to the testamentary court for granting interim reliefs under the provisions of Indian Succession Act, 1925 in case of category of persons described under section 269(2) of the Indian Succession Act, 1925.

¶145

In my view, since the deceased being Hindu, falling under the excepted category under section 269(2) of the Indian Succession Act, the said provision clearly bars testamentary court from granting any interim relief which otherwise can be granted under section 269(1) of the Indian Succession Act, 1925 in case of other categories not described under section 269(2). A party who cannot seek interim relief by virtue of such restriction imposed on the court under section 269(2) in case of specified categories, is not prevented from exercising its rights by invoking the provisions of Code of Civil Procedure independently by filing civil suit and by invoking order 39 and Order 40 of the Code of Civil Procedure. In my view, as there is specific bar under section 269(2) from granting interim reliefs, in case of certain categories of persons including Hindus by application of section 295 of the Indian Succession Act or any other provisions of Code of Civil Procedure, the powers of the Civil Court under Order 39 and 40 cannot be extended to and cannot be usurped by the testamentary court. In my view the judgment in the case of Thrity Shroff (supra) relied upon by Ms. Sarnaik, learned counsel for the defendant is of no assistance to the defendant.

¶146

Learned counsel for the defendant placed reliance on the judgment of the Supreme Court in the case of Krishna Kumar Birla Versus

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Rejendra Singh Lodha and Ors. 2008 AIR SCW 2557 in support of the submission that the defendant being one of the son of the deceased and on intestacy would be entitled to inherit property of the said deceased and thus has caveatable interest and is thus entitled to protect the property which may be inherited by him. There is no dispute that defendant has caveatable interest and considering that fact, this court has converted the testamentary petition into the testamentary suit being contentious matter.

¶150

Ms. Sarnaik, learned counsel also placed reliance on the judgment of this court in the case of Shernaz Lawyers and Others Versus Manek Dara Sukhadwalla and Others delivered on 24^th December, 2013 in Notice of Motion No.138 of 2012 in Testamentary Suit No. 29 of 2012 in support of her submission that this court had granted interim reliefs in the notice of motion filed by the plaintiffs in the testamentary suit which was filed for probate. Perusal of the said judgment clearly indicates that the deceased in that matter was Parsi which is not excluded under section 269(2) of the Indian Succession Act. In paragraph 82 of the said judgment, delivered by this court, it is held by this court that the judgment of this court in the case of Rupali Mehta (supra) and Ramchandra Hande (supra) are not applicable since the provisions considered by this court in those judgments were not applicable to Parsis. In my view, since the deceased in this case was Hindu, the reliance placed by the learned counsel for the defendant on the judgment of this court in the case of Shernaz Lawyer (supra) is totally misplaced.

¶151

Ms. Sarnaik, learned counsel for the defendant placed reliance on the judgment of this court in the case of Namdeo Mali Versus Jayram Barde and Ors. 2008(1) ALL MR 819 . Learned counsel submits that this court has

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permitted the defendant in that matter to file counter claim in the testamentary suit which remedy is available under the provisions of the Code of Civil Procedure only. Relying upon the said judgment, it is urged by the learned counsel that since this court has accepted the principle that the remedy of filing counter claim which is available only in Civil Procedure Code and not under the provisions of the Indian Succession Act can be filed in the Testamentary suit, the Notice of Motion for interim relief in respect of the property by invoking provisions of Order 39 and 40 of the Code of Civil Procedure in view of section 141 of the Code of Civil procedure, can be also permitted before the Testamentary court.

¶155

On perusal of the judgment of this court in the case of Namdeo Mali, it clearly indicates that in the said matter, the plaintiffs had propounded the will of the deceased and the defendant had also propounded another will of the said deceased. In the probate petition filed by the plaintiff, instead of filing separate probate petition, defendant filed counter claim inter alia praying for probate of the will propounded by the defendant. Plaintiffs did not raise any objection in respect of such counter claim before the district court. In the facts of that case, this court held that there was no embargo of whatsoever nature created to raise counter claim in the suit and or proceedings/application filed under the Indian Succession Act. The counter claim for probate based upon another Will as filed by the defendant/respondent in the testamentary suit in the absence of any bar in any of the Act is maintainable. Paragraph 16 and 20 of the said judgment which are relevant for the purpose of this matter read thus :

¶156

“16. After reading the clear provisions of counter-claim, I am also of the view that there is no embargo of whatsoever created to raise counter-claim in the suit and or proceedings/ application filed under the Indian Succession Act, 1925 (for short," the

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Indian Succession Act"). There is nothing to show that the counter-claim as provided under Order 8, Rule 6A is limited to the case involved in the money claims only. The Rules 6A to 6G if read together, no restriction whatsoever, is created to file counter-claim in any suit and or proceedings of any nature, vide Suman Kumar v. St. Thomas School and Hostel and Ors. MANU/PH/0141/1988. In Raman Sukumaran v. Velayudhan Madhavan MANU/KE/0059/1982: AIR1982Ker253 , the Kerala High Court held that in view of Rule 6A any counter-claims, which arise between the parties and which are cognizable by the Court where the suit is pending, falls within the purview of Rule 6A to 6G of the Civil Procedure Code. The object appears to be to reduce pendency of cases so that cause of action and cross-claim similar in nature could be clubbed together and disposed of by a common judgment. The reliance can also be made in this regard on Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala and Ors. MANU/SC/0019/1963: [1964]2SCR567 , wherein though there was no such amended provisions like Order 8, Rule 6A to 6G, the Supreme Court still has recognized and permitted the counter-claim.

¶161

These amended Rules are with the view to make detail provisions regarding such counter-claims.

¶162

The Apex Court in Jag Mohan Chawla (supra) and also in Mahendra Kumar v. State of M.P. MANU/SC/0040/1987: [1987]3SCR155 held that in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable. The cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff.

¶163

As per Rule 6-E, if the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce the judgment against the plaintiff in relation to the counter-claim made against him and or pass another order. As per Rule 6-G, the rules relating to a written statement by a defendant shall apply to the written statement filed in answer to a counter-claim.

¶164

As per the Bombay Amended Rules (Bombay Rules)(Maharashtra Government Gazette dated 31-12-1987) 19, 20 and 21 as noted above, the Court can proceed for want of written statement by the plaintiff to the counter-claim raised by the defendant in the suit. As per Rule 20, if in any case, in which the defendants sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed the counter-claim may nevertheless be proceeded with. Rule 36 of the Bombay rules deals with the provisions with

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regard to the third party in the counter-claim. In totality, therefore, considering the above scheme and the purpose and object of the amendment to Order 8, Rule 6A to 6G including the Bombay Rules 11 to 36 of Civil Procedure Code as referred above, I am of the view that such counter-claim for probate based upon another Will as filed by the defendant/respondent herein in the testamentary suit in absence of any bar in any of the Act is maintainable.”

¶168

In my view, in so far as interim relief is concerned, there is specific bar from granting interim relief which can otherwise be granted under section 269(1) of the Act to the categories of persons otherwise described in 269(2). The Judgment of this court in the case of Namdeo Mali relied upon by the learned counsel is thus of no assistance to the defendant.

¶169

Ms. Sarnaik, learned counsel also placed reliance on the judgment in the case of Shakuntla Gajanan Kulkarni Versus Dr. Hemang Dayashankar Koppikar and Ors., in Misc. Petition No. 59 of 2011 in support of her submission that in the contentious matter, since the provisions of Code of Civil Procedure is applicable, interim relief claimed by the defendant also can be considered by this court. On perusal of the judgment of this court in the case of Shakuntala Gajanan Kulkarnki (supra), it indicates that though caveat was filed by the defendant in the testamentary suit, since the advocate of the caveator was absent, the testamentary court permitted the Prothonotary and Senior Master to proceed with the matter and based on such order, the Prothonotary and Senior Master issued grant in favour of the plaintiff. In the petition filed for revocation of such grant, this court accepted the submissions made by the original respondent that even if caveat is treated as dismissed, the procedure applicable to the suit for disposal has to be followed. The Prothonotary and Senior Master could not have issued probate and court

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could not have passed an order directing the Prothonotary to proceed with the matter even without framing any issue. This court accepted the submissions made by the respondent in that matter that though the caveator or his advocate was absent, the probate could not have been issued without complying with other formalities of the trial described in Code of Civil Procedure. In my view this judgment of this court in the case of Shakuntala Kulkarni (supra) is not at all applicable to the facts of this case. There is no dispute about the proposition that the provisions of Code of Civil Procedure are applicable in so far as the same are not inconsistent with the provisions of the Indian Succession Act.

¶173

In so far as unreported judgment of this court in the case of Nandlal Chabriya (R.D. Dhanuka,J.) delivered on 11^th February, 2014 and in the case of Mahendra Shah dated 12^th August, 2013 (R.D. Dhanuka,J.) are concerned, Ms. Sarnaik learned counsel for the defendant makes an attempt to distinguish these two judgments on the ground that in both these matters, this court has not considered the provisions of section 295 of Indian Succession Act. A perusal of the orders/judgments of this court in the case of Mahendra Shah and Kishor N. Chabriya indicates that this court has followed the judgment of the learned Single Judge in the case of Rupali Mehta (supra) and judgment of the Division Bench in the case of Ramchandra Hande (supra) and has held that the testamentary court while passing the decree does not pass any order regarding the property so as to secure the execution of the decree. The testamentary court does not decide the title in respect of the properties.

¶174

This court has also interpreted rule 403 of the Bombay High Court (Original Side) Rules which provides that upon affidavit in support of

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caveat being filed, the petition would be numbered as suit and petition would be treated as a plaint and affidavit in support be treated as written statement of the caveator. It is provided that the procedure in such suit as nearly as may be according to the procedure applicable to civil suits on the original side of the court. One of the submissions urged before this court was that in view of rule 403 if the proceeding is converted into suit, Order 39 rule 1 and Order 40 rule 1 can be applied by the Testamentary court. In the judgment in the case of Kishor N. Chabria (supra), this court has negatived such submission and has held that the powers of civil court under Order 39 rule 1 and Order 40 rule 1 cannot be read in rule 403 of High Court (Original Side) Rules. Paragraph 5 to 8 of the judgment of this court in the case of Nandlal read thus :

¶178

“5. It is submitted that upon filing of caveat and affidavit in support, testamentary petition is converted into a suit. Upon conversion of the petition into a suit, the petition has to be treated as plaint and affidavit in support of caveat has to be treated as written statement of the caveator. Emphasis is laid on the last three lines of the Rule which provides that the procedure in such suit shall, as nearly as may be, be according to the procedure applicable to civil suits on the Original Side of the Court. Relying upon Rule 403, it is submitted by the learned counsel that this rule would also contemplate the interlocutory proceedings under Order 39 Rule 1 and Order 40 Rule 1 which power can be exercised even by testamentary Court in respect of the properties of the deceased testator. It is submitted that since Rule 403 of the Bombay High Court (O.S.) Rules is not considered by the learned Single Judge and also by the Division Bench in the Judgments referred to aforesaid, both these judgments are clearly distinguishable in the facts of this case.

¶179

A perusal of the Judgment of Division Bench of this Court in case of Ramchandra Hande (supra) indicates that Division Bench has adverted to the Judgment of Division Bench of this Court in case of Thrity Sam Shroff vs. Shiraz Byramji Anklesaria, 2007 (4) MhLJ. 56., by interpreting the provisions of

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Section 295 which provides that in contentious cases, the proceedings before the District Judge shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of civil Procedure, 1908.

¶184

After considering the effect of Section 295, Division Bench has observed that “ all the proceedings shall merely take the form of a suit according to the Code of Civil Procedure and that too as nearly as possible, meaning thereby that though the proceeding is not a suit within the meaning of the said expression under the Code of Civil Procedure, to the extent they are not inconsistent with jurisdiction and function of the probate Court.”

¶185

I am not inclined to accept the submission of Mr Shah learned counsel appearing for the applicant that Rule 403 would provide the powers to the testamentary Court to apply under Order 39 Rule 1 and Order 40 Rule 1 in respect of the properties of the estate in view of Section 269 of Indian Succession Act. Section 269(2) which provides that Section 269(1) shall not apply when the deceased is a Hindu, Muhammadan, Buddist, 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. In view of the interpretation of said provision by the learned Single judge and the Division Bench of this Court, and in view of such specific provisions, in my view powers of civil Court under Order 39 Rule 1 and Order 40 Rule 1 cannot be read in Rule 403 of the High Court (O.S.) Rules. In a testamentary suit, property left behind by the deceased is not the subject matter of the testamentary suit. Testamentary Court while passing a decree does not pass any order regarding property so as to secure the execution of such decree. Indian Succession Act is a self contained Code. A party to testamentary proceeding however, is not precluded from adopting a remedy by filing proceedings before a civil Court for protection of such properties.”

¶186

In my view, Rule 403 of Bombay High Court (O.S.) Rules is in pari-materia with section 295 of the Indian Succession Act, 1925 which has been interpreted by this court and the said judgment applies to the facts of

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this case. In my view, the property is not the subject matter of the testamentary proceedings. The testamentary court has no power to decide the title in respect of the property of the deceased. If the party who falls under the excepted category carved out under section 269(2) of Indian Succession Act seeks protection in respect of such property is not precluded from filing civil suit and invoke provisions under Order 39 rule 1 and Order 40 rule 1 for protection of such properties. This principle would apply irrespective of the fact whether applicant is plaintiff or the defendant.

¶190

In so far as submission of Ms. Sarnaik, learned counsel for the defendant that the defendant is entitled to seek interim relief alleging that Mr. Uddhav Thackeray, plaintiff No. 3 who is a leader of political party of India and enjoys massive power and clout in the state of Maharashtra and is person with high influence upon administrative actions in the state of Maharashtra and in view of plaintiff no. 3 having addressed letter to the Charity Commissioner to the effect that if any party seeks registration of the public charitable trust in the name of the deceased, direct those “proposers” to Matoshree, Kalanagar, Bandra (E), Mumbai for effecting his approval is concerned, in view of this court having taken a view that the testamentary court has no power to grant interim reliefs in respect of the properties, in view of bar under section 269(2) of the Act, I am not inclined to grant any adjournment to the plaintiffs for controverting the allegations made in the additional affidavit. This court need not go into these allegations at this stage in this proceedings and the same are kept open.

¶191

It is made clear that whether defendant is entitled to such reliefs on merits or not, this court has not expressed any views and if such proceedings are filed before a Civil Court, the same can be disposed of on its

¶192

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own merits.

¶194

In my view, notice of motion for interim relief is not maintainable and is accordingly dismissed. There shall be no order as to costs.

¶195

( R.D.DHANUKA, J.)

Anil Dattatray Parab and Ors. v. Jayadev Bal Thackeray

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Anil Dattatray Parab and Ors. v. Jayadev Bal Thackeray

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Deepak N. Jhota and Anr. Vs Vimla N. Jhota and 4 Ors.

Mr Mukesh Vora and 3 Ors. Vs Mr. Kiran Vora and 8 Ors.

I. C. I. C. I. Bank Ltd. Vs the Official Liquidator H. C. Bombay as Liquidator of Pal Peugeot Ltd.

M/S Kotahwala Exports Pvt. Ltd. and Arn Vs Mr Ajay Ramdas Pancholi