2006 (8) TMI 698 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the Notice of Motion seeking interim orders in relation to the property left behind by the deceased.
2. Applicability of the Civil Procedure Code to testamentary suits.
3. Jurisdiction of the testamentary court to make interim orders for property protection.

Issue-Wise Detailed Analysis:

1. Maintainability of the Notice of Motion:
The Plaintiff sought interim orders and the appointment of a receiver for the property left behind by the deceased. The Defendant objected, arguing that in petitions for letters of administration with a Will annexed or probate, the title of the deceased to the property is not the subject matter of the suit. Thus, the court lacks the jurisdiction to make interim orders regarding the property.

2. Applicability of the Civil Procedure Code to Testamentary Suits:
The Plaintiff argued that under Section 268 of the Indian Succession Act, the provisions of the Code of Civil Procedure (CPC) apply to probate and letters of administration proceedings. Therefore, Section 141 of the CPC, which applies to all proceedings under the Code, should allow the court to make interim orders in testamentary suits. The Plaintiff cited several decisions to support this view.

3. Jurisdiction of the Testamentary Court to Make Interim Orders:
The court examined the Indian Succession Act, 1925, specifically Part-IX, which deals with probate and letters of administration. Section 269 of the Act authorizes the District Judge to interfere for property protection until probate is granted. However, this power is not applicable to Hindus, Muslims, Buddhists, Sikhs, Jains, or Indian Christians who died intestate. Since the deceased in this case was Hindu, Section 269 was not applicable.

The court also considered Sections 192 and 193, which allow for summary proceedings to prevent wrongful possession of the deceased's property. These sections are part of Part-VII of the Act and are intended for urgent cases where ordinary civil suits are not feasible. The Supreme Court's interpretation in Uma Devi Nambiar v. T.C. Sidhan clarified that these provisions are interlocutory and summary in nature, meant to protect possession until a regular suit is filed.

The court noted that Section 247 allows for the appointment of an administrator pendente lite, but this does not involve making interim orders regarding the property itself.

The court concluded that the Indian Succession Act does not provide the testamentary court with inherent power to make interim orders for property protection during the pendency of a testamentary suit. The property mentioned in a Will is not the subject matter of the suit; the sole question is the genuineness of the Will. This was supported by the Division Bench of the Patna High Court in Kashi Nath Singh v. Dulhin Gulzari Kuer and affirmed by the Supreme Court in Shanta G.Z. Mehta v. Sarla J. Mehta.

The court dismissed the Notice of Motion, stating that previous interim orders in similar cases do not constitute a precedent as the question of the court's power to make such orders was not raised or decided in those cases. The judgment of the Calcutta High Court in Priyamvada Devi Birla was also found unconvincing as it assumed inherent power without considering the scheme of the Act.

Conclusion:
The court held that the Notice of Motion seeking interim orders for the property left behind by the deceased is not maintainable. The Indian Succession Act does not authorize the testamentary court to make such interim orders, and the property is not the subject matter of the testamentary suit. The operation of the ad-interim order was continued for four weeks to allow the Plaintiff time to seek appropriate relief.