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TMI Blog2021 (12) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... o hold ex facie that fraud was perpetrated by the respondent. It is true that the probate court is not debarred absolutely from adjudicating prima facie on the right, title and interest of the contesting parties for the limited purpose of deciding an application for appointment of administrator pendentelite and/or passing orders of injunction in aid of the final grant in the probate proceeding. However, in the instant case, there is no scope of reconsidering the previous order of a co-ordinate Bench, as modified by the appellate court, at the ad interim stage itself before affidavits are exchanged and the injunction application / application for administrator pendentelite is heard finally on merits, since no change of circumstance in the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so entitled. Learned counsel submits Subhas is altering the shareholding, and thereby control, in respect of at least three companies, the shares of which were part of the assets of the testator and to the profits of which both Subhas and Dheeraj, are entitled at the rate of 45 per cent each, as per the Will dated August 3, 2020. In view of such alteration of shareholding, it is contended, the entire subject-matter of the Will is being attempted to be changed in favour of Subhas, thereby frustrating the final decree (deemed) that would be passed in the probate proceeding. Learned counsel places particular reliance on the judgment of AtulaBalaDasi Vs. Nandita Devi, reported at AIR 1951 Cal 561, where a Division Bench of this Court had held, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok place. Moreover, the shareholders are, at best, entitled to a right to the profit and cannot claim the entire assets of the company as their own property. That apart, the learned Senior Advocate places reliance on the definition of Will as given under Section 2(h) of the Indian Succession Act, as well as Section 247 of the said Act to argue that the indefinite profits which can be earned prospectively by the companies could not have been the subjectmatter of a testamentary disposition at all; as such, the testamentary court s hands are tied insofar as directions regarding such shareholdings are concerned. The learned Senior Advocate for the respondent places reliance on the following judgments in support of the proposition that, in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against a non-party to a probate proceeding, by placing reliance on 2016 (1) SCCC 734 [West Bengal Housing Board Vs. PramilaSanfui And others) and that the heirs of the deceased are all necessary parties to a probate proceedings; reliance in such regard is placed on (2005) 12 SCCC 154 [ManibhaiAmaidas Patel and another vs. DayabhaiAmidas]. Upon hearing learned counsel and going through the materials-onrecord, it is evident that the matter was taken up by a co-ordinate Bench on October 8, 2021, when the learned Single Judge was pleased to grant relief in terms of the prayer (i) of the notice of motion, directing that the petitioner be given a subsistence allowance of Rs.10 lakhs per month until further orders are made on the petition. Libe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner has failed to establish any change of circumstance in the interregnum, between October 8, 2021, when the Single Bench order was passed, and the present. Hence, there is virtually no scope of further altering/modifying the order dated October 8, 2021, as modified by the order of the Appellate Court dated December 3, 2021 at this stage, particularly at the behest of the petitioner. The alterations in the shareholding of the three companies, namely Campbell s Mining Company Private Limited, Digboi Carbon Private Limited, and Bihar Carbons Private Limited, as alleged, even as per the annexures to the injunction application, were effected mostly during the lifetime of the testator and, in a few cases, carry the joint signatures ..... X X X X Extracts X X X X X X X X Extracts X X X X
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