Patna High Court - Orders
Amrendra Dhwaj Singh & Anr vs Prem Kumar Singh on 27 August, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.245 of 2004
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Amrendra Dhwaj Singh & Anr
.... .... Appellant/s
Versus
Prem Kumar Singh & Ors.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ravi Shankar Ganguli, Adv and
Mr.Dharmendra Kr.Sinha,Adv.
For the Respondent No.1 : Mr. Abhay Kumar Singh, Sr.Adv., with
Mr. Rakesh Kr.Samrendra, Adv.
Mr. Sidharth Harsh, Adv.
For Respondent No. 6 to 9: Mr. Vinay Kirti Singh, Adv.
Mr.Abhay Kumar Singh,I Adv.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL ORDER
8 27-08-2012
I.A.No. 4014/12.
Heard the parties.
2. This interlocutory application has been filed on behalf of the appellants praying for grant of injunction restraining the respondent no.1 from alienating the suit land and further to maintain status quo with regard to the same.
3. This appeal has been preferred against the judgment and order dated 04.09.2004 passed by the Learned Additional District Judge V, West Champaran Bettiah in Probate Case No. 09/90(T.S.No.02/98) granting the probate of the will dated 03.12.1986 in favour of the plaintiff-respondent no.1. 2 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012
P2 / 13
4. The genuineness of the will dated 03.12.86 executed by Late Bishun Prakash Narayan Singh for his properties in favour of the Nati(maternal grand son) of his separated brother Late Fateh Bahadur Singh is the primal issue for determination in this appeal.
5. The sole heir and daughter of Late Bishun Prakash Narayan Singh filed her objection in the proceeding for grant of probate to the said will assailing its legality and propriety, and claimed herself to have succeeded to the estate of her deceased father by inheritance. The learned court below overruled her objections and has granted probate to the will by the impugned judgment and order. The appellants are the substituted heirs of the objector(defendant) Kalyani Devi who died during the pendency of the proceeding in the court below.
6. The appellants in the interlocutory application have stated that after the grant of the probate, the plaintiff-respondent no.1 has started alienating and transferring the property of the deceased Bishun Prakash Narayan Singh. It has been alleged that the respondent no.1 during the pendency of the appeal has executed registered lease deeds in favour of the strangers for major portions of the property of the deceased and the lessees, who are powerful men, have been threatening to dispossess the 3 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P3 / 13 appellants from those properties. The photo copies of those lease deeds have been annexed with the interlocutor application. It has been claimed that after the death of Kalyani Devi, the appellants have been in possession over her property which she inherited from her father and the same is the only source of their livelihood as they are basically farmers/agriculturists and they would suffer irreparable loss and injury if the plaintiff- respondent or his transferees are allowed to dispossess them from those properties during the pendency of this appeal.
7. In the counter affidavit by the plaintiff-respondent, besides asserting the genuineness of the will in question and the validity of the right acquired over the properties of the testator after the grant of probate, it has been pointed out that the appellants themselves have alienated part of the property of the testator during the pendency of this appeal and even during the pendency of the present interlocutory application. The photo copy of the sale deed has been annexed. The plaintiff- respondent has further claimed himself to be in continuous possession over the property of the testator after his death and on the basis of these facts the prayer has been made to reject the interlocutory application.
8. Mr. Ganguli , the learned counsel appearing for the 4 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P4 / 13 appellants has questioned the legal pregnability of the impugned judgment and order granting the probate of the will by submitting that the learned court below has overlooked and misinterpreted the material evidence of the defendant- appellants. It has been urged that on the face of it the will in question is unconscionable when the testator had ignored his sole heir and daughter and bequeathed his entire properties to a distant relative. Learned counsel has placed in detail the part of impugned judgment to bolster his submission that the appellants have got a very strong case on merit. Much emphasis was also placed upon the creation of Jamabandi in the name of Kalyani Devi after the death of her father for strengthening the case of her possession over the property of the deceased Bishun Prakash Narayan Singh after his death. It has been lastly submitted that in absence of appropriate restraint order, the respondent no.1 would alienate and dissipate the entire estate of the deceased, and in case of their success in this appeal, the appellants who are successors of the properties of the deceased by inheritance would have to undergo series of litigations to recover the properties from the strangers.
9. Per contra, the learned senior counsel for the respondent no.1 has strenuously submitted that in a proceeding 5 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P5 / 13 for probate or letters of administration no corporeal right over the property is under dispute and it is only the genuineness of the will which is to be investigated and as such no order pertaining to the property should be passed, and the provisions of Order 39 Rule 1 & 2 C.P.C. relating to grant of temporary injunction also cannot be invoked. It has been further canvassed that there is no prima facie case in favour of the appellants once after the grant of probate or letters of administration in favour of the respondent no.1 and as such also the appellants are not entitled to any interim order. It has been propounded that after the declaration of genuineness and validity of the will in question, there should be put no fetters on the right of the legatee to deal with the property of the testator, and that too at the instance of the appellants who themselves have started alienating the properties of the testator during the pendency of this appeal and even this injunction petition. It has been submitted that the power to grant injunction is basically a relief in equity and should not be exercised at the instance of a party whose conduct is not above blemish.
10. Mr. Vinay Kirti Singh, advocate, has appeared on behalf of the respondent nos. 6 to 8 and Mr. Abhay Kumar Singh No.I, advocate, has appeared on behalf of the respondent 6 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P6 / 13 nos. 7 and 9 and both the learned counsel have made their submissions in support of the appellants.
11. In view of the pleadings of the parties and their rival submissions, the basic facts appear to be not in dispute that Bishun Prakash Narayan Singh had a daughter Kalyani Devi whose heirs are the appellants in this appeal. The respondent no.1 who is the maternal grand son of the brother of Bishun Prakash Narayan Singh has propounded the will dated 03.12.86 said to have been executed in his favour by Bishun Prakash Narayan Singh, bequeathing his entire properties to him. The appellants have claimed their title and possession over the property of the deceased Bishun Prakash Narayan Singh on the basis of inheritance whereas the respondent no.1 has claimed his right over the said property on the basis of succession through the will in question. The learned senior counsel for the respondent no.1 is right in his submission that the question of title over the property of the testator is beyond the jurisdiction of a Court in a proceeding for grant of probate or letters of administration to a will, and in fact the major plank of his submission for rejection of the prayer for grant of injunction as prayed is based upon this proposition. But even after accepting this to be the correct position in law, the question that emanates 7 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P7 / 13 as a corollary is the scope of the jurisdiction of the Court in such proceeding to issue appropriate orders including the order of injunction for the protection of estate of the deceased from being alienated, dissipated or frittered away..
12. Adverting to the fascicules of law in this regard in the provision of Indian Succession Act and the Code of Civil Procedure, it appears that it would be undue straining the well settled principle that in a proceeding for probate or letters of administration, the issue of title is not involved, to hold that the Court in such proceeding has no jurisdiction to pass appropriate order for the protection and preservation of the property of the deceased testator till the dispute regarding his will pends. It would be apt here to take notice of the following provisions of Indian Succession Act:
Section 247:- 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 administration 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 8 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P8 / 13 direction.
Section 266. District Judge's powers as to grant of probate and letters of administration- The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court.
Section 268. Proceeding of District Judge's Court in relation to probate and administration- The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908.
13. Conspectus of the aforesaid provisions makes it clear that the Code of Civil Procedure has application to the proceeding in relation to the grant of probate and letters of administration save as otherwise provided in the Indian Succession Act. It is also manifest that in such proceeding, the Court has the power of pendente lite administration of the estate of the deceased testator while determining the validity of his will. It is, thus, reasonably discernible that such Court must be deemed to possess the necessary power to protect the property of the deceased testator from being wasted, damaged or 9 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P9 / 13 dissipated during the pendency of the proceeding. The absence of such jurisdiction cannot be accepted on the basis of the fugacious plea that no corporeal right to property is involved in the suit or proceeding for grant of probate or letters of administration. Even when the provisions of Order 39 Rule 1 and 2 may not be strictly applicable in such cases, the supplemental provision in Section 94 and the inherent powers under Section 151 of the C.P.C. as well as Order 39 Rule 7 C.P.C. are there to invest such Court with necessary jurisdiction to pass an interim order for the protection of the estate of the deceased testator. Such jurisdiction of a probate Court has also been recognized by a Bench decision in the case of Atul Bala Dasi Vs. Nirupma Devi AIR 1951 Calcutta 561 where their Lordships have observed as follows:-
"...We have noticed already the provisions contained in Ss. 247 & 269, Succession Act. Even when the exercise of the powers given to the probate Court under S. 247 Succession Act cannot obviate the difficulties or protect the properties, the powers of that Court are wide enough to issue temporary orders restraining other persons for interfering with the properties which are the subject matter of testamentary disposition.................................................................. .....................It is, therefore, open to the probate Court not 10 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P10 / 13 only to appoint an administrator pendente lite, but also to issue an order of injunction temporary in character pending the appointment of administrator pendente lite. If such powers are exercised in probate cases by a probate Court, there is no reasonable chance of any property being dissipated, pending the actual grant of a probate or the appointment of an administration..."
14. Delving into the issue of jurisdiction of a Court to pass order of temporary injunction when the provisions of Order 39 Rule 1 and 2 C.P.C. are not applicable, the Apex Court in the case of Manohar lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 has laid down as follows:-
"...Thus there being no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39, C.P.C., if the Court is of the opinion that the interest of justice requires the issue of such interim injunction..."
15. The submission of the learned senior counsel for the appellant that in a proceeding for grant of probate or letters of administration, no right to property is under dispute and therefore no order can be passed impinging on such right, has 11 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P11 / 13 also its complete answer in the decision in the case of Smt. Ragni Bai @ Muna Bai Vs. Smt. Kamla Devi AIR 1996 SC 1946 where the apex court has observed as follows:-
"... Merely because there is no dispute as regards the corporeal right to the property, it does not necessarily follow that he is not entitled to avail the remedy under Order 39 Rules 1 & 2 C.P.C. Even otherwise also, it is settled law that under Section 151 C.P.C., the Court has got inherent power to protect the rights of the parties pending the suit..."
16. Here the appellants are claiming their right over the property of Late Bishun Prakash Narayan Singh on the basis of their inheritance. It is manifest that in absence of the will in question the estate of the deceased Bishun Prakash Narayan Singh could have been legally claimed by the appellants. The claim of the respondent no.1 is on the basis of the will in question said to have been executed by the late Bishun Prakash Narayan Singh bequeathing his entire property to him. The probate of the will in question has been granted by the judgment and order which is under assail in this appeal. It is not in dispute that the property of the deceased Bishun Prakash Narayan Singh also consists of about 25 acres of land of Village-Baligaon Anchal- Bagha, District-West Champaran which is apparent from photo copies of the partition deed as 12 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P12 / 13 well as from the order of mutation, as annexed with the interlocutory application and the counter affidavit.
17. From the statements made in the interlocutory application as well as the counter affidavit and its reply, it is pellucid that both the appellants and respondent no.1 have started alienating, encumbering or creating 3rd party interest in the property left behind by the deceased testator Bishun Prakash Narayan Singh during the pendency of this appeal. From the rival stands of the parties, during the course of hearing of this interlocutory application, it is reflected that by the time this appeal would be disposed of finally, the estate of the deceased might not be in existence.
18. From the aforementioned pronouncements of law, it is discernible that a probate Court has the jurisdiction to pass necessary orders for the protection of the subject mater of the testamentary disposition and it cannot be unresponsive to the imminent threat of material change in the existing condition of the property under the will in question.
19. For these premised reasons, it appears just and proper, in order to protect the estate of the deceased testator from being destroyed, dissipated or frittered away, that both the appellants 13 Patna High Court FA No.245 of 2004 (8) dt.27-08-2012 P13 / 13 and respondents be directed to maintain status quo as existing today with regard to the property of the deceased testator Late Bishun Prakash Narayan Singh during the pendency of this appeal. Accordingly it is so ordered. The interlocutory application is, thus disposed of.
(V. Nath, J) Nitesh/-