Calcutta High Court
For The vs Chamatkarini Debi Air 1915 Cal 565 on 16 April, 2026
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble Justice Ravi Krishan Kapur
IA NO: GA/1/2021, GA/3/2021, GA/6/2022
PLA/88/2021
IN THE GOODS OF:
ANIRUDH CHAMRIA (DEC.)
For the petitioner : Mr. Ratnanko Banerjee, Senior Advocate
Mr. Sarvapriya Mukherjee, Advocate
Mr. Shoham Sanyal, Advocate
For Umesh Chamria : Mr. Jayanta Kumar Mitra, Senior Advocate
Mr. Aniruddha Mitra, Senior Advocate
Mr. Shilon Sengupta, Advocate
For the Caveator Neeraj Khanna : Mr. Utpal Kr. Bose, Sr. Advocate
Mr. Rishad Medioa, Advocate
Mr. Pushan Majumdar, Advocate
Mr. Saptarshi Biswas, Advocate
Heard on : 24.03.2026
Judgment on : 16.04.2026
Ravi Krishan Kapur, J.:
1. This probate proceeding has been filed by the Executor of the Last Will and Testament of Late Anirudh Chamria who left behind a Will dated 14 December 2019. The petitioner propounding the Will is the cousin of the deceased. The deceased, a Hindu, was a resident of Kolkata who expired on 11 January, 2020. The Estate of the deceased includes a valuable immovable property at Mussoorie and a flat at Salt Lake, Kolkata. Significantly, both these properties originally belonged to the great- grandmother, one Gomti Sethani (also the great-grandmother of the petitioner) and had been inherited by the deceased.
2
2. There is also a prior Will dated 14 March, 2018 claimed by the Caveator Neeraj Khanna (a friend of the deceased). It has been contended by Neeraj Khanna that no probate of this Will is required to be obtained in view of section 57 read with section 213 of the Indian Succession Act, 1925 (the Act).
3. Then again, there is a third possibility of what were to happen in case both Wills fail and the Estate of the deceased requires to be distributed as if the deceased had died intestate to the remaining seven heirs (including the petitioner). In this context, applications have been filed by Umesh Chamria claiming to be legal heir of the deceased in terms of section 8 of the Hindu Succession Act, 1956 which are also pending.
4. Neeraj Khanna, under the Will dated 14 March 2018 as Executor and beneficiary has been selling, dealing, transferring and alienating portions of the immoveable property at Mussoorie, Uttarakhand (Radha Bhawan Estate).
5. GA 1 of 2021 and GA 3 of 2021 have been filed seeking interim protective reliefs during the pendency of the probate proceeding. GA 6 of 2022 is filed by the Neeraj Khanna for vacating of the interim order dated 1 July 2021 and for stay of the probate proceedings.
6. For convenience, the reliefs sought for in the above applications are set out below:-
GA 1/2021
Let special citation be issued to Mr. Neeraj Khanna s/o Rajendra Kumar Khanna permanent resident of Flat No. Q-6, Cluster-XI, Purvanchal Housing Estate, Salt Lake, Kolkata- 700097 by speed post with acknowledgement Due returnable within two weeks from date of service and affixation.
a. Order of injunction be passed restraining Mr. Neeraj Khanna and his men, agents and associates from any manner of selling and/or alienating and/or dealing with and/or disposing of and/or encumbering or causing to sell/deal/dispose of/encumber the Mussourie and Salt Lake Properties of the deceased as disclosed in the Affidavit of Assets;3
b. Directions to be passed upon Neeraj Khanna to disclose all sale deeds entered into and executed by him and the sale proceeds obtained in respect of sale of assets and properties of the deceased as disclosed in the Affidavit of Assets; c. Further order and/or order(s) as this Hon'ble Court may deem fit and proper.
GA. 3 of 2021 a. Direction upon Neeraj Khanna to forthwith deposit a sum of Rs.6,18,37,423/- with the Registrar, Original Side, High Court at Calcutta. b. Alternatively an order of injunction be passed restraining Neeraj Khanna and/or his men, agents, servants and assigns from dealing with and/or disposing of and/or cause to deal with and/or dispose of any monies lying in the bank accounts without leaving apart a sum of Rs. 6,18,37,423/- c. A fit and proper person be appointed as Special Officer/Receiver and the Special Officer/Receiver so appointed be directed to do the following:-
(I) Forthwith takeover actual physical possession of the entire estate of Anirudh Chamria, (i) Property admeasuring about 117 acres at Radha Bhawan Estate, Mussoorie, District- Dehradun, Pin Code 248179 including the portions of the Mussoorie Property which have been transferred under the 23 deeds mentioned in annexure-I; and (ii) Flat no. CA 8/1 on the ground floor of a building at Plot no. CA 8/1, Block CA, Sector-I, Salt Lake, Kolkata-700064.
(II) Cause an inventory of all the assets of Anirudh Chamria including his bank accounts and other movable assets and to file a report before this Hon'ble Court.
d. An order directing the respondent be passed to forthwith disclose and produce his bank statements for the period from 31st December, 2019(date of illness and hospitalization of Anirudh Chamria) till now. e. An order directing the respondent to forthwith disclose particulars of all properties sold/transferred on the basis of the Will dated March 14, 2018 and also to disclose all conveyance/ gift and/or lease deeds executed on the basis of the Will dated March 14, 2018 and also all other movable and immovable assets including bank fixed deposits etc of Late Anirudh Chamria;
f. Ad-interim orders in terms of prayers above;
g. Costs of and incidental to this application be borne by the respondent Neeraj Khanna;
h. Such further or other order or orders be made and/or direction or directions be given as this Hon'ble Court may deem fit and proper.
GA. 6 of 2022 a. The ad-interim order dated 1st July, 2021 passed by this Hon'ble Court be recalled and/or vacated;
b. Stay of all further proceedings in PLA No. 88 of 2021 till the disposal of the instant application;
c. Ad-interim orders in terms of prayers above;
d. Pass such other or further order or orders and/or give direction or directions as this Hon'ble Court may deem fit and proper.
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7. On behalf of the petitioner, it is submitted that there is a serious risk of waste, alienation and dissipation of the Estate at the hands of Neeraj Khanna. The incontrovertible facts reveal that Neeraj Khanna has with undue haste been dealing with the Estate without having obtained any Probate. The dealings by Neeraj Khanna are suspicious, unlawful and lack bona fides. There are several instances of misconduct by Neeraj Khanna in dealing with the Mussoorie property and claiming ownership rights in respect thereof. There is also no embargo which prevents this Court from granting reliefs for immediate protection and preservation of the Estate. In support of such contentions, the petitioner relies on the decisions in Nirod Barani Debi -vs- Chamatkarini Debi AIR 1915 Cal 565, Atula Bala Dasi and Others -vs- Nirupama Devi and Another AIR 1951 Cal 561, Priyamvada Devi Birla Rajendra Singh Lodha -vs- Laxmi Devi Newar & Anr. 2005 SCC Online Cal 1723, Universal Cables Limited -vs- Arvind Kumar Newar and Ors. Unreported decision dated 21 April, 2022 in APO/89/2010 before the High Court at Calcutta, Heena D. Manek -vs- Mahendra T. Shah and Others 2021 SCC Online Bom 9813.
8. On behalf of Neeraj Khanna, it is submitted that both applications i.e. GA 1 of 2021 and GA 3 of 2021 are liable to be dismissed on the ground of suppression of material facts and acquiescence. The petitioner has suppressed that a suit had been filed by the petitioner before the District Court at Barasat being T.S. 261 of 2021 where the petitioner had claimed rights both in respect of the Mussoorie and Salt Lake properties. In addition, the petitioner is estopped by acquiescence from seeking any relief in view of the fact that he had knowledge of the registered Will dated 14 March 2018 in favour of Neeraj Khanna as far back as in February 2020 and had not contemporaneously taken any steps. In any event, in view of 5 the embargo under section 269 (2) of the Act, there is an express bar which prevents the Probate Court in cases of deceased Hindus and hence no injunction can be granted in these proceedings. There are no inherent powers which can be invoked to grant reliefs in contravention of the express provisions under section 269 (2) of the Act. In any event, probate of the Will dated 14 December 2019 which has been sought for in this proceeding is surrounded by grave and suspicious circumstances. The Affidavit of Assets which has also been relied on by the petitioner is also incorrect. As a result, the petitioner is estopped from claiming any right to the Estate of the deceased. In support of such contentions, reliance is placed on Morgan Stanley Mutual Fund vs. Kartick Das (1994) 4 SCC 225, Kirloskar Proprietary Ltd. and Ors. vs. Kirloskar Dimensions Pvt. Ltd. and Ors. (1999) 96 Comp Cas 726, Seema Arshad Zaheer v. Municipal Corporation of Greater Bombay, (2006) 5 SCC 282, Ramchandra Ganpatrao Hande v. Vithalrao Hande AIR 2011 Bom 136, Rupali Mehta Tina Narinder Sain Mehta AIR 2007 Bom 62, Ram Prakash Aggarwal v. Gopi Krishan, (2013) 11 SCC 296, Pasupatinath Das (Dead) vs. Chanchal Kumar Das (2018) 18 SCC 547, Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300, Kavita Kanwar v. Pamela Mehta AIR 2020 SC 2614, H. Venkatachala Iyengar v. B.N. Thimmajamma 1958 SCC Online SC 31, Kashi Math Samsthan and Anr. v. Shrimad Sudhindra Tirtha Swamy and Anr. (2010) 1 SCC 689, Rupinder Singh Anand v. Smt. Gajinder Pal Kaur Anand ILR [2016] MP 1685, Clarence Pais v. Union of India, (2001) 4 SCC 325 and Ravinder Nath Agarwal v. Yoginder Nath Agarwal AIR 2021 SC 3156.
9. It is an admitted position that Neeraj Khanna, on the basis of an unprobated prior Will dated 14th March, 2018, has between 23rd October 2020 to 6th July, 2021, sold, leased, gifted and dealt with a portion of the 6 the immovable property at Mussoorie. The facts reveal that there are 23 different deeds (including sale, lease and gift deeds) which Neeraj Khanna have been executed to his close associates and third parties which also includes his wife. The apparent transaction value from such dealings of the Estate is approximately Rs 6.18 crores. The details of such dealings are more fully enumerated hereinbelow:
Sl Date of Deed Area Transaction Payment Details Updated Buyer no. registry type (Square value (Rs.) from Neeraj ICICI a/c.
meter) 003401512510
23.10.20
1 SALE 254.27 19,07,025/- 23.10.2020 Sri KUMAR GAURAV
20
31.10.20
2 SALE 191.10 12,42,150/- 31.10.2020 Smt. BEENA DEVI
20
10.00 Lac.-10.11.2020
31.10.20 10.00 Lac.-11.12.2020
3 SALE 1181.95 89,33,448/- Sri. DHANPAL RAWAT
20 10.00 Lac.-08.01.2021
15.00 Lac.-10.02.2021
5.12.202
4 SALE 34.8 2,27,000/- 05.12.2020 Smt. KUNGRI DEVI
0
5.12.202
5 SALE 60.4 3,93,000/- 05.12.2020 Smt. KANTA
0
5.12.202
6 SALE 227.5 14,79,000/- 07.12.2020 Smt. VINITA MAITHANI
0
16.12.20 7.00 Lac - 17.12.2020
7 SALE 138.94 9,49,000/- Smt. REKHA RANA
20 2.50 Lac-31.03.2021
16.12.20 5.00 Lac- 17.12.2020
8 SALE 126.8 8,66,000/- Sri. KAMAL SINGH
20 3.66 Lac-04.01.2021
28.01.20 1.66 Lac - 29.01.2021 Sri. AKBAR SINGH
9 SALE 97.5 6,66,000/- CHAUHAN
21 5.00 Lac-24.03.2021
28.01.20 3.28 Lac -27.01.2021
10 SALE 127.74 8,72,000/- Sri. PANKAJ KAPOOR
21 5.44 Lac-27.01.2021
3.00 Lac - 30.01.2021
30.1.202
11 SALE 227.6 14,80,000/- 10.00 Lac-21.06.2021 Smt. PUJA BHANDARI
1
1.80 Lac - 21.6.2021
20.2.202
12 SALE 51.1 3,33,000/- 16.04.2021 Sri. MUKHSH KUMAR
1
20.03.20
13 SALE 155.5 10,62,000/- 15.06.2021 Smt. ANITA
21
19.06.20
14 SALE 179.5 12,26,000/- No Credit in ICICI Smt. SOORJA DEVI
21
Smt. NAMITA KHANNA
24.06.202
15 GIFT 2670.82 2,17,93,000/- GIFT (wife of Shri Neeraj
1 Khanna)
24.06.20 LEAS
16 1500 1000/- 50,000/- Adv Sri. DHANPAL RAWAT
21 E
24.06.20 LEAS 50,000/- Adv
17 1500 72,000/- Sri. SHUBHA SEN ROY
21 E
26.06.20 Sri. KHUSHAL SINGH
18 SALE 175.7 11,95,000/- No Credit in ICICI
21
29.06.20
19 SALE 396 22,18,000/- PDC Smt. EKTA NAGPAL
21
29.06.20
20 SALE 396 22,18,000/- PDC Smt. CHITRA KAPOOR
21
05.07.20
21 SALE 261.38 17,00,000/- PDC Sri. SHUBHA SEN ROY
21
MUSSOORIE ECO PARK
LLP incorporated on
06.07.20
22 SALE 1280 71,70,000/- PDC 29.04.2021. Partner -
21 DHANPAL RAWAT &
SHUBHA SEN ROY
06.07.20 Sri. KESHAR DAS
23 GIFT 680 38,08,000/- GIFT LUTHRA (91 YEARS OLD)
21
TOTAL 11,914.6 Rs.
0 6,18,10,623/-
SQM Total sale proceeds ascertained as on 06.7.2021
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10. The genuineness and veracity of all the above transactions may ultimately have to be further examined in independent and separate proceedings which would require fuller investigation whether civil or criminal. The calculated risk by Neeraj Khanna in not obtaining a probate notwithstanding the fact that part of the Estate is a property situated in West Bengal and also now that the Will dated 14 March 2018 is being disputed are both factors in weighing the equities. To this extent, the decision in Clarence Pais & Ors vs Union Of India (Supra) is factually distinguishable since in that decision the properties did not fall within the ambit of both section 57 (a) and (b) of the Act. Similarly, the decision in Rupinder Singh vs. Smt. Gajinder Singh Pal Kaur (Supra) dealt with a partition suit where the issue raised was as to the admissibility of an unprobated Will and is inapplicable to this case.
11. Upon the filing of GA 1 of 2021, the petitioner had obtained an order of injunction dated 1 July, 2021 passed by a Co-ordinate Bench whereby Neeraj Khanna was restrained "from selling or dealing with or alienating the Mussoorie property and the Salt Lake properties of the deceased".
Notwithstanding such order of restraint, Neeraj Khanna continued to sell, transfer and deal with a portion of the Mussoorie property even subsequent to 1 July, 2021. In this background, the petitioner was compelled to file a second interlocutory application being GA/3/2021 for diverse reliefs including the appointment of a Special Officer/Receiver, to take actual physical possession of the Estate of the deceased and for consequential directions. Upon Neeraj Khanna failing to deposit the sale proceeds of Rs.6.18 crores received as consideration from the dealings with the Estate, by an ad interim order dated 16th February, 2021, a Coordinate Bench had also directed Neeraj Khanna to deposit with the Registrar, Original Side the 8 amounts received from such sale. Initially, Neeraj Khanna deposited only Rs.1 lakh which culminated in the filing of a contempt petition being CC/11/2023 wherein the Court found Neeraj Khanna to be prima facie guilty of contumacious violation of the order and of suppression. Subsequently, Neeraj Khanna deposited a sum of Rs. 88,70,000/- with the Registrar, Original Side which is still a minuscule amount of the entirety of the sum of Rs. 6.18 crores earned from the Estate. The bald allegation that the money had been spent towards payment of debts and medical expenses of the deceased is unsubstantiated and bereft of any particulars. There are other complaints against Neeraj Khanna, which have been raised by the petitioner. In asserting ownership over the Mussoorie property, Neeraj Khanna has affixed his name in the said property pretending to be absolute owner. In addition to the above, Neeraj Khanna has also sought to substitute himself in place and stead of the deceased in proceedings before the Rent Control Authorities (RCA/21/2018) filed by a tenant of the Mussoorie property, one Dig Vijay Mann, pending before the District Judge, Dehradun. Neeraj Khanna has also failed to disclose particulars of transfers made by him despite the order dated 24 August 2021. The bank accounts of Neeraj Khanna on and from 31 March to December 2019 reflect that sums received from the Estate have also not been disclosed. The most glaring feature of the transactions enumerated above which has been assailed is the gift executed by Neeraj Khanna in favour of his wife Smt. Namita Khanna. The conduct of Neeraj Khanna in dealing with the Mussoorie property which is of considerable magnitude makes out a more than sufficient prima facie case for grant of protective reliefs. Why the frantic hurry? All these facts raise more than a lurking doubt as to the bona fides and conduct of Neeraj Khanna.
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12. No Executor can be permitted to have an unfettered, unsupervised and absolute discretion when acting in the capacity as an Executor. Centuries ago Lord Kenyon had observed "Let the executors do their duty and let their authority cease when injustice begins." (Watpins vs. Cheek, 25 E.R. 181). There is always a fiduciary duty owed by an Executor. The actions of an Executor must be bonafide and in the interests of the Estate. This involves a degree of honesty and good faith. It is also well settled that no one can profit from a fiduciary position. The absolute nature of the duty which an Executor has to perform does not provide for any equitable allowance. The conduct of Neeraj Khanna suggests that there is a serious risk of the Estate being wasted, alienated and dissipated. The hot haste with which Neeraj Khanna has transferred, dealt with and created third party rights would ultimately make the entire exercise of the Probate Court fruitless and render the same nugatory. Prima facie, it is the fiduciary duty of the Executor and the breach of trust which has been violated by Neeraj Khanna. No disposition which is founded on fraud or a transaction amounting to breach of trust deserves to be protected. All these issues would require fuller examination in a separate and independent proceeding. Then again, it is a matter of policy to protect third parties who might be innocently trapped on the basis of the acts of Neeraj Khanna whose right is yet to be finally determined.
13. For convenience, the relevant provisions of law necessary for the adjudication of the present applications are set out below:
57. Application of certain provisions of Part to a class of wills made by Hindus, etc. -The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply--
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local 10 limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):] Provided that marriage shall not revoke any such will or codicil.
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 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.
266. District Judge's powers as to grant of probate and 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.
268. Proceedings 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.
269. When and how District Judge to interfere for protection of property.-(1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interferefor the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property. (2) This section shall not apply when the deceased is a 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.
295. 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. 11
14. In this context, clause 34 of the Letters Patent, 1865 is as follows:
"34. Testamentary and intestate jurisdiction.- And we do further ordain that the said High Court of Judicature at Fort William in Bengal shall have the like power and authority as that which may now be exercised by the said Supreme Court, whether within or without the Bengal Division of the Presidency of Fort William, in relation to the granting of probates of last wills and testaments, and letters of administration of the goods, chattels, credits, and all other effects whatsoever, of persons dying intestate, whether within or without the said Bengal Division Matrimonial Jurisdiction."
15. Chapter XXXV Rule 28 of the Original Side Rules also provides as follows:
28. Procedure on affidavit being filed. - Upon the affidavit in support of the caveat being filed (Notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of a Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code. (Forms Nos. 14 and 15).
16. In terms of section 269 (1) of the Act, powers have been granted to the Probate Court to grant limited orders for protection of the property from any risk, loss or damage. However, the embargo under section 269 (2) makes it abundantly clear that the same would not apply when the deceased is a Hindu. To this extent, section 269 (2) of the Act precludes exercise of powers under section 269 (1) in case of one of the excepted categories.
17. In Nirod Barani Debi -versus- Chamatkarini Debi (Supra), it has been held that the Probate Court is not incompetent to grant a temporary injunction.
18. In Atula Bala Dasi & Ors. Vs. Nirupama Devi & Anr. (Supra) it has been held as follows:
7. We may in this connection consider the powers & the jurisdiction of a probate court for safeguarding the interest of all concerned, & particularly to protect the properties which are the subject matter of the testamentary disposition. We have noticed already the provisions 12 contained in Sections 247 & 269 of the Succession Act. Even where the exercise of the powers given to the probate court under Section 247 of the 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 from interfering with the properties which are the subject-matter of testamentary disposition. As indicated in NirodBarani Debi v. Chamatkarini Debi', 19 C.W.N. 205 though for certain purpose, a probate proceeding is not a suit, in which there is a property in dispute, as contemplated under O. XXXIX, R. 1 of the CPC, the only question in controversy being as to who is to represent the estate of a deceased person, & there being no question of title involved in those proceedings, the court of probate is not thereby wholly incompetent to grant a temporary injunction even in extreme cases; such order of injunction is to be issued only in aid of & in furtherance of the purpose for which a grant is made by a probate court. It is, therefore, open to the probate court not only to appoint an administrator pendente lite, but also to issue an order of injunction, temporary in character, pending the appointment of an 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 administrator. As observed in 'Nirodbarani v.
Chamatkarini (supra)' "In cases where it is brought to the notice of the probate court that a party in possession is about to deal with the movable properties unless injunction is granted, appointment even of an administrator pendente lite may become fruitless. The Court under such circumstances, has ample authority, either under statutory powers or in the exercise of its inherent jurisdiction, to make a temporary order, so as not to defeat the ultimate order which the court is competent to make."
19. In Priyamvada Devi Birla, Rajendra Singh Lodha vs. Laxmi Devi Newar & Anr. (Supra) it has also been held as follows:
"36. The Probate Court, apart from the provision of the said Act, has inherent power to pass suitable interim order for protection and preservation of the properties, as so long the probate proceeding remains pending the properties really remains in the hands of the Court. It is true as it appears from the judicial pronouncement cited by the learned Counsels at the bar in order to pass any interim order relating to the administration of the estate, case of necessity has to be established. In my view, the case of necessity is not only looked from the statement and averment of the petition above but also from the mere fact of enormity of the estate and the nature of the disposition made by the testatrix. From the provision of the Will the Court itself may feel necessity in order to protect and preserve the estate for passing interim order. It is not the feeling of the parties to the proceeding matters, what matters, is Court's sense of insecurity of the estate of deceased. From the affidavit of assets furnished by the propounder/Lodha it appears properties are of different character and nature namely majority shareholding of core companies of the M.P. Birla Group, co-ownership in the immovable property. Apart from the immovable properties other properties are not very specific because the shares 13 themselves cannot be termed to be a property but the value represented by these shares is in real sense the property. This value is liable to be fluctuated depending upon the stock exchange market if the shares are quoted but in case of unquoted ones it depends upon the profitability and viability of the company concerned. Necessity of passing interlocutory order regulating management and control in relation to the fixed assets, real properties, must be founded on a stronger ground and as the ascertained properties with their ascertained income can easily be managed and controlled and even the properties are left at the hands of the executors for it is unlikely the same can be wasted or damaged. But in case of the property value of which is volatile in nature necessity may arise and the supervision and vigilance of the Court, may be called for its protection and preservation. This necessity may be felt in a case where there has been serious challenge against the Will in the probate proceeding and further and in particular where the executor himself is beneficiary. Human mind is very flexible in nature and in any moment for his own interest executor/sole legatee can change his mind forgetting his obligation to the estate vis-a-vis the Court, particularly if though occurs in his mind that probate is unlikely to be granted, it is not impossible for him to destroy, misappropriate or dissipate for his own interest. The Probate Court cannot afford to take even remote or possible risk and cannot wait till the grant of the probate. But balance between convenience and inconvenience is to be weighed in the interest of the estate particularly where a vast portion whereof concerns with running companies and business and it has significantly contributory role to the nation's economy. In the petition, I do not find any allegation of mismanagement, destruction and devastation of the estate only an allegation has been made that a jute mill is sought to be closed and the same is sought to he shifted. Explanation has been given by Lodha in his separate application stating that for economic viability of the above jute mill the said decision was taken to shift the jute mill at a different place as the existing site does not have any scope for expansion. Unless it is expanded the viability of the company cannot be maintained, however, the workmen concerned did not understand this root problem, so they became agitated and company had not option but to suspend the business. So, I think, keeping in view the interest of the group of companies on the one hand and to safeguard the interest of the estate of the deceased lady on the other hand slightly regulatory measure is to be taken. It is suggested by Mr. S.B. Mukherjee, Mr. S. Pal and S.P. Sarkar that status quo as regards composition of Board of Directors as on today shall be maintained. I think, if this restrain order is passed the Board of Directors cannot function independently, consequently the company cannot be run freely. If any of the Board of Directors commits any misconduct or incur any disqualification he cannot be legitimately removed from the Board. Under these circumstances this restrain order is not passed considering the situation in the share market, which is very volatile in nature. This form of suggestion is not accepted by the Court. However, it is made clear in the event any step is taken for removal of any of the Directors only prior seven days notice shall be served upon the defendants. I direct the propounder by his controlling shareholding shall not move any resolution nor support any resolution aiming to sell, incumber any assets of the M.P. Birla group of companies nor 14 closure thereof, without express leave of the Court. The propounder shall also, maintain status quo in relation to the other properties."
20. In Universal Cables Limited -versus- Arvind Kumar Newar and Ors (Supra), it has been held as follows:
"106. Issue 1. ii) - Third party injunctions can be granted in exceptional cases by the Probate Court, for the limited purpose of protecting the Estate. However, the internal affairs of third party, companies cannot, under normal circumstances, be interdicted by a Probate Court.
107. This sub issue relates to third party injunction which can ben further sub-divided and the power of the court to grant injunction is also required to be considered. In Nirod Barant Debi Versus Chamatkarini Debi 159, the Hon'ble Division Bench held that it is essential for application of Order 39 Rule 1 CPC that the property dispute in the suit is in danger of being wasted, damaged or alienated by a party of wrongfully suit in execution of a decree. Consequently, the application for injunction must satisfy the court that the proceedings is a suit in which there is property in dispute and the property is in danger of being wasted, damaged or alienated. It was further held that the question, consequently, arises whether the proceedings for the probate of a will or for letters of administration may rightly be held to be a suit in which the property is in dispute. In the opinion of the Court, the answer was in the negative. After referring to several other decisions, it was held that the only question in controversy in a proceeding in a probate court is that of representation of the estate of the deceased and no question of title thereto, i.e., the title of deceased or the conflict in title alleged by the parties to the probate proceedings can be investigated by the court. Further the court held that they do not lay down the proposition that the court is not competent, because it is a probate court to grant injunction in any circumstances. It was held that the proper procedure to follow in cases of this description is for the aggrieved party to apply to the court for the appointment of an administrator pendente lite (APL) under Section 34 (present Section 247). It was further held that by virtue of the provision by which the administrator pendente lite is appointed, they take charge of the entire estate of the deceased. lt was further held that when it is brought to the notice of the court that a party in possession is about to deal with the movable properties; unless an injunction is granted, the appointment even of an administrator pendente lite may become fruitless, under such circumstances, the court has ample authority either under the statutory powers or in the exercise of its inherent jurisdiction to make a temporary order so as not to defeat the ultimately order which the court is competent to make. In Atula Bala Dasi and Ors. -Versus- Nirupama Devi and Anr. 160, it was held that it is open to the probate court not only to appoint an administrator pendente lite (APL) But also to issue an order of injunction, temporary in character, pending the appoint of administrator pendente lite and if such power are exercised in probate cases by the probate court, there is no 15 reasonable chance, of any property being dissipated pending the actual grant of probate or the appointment of an administrator."
21. The above decisions make it clear that there is considerable authority for the Probate Court exercising inherent powers to pass suitable orders for protection and preservation of the Estate. The underlying logic being that the Probate Court is bound to preserve the assets of the Estate so that the same can be finally distributed. If the Estate is frittered away, what is left to Assent in case probate is ultimately granted? It is also apparent from the stand of the different parties that the instant testamentary proceedings have for all purposes assumed the form of a regular suit wherein the petitioner would be the plaintiff and the caveator, the defendant. In this background, section 295 of the Act is also triggered where the Court would be entitled to exercise all powers under the Code of Civil Procedure 1908. The ambit of the words "all matters connected therewith" includes the powers to grant interim orders which is a necessary adjunct of the power of a Civil Court.
22. To this extent, the decision in Ramchandra Ganpata Rao Handey (Supra) is distinguishable and inapposite. In the said decision, though reference was made to Atula Bala Dasi (Supra) and the proposition of law enumerated therein was accepted, the same was sought to be distinguished on the ground that such powers can only be exercised pending appointment of an Administrator pendente lite. Notably, a subsequent Division Bench of the High Court at Bombay in Manek Dara Sukhadwalla -vs.- Shernaz Faroukh Lawyer (Supra) has held that the Probate Court while exercising testamentary jurisdiction retains its inherent and plenary powers and can also pass orders directing filing of a criminal complaint. (Para 37). 16
23. Regardless of the question of whether or not the Probate Court has inherent powers, it is clear from section 247 of the Act, the remedy for appointment of an Administrator pendente lite is expressly provided for where the grounds for such protective reliefs are made out.
24. It is an admitted fact that there are counter cases and uncertainties surrounding the question of the genuineness and the validity of the rival Wills which are yet to be adjudicated upon. The presence or non-presence of suspicious circumstances are all triable issues which would also be ultimately adjudicated upon at the final hearing. During the interregnum, any risk to the Estate of the deceased would necessarily justify protective reliefs.
25. It is the facts of this case, at this prima facie stage which manifests that the Estate is in need of immediate and dire administration. There is a real and serious risk that the Estate would further be alienated, dissipated and dealt with during the pendency of these proceedings and by the time the question of genuineness of the Will or rival claims are actually decided. It is also true that any question of title i.e. title of the deceased or of conflicting titles cannot be investigated into by the Probate Court. Undoubtedly, the Probate Court is ultimately concerned with the question as to whether the Will has been duly executed and attested in accordance with law and whether at the time of such execution the testator was of a sound disposing mind. Nevertheless, the Estate cannot be dissipated in the meantime.
26. There is also no merit in the contention of delay or acquiescence raised by the Caveator. In this context, the decisions in Morgan Stanley Mutual Fund vs. Kartick Das (Supra), Kirloskar Proprietary Ltd. and Ors. vs. Kirloskar Dimensions Pvt. Ltd. and Ors. (Supra) are factually distinguishable and inapposite. Similarly, the point of suppression insofar as the Title Suit 17 being T.S. No.261 of 2021 filed in the District Court at Barasat is concerned is also without basis. A party may sue in dual capacities. The cause of action in the Barasat suit pertains to the claim of the petitioner as inheritance from Gomti Sethani. Both causes of action are distinct and separate. In this context, the decisions in Dalip Singh -vs.- State of Uttar Pradesh (Supra) and Indian Bank -vs.- Satyam Fibres (India) Private Limited (Supra) are distinguishable. In both these decisions, the Hon'ble Supreme Court was compelled to invoke inherent powers in view of the gross and blatant fraud which had been practised on Court.
27. In the above circumstances, to preserve equities and ensure that the Probate Court is not presented with a fait accompli with third party rights, the Estate must be protected and cannot be allowed to be dissipated. The petitioner has been able to make out a strong prima facie case on merits. The balance of convenience and irreparable injury is also in favour of orders being passed. There is a serious threat to the Estate of the deceased in the hands of Neeraj Khanna who prima facie has acted in a manner to put the Estate at risk. Insofar as the prayer for a Special Officer is concerned, making a separate application for an Administrator pendente lite would be an idle formality. To this extent, the Court has sufficient powers to mould the reliefs prayed for. Accordingly, the prayer for appointment of a Special Officer/ Receiver be treated as one for Administrator pendente lite.
28. In view of the above, GA 1 of 2021 and GA 3 of 2021 stand allowed. The ad interim order dated 1 July 2021 stands confirmed. There shall also be an order in terms of prayer (a) of GA 3 of 2021 (after giving credit for the amount deposited and lying with the Registrar, Original Side). Mr. Prabhabhar Chowdhury, Advocate and a member of the Bar Library Club is 18 appointed as Administrator pendente lite at a monthly remuneration of 3000 gms (and all incidental expenses) to be paid by the petitioner at the first instance which would be ultimately adjusted with the funds, assets and properties of the Estate before distribution. There shall be also an order in terms of prayers c(i) [(excluding the 23 transactions details whereof have been enumerated in para 9 above for which liberty is granted to file separate and independent proceedings in accordance with law pertaining thereto)], c (ii), (d) and (e) of GA 3 of 2021. GA 6 of 2022 stands dismissed.
(Ravi Krishan Kapur, J.) Later:
After pronouncement of the judgment, Mr. Utpal Bose, Senior Advocate appearing on behalf of the caveator Neeraj Khanna prays for stay of operation of the order. The prayer for stay is considered and rejected.
(Ravi Krishan Kapur, J.)