Patna High Court - Orders
Vimala Devi And Anr vs Kashi Nath Pandey And Ors on 30 October, 2023
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.13 of 2018
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Vimala Devi and Anr
... ... Appellant/s
Versus
Kashi Nath Pandey and Ors
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ashwani Kumar Tiwary, Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
ORAL ORDER
12 30-10-2023Re: I.A. No. 1 of 2023 Heard the learned counsel for the appellants as well as learned counsel for the respondents.
2. This interlocutory application has been filed under Order XXXIX Rule 1 read with Section 151 of the Code of Civil Procedure by the appellants for staying the operation of the judgment and decree dated 31.03.2017 passed in Title Suit No. 8 of 2011.
3. Defendant nos. 2 and 3/Appellant nos. 1 and 2 have filed this First Appeal against the judgment and decree dated 31.03.2017 passed in Title Suit No. 8 of 2011(arising out of Probate Case No. 38 of 2010) by learned Additional District Judge, Sasaram, Rohtas whereby the plaintiff-respondents' suit for grant of letter of administration has been decreed and granted probate in respect of the Will dated 13.12.2007 executed Patna High Court FA No.13 of 2018(12) dt.30-10-2023 2/6 by Sahodra Devi in favour of respondents.
4. The defendants-appellants filed the aforesaid injunction application for staying the operation of the judgment and decree dated 31.03.2017 passed in Title Suit No. 8 of 2011. It is stated in the injunction application that the respondent no. 1 has transferred part of the suit land during the pendency of this appeal between 2018 to 03.01.2023. Respondent no. 1 has sold the land to the different persons. The respondents filed Probate Case No. 38 of 2010 for probate of unregistered forged and fabricated Will executed by late Sahodra Devi (wife of late Sudarshan Pandey), the mother of the appellants in favour of the respondents on 13.12.2007. The said Sahodara Devi died on 28.10.2009 leaving behind her husband Sudarshan Pandey and defendant nos. 1 and two daughters namely, Vimala Devi, defendant no. 2 and Hiramuni Devi, defendant no. 3. During the pendency of this probate case, Sudarshan Pandey, defendant no. 1 died. On summoned, the appellants appeared and filed their written statement stating that their mother never executed the alleged Will and the said unregistered Will is forged and fabricated one. It is submitted that Sahodra Devi had no right to execute the Will as her husband Sudarshan Pandey(defendant no. 1) was alive at the time of Will and the property under Will is ancestral property of her husband. It is submitted that late Patna High Court FA No.13 of 2018(12) dt.30-10-2023 3/6 Sudarshan Pandey and late Ramprit Pandey are the full brothers. Plaintiff-respondents are the grandson of Ramprit Pandey and appellants are the daughter of Sudarshan Pandey. It is further submitted that the property in schedule of the probate case is of ancestral property of appellants and respondents and there is no partition between plaintiff-respondents and defendant- appellants. A partition suit bearing Partition Suit No. 712 of 2007 between the parties is pending before the competent court. It is further submitted that respondent no. 1. namely, Kashinath Pandey sold the suit land through four sale deeds on different dates with definite boundaries to different persons.
5. On the other hand, respondent no. 1 appeared and filed his reply stating therein that interlocutory application has been filed under Order 39 Rule 1 read with Section 151 of the Code of Civil Procedure. In a proceeding for probate or letter of administration, no corporeal right over the property is under dispute and only the genuineness of the Will has to be tested and as such, no order appertaining to the property should be passed and the provision of order 39 Rule 1 of the Code of Civil Procedure relating to grant of injunction is not maintainable. It is stated that testator was a co-sharer of the respondents and the present respondent executed some share of his land which he had got in oral partition. The land which is under dispute has not Patna High Court FA No.13 of 2018(12) dt.30-10-2023 4/6 been transferred by the respondent no. 1. In reply, the appellants submitted that from the perusal of sale deed executed by respondent no. 1, it appears that the specific portion of the plot in suit have been transferred.
6. In the case of Atualabala Dasi Vs. Nirupma Devi, reported in A.I.R 1951 Cal. 561, it has been held that:-
"The powers of a probate court for the protection of the property which is the subject matter of the probate proceedings are regulated by Section 247 and 269 Succession Act, but apart from those provisions, the power of that court are wide enough to issue temporary injunction restraining other persons from interfering with the properties which are subject matter of testamentary disposition."
7. In AIR 1962 SC 527 (Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal), the Apex Court has held that:-
"Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of Patna High Court FA No.13 of 2018(12) dt.30-10-2023 5/6 justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code. Thus, there being no such expression in S.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 opinion that the interests of justice require the issue of such interim injunction."
8. Merely because there is no dispute as regards the corporeal right to property, it does not necessarily follows that Patna High Court FA No.13 of 2018(12) dt.30-10-2023 6/6 the appellants are not entitled to avail the remedy under Order 39 Rule 1 and even under Section 151 of the Code of Civil Procedure. The Court has got inherent power to protect the right of the parties and in such situation, it is apt to protect the property for which the proceedings are pending. The aforesaid view taken by this Court has been reported in 2014 (1) PLJR 31 (Kusheshwar Purbey Vs. Ram Janakijee).
9. In view of the above discussion and conduct of respondent no. 1, it is necessary to protect the suit property. The respondents are required to be injuncted from alienating, transferring or dealing with the property in any manner or damaging the subject matter of the probate proceeding during the pendency of this appeal. I, therefore, in exercise of power under Section 151 of the Code of Civil Procedure restrain the respondents from alienating, transferring or encumbering or damaging the suit property till the disposal of the appeal.
10. Thus, I.A. No. 1 of 2023 is allowed.
(Khatim Reza, J) premchand/-
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