Calcutta High Court (Appellete Side)
Atanu Malick vs Nemai Charan Banerjee & Anr on 11 May, 2022
11.05.2022
SL No.24
Court No.8
(gc)
FMA 549 of 2022
With
CAN 1 of 2022
Atanu Malick
Vs.
Nemai Charan Banerjee & Anr.
Mr. Partha Pratim Roy,
Mr. Prasanta Bishal,
...for the Appellant.
The order the learned Additional District Judge
refusing to pass interim order of injunction in Probate Suit
No.28 of 2015 is a subject matter of challenge in this
appeal.
Mr. Partha Pratim Roy, learned Counsel appearing for
the appellant has relied upon the decision of a Division
Bench of our Court in Atula Bala Dasi & Ors. Vs.
Nirupama Devi & Ors. reported at AIR 1951 CAL 561 in
support of his contention that once the probate proceeding
has been marked as contentious cause, the probate Court
can always apply the principles of Order 39 Rule 1 & 2 in
deciding the application for injunction without filing an
application for appointment of an administrator pendente
lite.
In Nirod Barani Debi v. Chamatkarini Debi
reported at 19 CWN 205 the Hon'ble Division Bench
presided over by Justice Mookerjee considered very same
issue raised in this appeal namely, the power and
jurisdiction of the probate court to decide an application
2
for temporary injunction under Order XXXIX Rule 1 and 2
of the Code of Civil Procedure. It was stated that a
probate proceeding is not a suit in which there is property
in dispute as contemplated by r.1 of Or.31 of the Civil
Procedure Code, as the only question in controversy in
such a proceeding is that of representation of the estate of
the deceased and no question of title thereto, i.e., the title
of the deceased or of the conflicting titles alleged by the
parties to the proceedings can be investigated by the
court. But the court of probate is not therefore
incompetent to grant a temporary injunction in any
circumstances. 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. When such an application has been made, the court
may, in case of necessity, grant a temporary injunction
either in exercise of inherent power under r.7 of Or.39 of
the Civil Procedure Code.
It has been categorically stated that the court under
appropriate circumstances has ample authority either
under statutory powers or in the exercise in the inherent
jurisdiction, to make a temporary order so as not to defeat
the ultimate order which the court is competent to make.
The said view has been reiterated in Atula Bala Dasi
(supra). The learned trial Court has taken a view that in a
testamentary suit the property which is mentioned in the
Will or property may be or may not be left behind by the
3
deceased is not a subject matter of the testamentary suit
and, therefore, in exercise of its power under the Code of
Civil Procedure. The court would not be entitled to make
any interim order in relation to protection of the property.
Mr. Roy has submitted that our court in the case of
Priyamvada Devi Birla and Ors. v. Laxmi Devi Newar
and Ors. reported at 2005(4) CHN 544 (Cal) held that
Section 141 of the Code of Civil Procedure applied to a
testamentary suit and, accordingly, there was no reason
for the learned trial Court not to apply the said principle
and grant a protective order. Mr. Roy, however, candidly
admit that no application for appointment of an
administrator pendente lite has been filed by the
appellants.
The appellants have filed a caveat and in respect of
the said caveat the probate proceeding has been marked
as contentious cause. Keeping in mind that there are
allegations to the effect that the respondent had already
transferred some of the properties bequeathed in favour of the plaintiffs before the probate has been granted and in the event the probate are dissipated during the pendency of the probate proceeding the same would likely to cause irreparable prejudice to the respondents. There shall be an order of injunction restraining the executor to deal with the properties bequeathed under the Will for a period of eight weeks or until further order, whichever is earlier. 4 The appellant is directed to serve a copy of the memorandum of appeal and the stay petition along with a copy of this order upon the respondents by Speed Post with A.D. within one week from date with an intimation that this matter shall be listed for further consideration on 7th June, 2022.
In the event the respondents are not represented on the adjourned date, the appeal and the application may be heard in their absence.
However, this order shall not preclude the learned Additional District Judge to proceed with the hearing of the probate suit and decide the suit on merits. We request the learned Trial Judge to dispose of the probate suit as expeditiously as possible without granting any adjournment to either of the parties.
This order shall also be communicated to the learned Additional District and Sessions Judge, Fast Track Court- II, Howrah for information and doing the needful. The matter stands adjourned till 7th June, 2022.
(Sugato Majumdar, J.) (Soumen Sen, J.)