The jurisdiction of a court determines the subject matter of the proceedings before it and interim reliefs are granted to protect such subject matter. To answer whether a testamentary court has the power to grant interim relief, it would be necessary to understand the jurisdiction of a testamentary court and the subject matter of proceedings before it.

In Balan Alias Balendu Jayant Sawant v. I.K. Agencies Pvt. Ltd.[1], the Bombay High Court succinctly explained the jurisdiction of a testamentary court.

6. It is settled principle in law that the Testamentary Court is not required to go into the question of ownership or title to the property which forms the subject matter of bequest under the Will. The Testamentary Court is only required to see whether the deceased had the capacity to make the Will and whether the Will has been made in accordance with the provisions of law. Testamentary Court only considers whether the Will is the last testamentary instrument of the deceased, whether the deceased was in sound state of mind when he made the Will and whether the Will was made in accordance with, law that is to say whether it was properly executed and attested as per law.

In Rupali Mehta v. Tina Narinder Sain Mehta[2], the Plaintiff had taken out a Notice of Motion praying for appointment of a Court Receiver and other interim reliefs in a testamentary suit. The Notice of Motion was disposed of and held not to be maintainable. The Bombay High Court analysed in detail the relevant provisions of the Indian Succession Act, 1925 (“the Act”) and the Code of Civil Procedure, 1908 to determine whether the court has been given any power to interfere for the protection of property. The analysed provisions have been briefly summarized before setting out the ratio.

Section 269 of the Act empowers the court to interfere for the protection of the property. However, this section does not apply when the deceased is a Hindu, Mohammedan, Buddhist, Sikh, Jain or in the case of a Christian who has died intestate. Sections 192 and 193 of the Act also provide for summary proceedings where the property of the deceased is in urgent need of protection. However, these provisions can only be resorted to when a person having no right in the property takes forcible possession.

After considering all the relevant provisions, the Court finally held that there was no provision made for authorizing a testamentary court to make interim orders as a matter of course for the protection of the property during the pendency of a testamentary suit.

The ratio in Rupali Mehta (supra) has been followed in Inderjeet Singh Amardeep Singh Chadha v. Davinder Kaur Amardeep Singh Chadha[3]. In Inderjeet Singh Amardeep Singh Chadha, one of the questions before the Bombay High Court was whether the learned Single Judge had committed a jurisdictional error in appointing Administrator pendente lite, given that a testamentary court was concerned only with the validity and genuineness of the will, and not the property in question. While dealing with this issue, the Bombay High Court also examined and set out the principles of a testamentary court’s power to grant interim relief.

19) One rendered by the learned Judge of this Court in the case of Rupali Mehta Vs. Smt. Tina Narinder Sain Mehta wherein it was enunciated that in a testamentary suit, the property which is mentioned in the Will or property which may be or may not be left behind by the deceased is not the subject matter of the testamentary suit, and, therefore, in exercise of its power under Civil Procedure Code, the testamentary Court would not be entitled to make any interim order in relation to protection of the property, unless an order is required to be made by the Court in the peculiar circumstances under Part-VII of the Act. It was further held that there is no such inherent power available to the Court to pass interim order under the scheme of the Act.

20) Another judgment is of a Division Bench of this Court in the case of Ramchandra Ganpatro Hande alias Handege Vs. Vithalrao Hande & Ors.[4] wherein the correctness of the aforesaid ruling in the case of Rupali Mehta Vs. Smt. Tina Narinder Sain Mehta (Supra) was examined. In the case of Ramchandra Ganpatro Hande alias Handege Vs. Vithalrao Hande & Ors. (Supra), after a survey of the authorities governing the nature of jurisdiction exercised by the testamentary Court, it was observed as under:-

“14. …It would not be permissible, in the face of the specific provision of sub-section (2) of Section 269 to read into the provisions of Sections 266 and 268 a general power to grant interlocutory relief even prior to the grant of probate in respect of the property which is alleged to form part of the estate of the deceased. This construction is fortified by the principle that the testamentary Court in proceedings for probate is only concerned with the question as to whether the Will of the deceased is genuine and that it has been made voluntarily. The probate Court is not concerned with questions relating to the property itself. Though an assiduous attempt was made on behalf of the Appellant to rely upon the provisions of the Act, to which a reference has been made earlier, the Court in this case is essentially concerned with the powers of the testamentary Court when it exercises its jurisdiction in a petition for the grant of probate. In view of the express provision which is contained in Section 269(2), there can be no recourse to the exercise of the inherent powers of the Civil Court. This, however, would not preclude recourse to a civil suit for obtaining relief necessary for the protection of the property.”

23) Undoubtedly, the pronouncements, on which reliance is placed by the learned counsel for the appellant, enunciate the legal position that the testamentary Court is not empowered to pass interim orders de hors the jurisdiction conferred upon it by the provisions of the Act, as if it is a Civil Court which deals with the proprietary claims to the property. There is no quarrel over the proposition that the Indian Succession Act, 1925 is a complete Code in itself. However, in our view, the aforesaid pronouncements are of little assistance to advance the cause of the submissions sought to be urged on behalf of the appellant. In the case at hand, the learned Single Judge has not passed an interim order, like the facts of the cases in which the aforesaid pronouncements were rendered.

The legal position with respect to grant of interim reliefs by a testamentary court is well settled. A testamentary court cannot grant interim relief for the protection of the property of the deceased and if such protection is required, the appropriate remedy would be filing a civil suit.

However, Section 247 of the Indian Succession Act, 1925 expressly empowers the testamentary court to appoint an administrator pendente lite. Would this amount to grant of interim relief and thus, be an exception to the general principle that a testamentary court cannot grant interim relief? This was dealt with in Rupali Mehta and Inderjeet Singh’s case. In Rupali Mehta, the Court held as follows.

“9. …

Perusal of the provisions of Section 247 shows that the court itself does not while making an order for appointment of administrator decide what is the property left behind by the deceased and it does not make any interim order in relation to the property.”

While dealing with Section 247 in the case of Inderjeet Singh, the Court held as follows.

25) From the phraseology of the aforesaid Section, it becomes evident that it incorporates an enabling provision and invests the testamentary Court with power to appoint an administrator pendente lite.  The text of aforesaid section does not, in terms, spell out the circumstances in which an administrator pendente lite may be appointed. Undoubtedly, the testamentary Court, in the backdrop of the facts and circumstances of the given case, ought to be satisfied as to the necessity for appointment of an administrator pendente lite. The object of conferring jurisdiction upon the testamentary Court to appoint an administrator pendente lite is implicit. The   object   appears   to   be   to   ensure   that   the   estate   of   the   testator   is effectively managed and securely preserved for the benefit of the persons who are ultimately found to be entitled to succeed to it. This broad object subsumes in its fold a situation wherein it is brought on record that the act and conduct of the person in possession of the estate of the testator are detrimental to the protection and preservation of the estate. The afore extracted section gives ample discretion to the Court as to the person who can be appointed as an administrator pendente lite. There is no apparent prohibition for appointment of a party to the testamentary proceedings as an administrator pendente lite. However, the provision expressly puts two limitations on the powers of the administrator pendente lite: (i) he has no right to distribute the estate; and (ii) he is subject to the immediate control of the Court and shall act under its direction.

In both cases, the Bombay High Court considered Section 247 of the Act and held that appointment of an administrator pendente lite does not amount to grant of interim relief for the respective reasons set out therein and reaffirmed the legal position that a testamentary court does not have the power to grant interim relief.

The legal position seems well settled that given the nature of jurisdiction of a testamentary court and the subject matter of proceedings, a testamentary court cannot grant interim reliefs. A party seeking protection of the property of the deceased would either have to successfully make out a case for appointment of administrator pendente lite before the testamentary court, apply for summary proceedings under Section 192 of the Act, if applicable or approach a civil court for interim reliefs.

[1] Judgment dated 19th March 2010 in Notice of Motion No. 20 of 2010 in Testamentary Suit No. 40 of 2004 in Testamentary Petition No. 67 of 1998

[2] Order dated 29th August, 2006 in Notice of Motion No. 30 of 2006 in Testamentary Suit No. 75 of 2005 in Petition No. 378 of 2005 : AIR 2007 Bom 62 : 2006 (6) MhLJ 786

[3] Judgment dated 25th April, 2019 in Appeal (L) No. 114 of 2019 in Misc. Application (L) No. 2 of 2018 in Testamentary Petition No. 1610 of 2018

[4] 2014 (4) All. MR 189

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