1 NM-167 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Notice of Motion No.167 of 2010 IN Testamentary Suit No.103 of 2010 IN Testamentary Petition No.84 of 2010 Maya Harichand Makhija .. .. Plaintiff v/s. Asha Kanayalal Bajaj .. .. Defendant/ Caveator And Deutsche Bombay School Educational Institution. .. .. Proposed Respondent Mr.S.C. Naidu with Ms.Nidhi Singh i/by India Law Alliance for Plaintiff. Mr.Suresh Shah with Mr.Mehul Shah for Defendant. ---- CORAM : SMT.ROSHAN DALVI, J. DATED : 19th January 2011 P.C. : 1.The Plaintiff and the Defendant are the sisters. The Plaintiff has propounded the Will of her deceased mother. The Defendant has challenged the validity of the Will. That will have to be decided at the final hearing. 2 NM-167 2.This Notice of Motion is for reliefs in respect of one of the properties of the deceased which is in Mumbai being flat No.904, Triveni Sangam Co-operative Housing Society Ltd., 15A Peddar Road, Mumbai. The Defendant has applied for injunction against creating third party rights, deposit of the compensation received in respect of the flat which is given on licence, the Court Receiver, the injunction against renewal of the licence and deposit of licence fees and compensation in the Court. 3.The deceased essentially had one immovable property in Mumbai and two in Bangalore. Under a Will she has appointed the Plaintiff as the executor of the Mumbai property and the Defendant as the executor of the Bangalore property. A civil suit has been filed in the Civil Court at Bangalore. 4.Mr.Shah on behalf of the Defendant states that an application is essentially under Section 247 of the Indian Succession Act which deals with the administration pendente lite. Though no appointment of administrator is sought, he argues that the Court may appoint an administrator in this case with all powers of administration except the power of distribution and those are the powers that administrator would have as per the prayers in this Notice of Motion. The Notice of 3 NM-167 Motion does not seek the appointment of administrator. If the appointment of administrator is sought, a case for such appointment has to be made out. The administrator is held to be analogous to a Court Receiver in the case of Adapala Subba Reddy vs. Adapala Andemma, AIR 1951 Madras 393. Consequently, the case for appointment of Court Receiver would have to be made out. The Applicant must show waste of the property. No such application is made. The property in Mumbai, of which the Plaintiff is appointed executor, is only a flat which is given on licence. The licence fee is collected. Of course, if the validity of the Will is not upheld, the Defendant would be entitled to half the flat as 50% equal share in the estate of her deceased mother. The Defendant would also be entitled to claim compensation from the profits made out of the flat upon the Will being held invalid. No case for appointment of administrator is made out. 5.The reliefs applied for by the Defendant are essentially the reliefs to be applied for in a civil suit. In the judgment of the Supreme Court in the case of Ishwardeo Narain Singh vs. Kamta Devi, AIR 1954 SC 280, relied upon in the case of Rupali Mehta vs. Tina Mehta, (2006) 6 All MR 48, it has been held that such reliefs cannot be granted by a Testamentary Court because the jurisdiction of the Testamentary Court is 4 NM-167 to only declare whether a Will propounded by the Plaintiff in a suit is validly executed or not. 6.The reliance upon the case of Adapala (supra) is misconceived. That case deals with the application for appointment of a General Administrator. The properties in that case were of considerable magnitude. Attempt to secret all income of the property was seen by the Court. The attempt to defeat the claim of the Appellants was made out. The Court, therefore, opined that the property had to be secured and preserved pending the petition due to the magnitude of the estate and the hostile attitude of the Respondents. The Court observed that the Respondents had concealed the immovable property of a large value and realised amounts by way of income and sale of the movables and manipulated the accounts to suppress the true extent of the estate and minimise the income therefrom. The Court observed that to safeguard such an estate, it cannot be said that it was not just and proper that an administrator or a receiver pendente lite be appointed. The appointment in that case was made because the case was made out. No such case is made out in this application. Upon the mere fact that the deceased has died leaving behind certain properties or the mere fact that there is an apprehension that the properties would be disposed of, the testamentary jurisdiction of the 5 NM-167 Court cannot be enhanced to encompass the civil jurisdiction of the Court. That would be a matter only for a civil court. The Defendant would be entitled to file a civil suit and claim reliefs, interim or otherwise, upon a case being made out. 7.The Notice of Motion is misconceived and hence dismissed. (SMT.ROSHAN DALVI, J.)