1 nms.166.09 in tp.876.09 skt/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.166 OF 2009 IN TESTAMENTARY PETITION NO. 876 OF 2009 Mr.Curush Faramroze Bilimoria ....Petitioner V/s. Miss Zoish Behram Patel ....Respondent ..... Mr.Girish Desai with Mr.Tanvir Shaikh for the Petitioner. Mr.Munir Merchant for the Respondent. ..... CORAM : SMT.ROSHAN DALVI, J. DATE : 7TH JANUARY 2011. ....... P.C. :- 1 The Petitioner has propounded the will of the deceased one Behram Cawas Patel. The will has been challenged by the mother and the daughter of the deceased on the ground that the will is bogus and could not have been executed by the deceased. Pending the petition, this Notice of Motion has been taken out by the Petitioner restraining the mother and daughter of the deceased from dealing with, transferring, creating third party interest in the suit property more particularly described in the will, from encroaching on the suit property, from recoverying any money from the suit property and for mandatory order directing them to remove the 2 nms.166.09 in tp.876.09 locks put on the suit property as also for refund of Rs.40,000/-, taken from the estate of the deceased. 2 Mr.Desai, learned counsel appearing on behalf of the Petitioner relied upon Section 269 of the Indian Succession Act, 1925 for claiming protection of the property under the aforesaid reliefs. Section 269 reads thus : 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 interfere for 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 Jain or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate. The Section applies to the protection of the property at the instance of any person claiming to be interested in the property. Consequently, if a person has nothing to do with the propounding of the will or consideration of the validity of the execution of the will and shows any loss or damage caused to the property, he may apply to the District Judge for protection of such property. The Plaintiff, in a position as an executor of the estate, cannot apply for protection until he is proclaimed to be an executor upon the 3 nms.166.09 in tp.876.09 validity of the will being considered, which, in a testamentary suit, would be only at the hearing of the suit. 3 Mr.Desai contends that under Section 263 of the Indian Succession Act, 1925, the Defendants are barred from making any claim under the will. Section 263 deals with revocation or annulment for just cause. It may hardly be mentioned that the section would come into play only after a grant is made and a revocation application is filed. 4 In the suit pursuant to the caveat, the validity of the execution of the will would have to be first determined. It is upon such determination that the Petitioner could administer the estate of the deceased as an executor. Since it is the only jurisdiction of the testamentary court to determine the validity of the will, and not to determine the title in respect of the suit property, orders for protection of the properties beqeuathed under the will cannot be passed in a testamentary suit. (See “Ishwardeo Narain Singh V/s.Kamta Devi AIR 1954 SC 280” and “Rupali Mehta V/s.Tina Mehta (2006) 6 All.M.R.48”) 5 The reliefs pressed for in the present Notice of Motion are, therefore, to be applied in the Civil Court in a civil suit for determination of the title and the consequent protection. In this suit, the Petitioner may proceed to trial expeditiously to prevent any waste of the properties. Since the affidavit-in-support of the caveat has been filed, which would be treated as the written statement in the suit, the issues in the suit are framed as 4 nms.166.09 in tp.876.09 follows : (1) Whether the last will and testament of the deceased Behram Cawas Patel dated 28th August 2008 is validly executed . (2) Whether the last will and testament of the deceased is bogus or forged. (3) To what relief, if any, is the Plaintiff entitled to ? 6 The Plaintiff shall file his affidavit of examination-in-chief, affidavits of other witnesses, if any, and the affidavit of documents within four weeks from today. The admissibility of the documents of the Plaintiff shall be considered on the next date of hearing. 7 Suit is adjourned to 8th February 2011. (SMT.ROSHAN DALVI, J.)