1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.11 OF 2008 IN TESTAMENTARY SUIT NO.62 OF 2007 IN TESTAMENTARY PETITION NO.557 OF 2007 Sunil Gaurishankar Goenka. ...Plaintiff. Vs. Rakesh Bansilal Jhaveri & Ors. ...Defendants. And Mrs.Sheela S. Goenka. ...Applicant. .... Mr.Virag Tulzapurkar, Senior Advocate with Ms.Saumya Srikrishna and Mr. P.C. Mankad i/b. Pravin D. Kadam for the Applicant. Mr. B.G. Saraf for the Plaintiff. Mr. G.G. Desai i/b. J.S. Shah for Defendant No.1. Mr. N.G. Thakkar, Senior Advocate with Mr.Zal Andhyarujina and Ms. Renu Banerji i/b. Little & Co. for Defendant No.2. ..... CORAM :DR.D.Y.CHANDRACHUD, J. March 3, 2008. P.C.: By consent, and on the request of Learned Counsel, the Notice of Motion is taken up for hearing and final disposal. 2. An application has been made for the grant of interim relief in a Testamentary Suit, principally in relation to: (i) Immovable 2 property situated at Fort, Mumbai; (ii) Immovable property situated at Ujjain; and (iii) A cupboard containing movables situated at the Fort property. Learned Counsel appearing on behalf of the Applicant has argued the application on the foundation that protective orders of the Court have been sought under Section 192 of the Indian Succession Act, 1925. 3. Section 192 provides that if any person dies leaving property, movable or immovable, any person claiming a right by succession thereto, may make an application to the District Judge of the District where any part of the property is found or situate for relief, either after actual possession has been taken by another person or when forcible means of seizing possession are apprehended. Section 193 contemplates an enquiry by the Judge in order to determine whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession of it has no lawful title, and that the applicant, is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide. 3 4. Now, it is a well settled principle of law that the Testamentary Court has no jurisdiction to go into a question of title. In fact, it is on that basis that Counsel appearing on behalf of the Applicant has urged that the Applicant would be instituting a substantive suit in order to question the validity of a Deed of Gift dated 16th March 2007 purported to have been executed by the deceased during his life time. A protective order has been sought for a period of four or six weeks, as the case may be, in order to protect the Plaintiff until a substantive suit is filed in which an application for interlocutory relief is proposed to be made. The issue is whether a protective ad-interim order should be passed in aid of a substantive suit which the Plaintiff proposes to institute. 5. Now, it is material to note that the Testamentary Petition was filed on 18th June 2007. The petition has been filed by the son-in- law of deceased who claims to be an executor under a Will executed purportedly on 18th April 2007. The Notice of Motion for interlocutory relief was taken out on 28th January 2008 nearly six months after the 4 institution of the Testamentary Petition. Caveats were filed in September 2007 but even so the conduct of the Plaintiff/Applicant is not such as to warrant an apprehension of any urgency for the grant of protective relief. In Uma Devi Nambiar vs. T. C. Sidhan,1 the Supreme Court, while interpreting the provisions of Sections 192 and 193, held that these proceedings are essentially summary in character. Before taking any steps under Section 194, the Supreme Court held that the Court is required to be satisfied of the existence of such strong ground of belief on both points i.e. the person in possession has no lawful title and that the person applying is likely to be materially prejudiced if left to the ordinary remedy of a regular suit. An order under Sections 192 and 193 is passed with a view to prevent a person having no rights in relation to the property taking forcible possession. 6. In the present case, it cannot be said that the First and Second Defendants are persons who meet the description of individuals who have no lawful title to the property. The Plaintiff has set up a will executed by the deceased on 18th April 2007. The 1 (2004) 2 SCC 321 5 authenticity of that will is in serious dispute because it is an admitted position that the deceased at the material time, on the date of the execution of the will, which is a document running into six computerized pages, was in the ICU of the Bombay Hospital. The treating doctors – Dr. J.S. Sorabjee and Dr. Arun B. Shah have in their certificates opined that the patient had at that time severe multiple organ problems, that he was very weak and incapable of independent care and required extensive medical input for his maintenance. Both the doctors have stated in their certificates that the testator was unable to even communicate appropriately or take decisions during that period. The validity of the Will will, of course, be determined in the probate proceedings and nothing contained in these observations is intended to prima facie indicate any finding on the validity of the Will. More important, however, is that the claim which has been put forth by the Plaintiff is seriously in dispute. The First and Second Defendants are sons of the deceased who have relied upon the Gift Deed executed in respect of the Fort, Mumbai, property by the deceased on 16th March 2007. The Plaintiff has necessarily to institute an appropriate proceeding for challenging the validity of the 6 Gift Deed. At this stage of the case, neither can it prima facie be said that the First and Second Defendants, who are the sons, or that the Third Defendant, who is the daughter, are persons having no lawful title or that they have taken or are apprehended to take forcible possession. As noted earlier, the Testamentary Petition was instituted on 18th June 2007 and sufficient opportunity was available and continues to be available to the Plaintiff to seek substantive relief in a suit where the proposed Deed of Gift is sought to be impugned or relief can also be sought in respect of the Ujjain property as well. No case, therefore, has been made out for the grant of interim relief either in respect of the Fort property or Ujjain property. It may also be noted that the contention of the First and Second Defendants is that they have, at all material times, been in possession of the Fort, Mumbai property. In so far as the cupboard containing movables is concerned, it is common ground before the Court that an inventory was taken soon after the death of the deceased, of all the articles lying therein; that the cupboard has been placed under lock and key and the envelop containing the key of the cupboard has been duly sealed and has been placed with the Second Defendant for safe 7 custody. 7. In these circumstances, no prima facie case for interim relief is made out on the sole foundation which was pressed in aid, namely Section 192 of the Succession Act. This order, it is clarified, will not come in the way of a substantive suit which the Plaintiff seeks to institute and nothing contained herein will be construed as a factual determination of the rights and contentions of the parties in such a suit. The Notice of Motion is dismissed. .....