1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO.37 OF 2009 IN PETITION NO.158 OF 2009 Dr.Mrs.Sushila Hande .. Deceased Ramchandra Ganpatrao Hande .. Petitioner versus Vitthalrao Hande & Ors. .. Respondents Mr.Aniruddha Joshi a/w Mr.Shishir Joshi i/by Priti S. Joshi for the petitioner. Mr.M.R.Phal for respondent No.4. Mr.Firoz Bharucha i/by Mr.R.V.Samuel for respondent No.5. CORAM : R.S.MOHITE, J DATE : 28th June, 2010 P. C.: . This is a notice of motion taken out by the executor of the Will of one Dr.Mrs.Sushila Vitthalrao Hande who expired on 6th October 2008 leaving behind a Will dated 2nd October 2002. The notice of motion has been filed for the following reliefs: (a) That this Hon’ble Court be pleased to pass an order and injunction restraining the respondent Nos.4 and 5 their servants, agents, 2 person or persons claiming through or under them from entering upon coming to or interfering with the property of Plot No.19/A, Powai Polyclinic and Hospital Building, Opp.IIT Main Gate, Powai, Mumbai 400 076, alongwith all furniture, fixtures, equipments, materials, jewellers, utensils, electronic/electric articles as more particularly set out in the Schedule I to the Testamentary Petition No.158 of 2009 in any manner whatsoever. (b) That this Hon’ble Court be pleased to pass an order and injunction restraining the respondent Nos.4 and 5 their servants, agents, person or persons claiming through or under them from entering upon, coming to or interfering with the property at Flat No.10-A, Vrushali Apartment, Plot No.250, Mahatma Nagar, Nashik 422 007, alongwith all furniture, fixtures, equipments, materials, jewellary, utensils, electronic/electric articles as more particularly set out in the Schedule I to the Testamentary Petition No.158 of 2009 in any manner whatsoever. (c) That this Hon’ble Court be pleased to pass an order and injunction restraining the respondent Nos.4 and 5 their servants, agents, person or persons claiming through or under them from dealing with or disposing off or interfering with or parting with or creating third party interest in respect of an unallotted plot in a land bearing Survey Nos.388 and 389 at Vakil Nagar No.2 Co-operative Housing Society Limited, Makhmalabad, Nashik, as more particularly set out in the Schedule I to the Testamentary Petition NO.158 of 2009 in any manner whatsoever. 2. On perusal of the reliefs it is seen that reliefs sought are in the 3 nature of an injunction during the pendency of the main petition filed by the executor-petitioner for grant of probate of the aforesaid Will. The reliefs sought in the notice of motion are objected to on a preliminary objection that this Court has no jurisdiction to grant any interim order in the nature of injunction in a testamentary suit. The advocate for respondent Nos.4 and 5 relied upon a judgment of this Court in the case of Rupali Mehta Vs. Tina Narinder Sain Mehta reported in 2006(6) Bom.C.R 778. In the aforesaid case single Judge of this Court has held that in the testamentary suit, the property mentioned in the Will is not the subject matter of the testamentary suit and therefore in exercise of power under the Code of Civil Procedure, the Court will not be entitled to make any interim relief in relation to protection of property unless, the order is required to be made by the Court in peculiar circumstances under the Part VII of the Act. Part VII of the Act referred to by the single Judge in this judgment pertains to the summary procedure as contemplated by sections 192 and 193 of the Indian Succession Act. It is common ground that the procedure under sections 192 and 193 has not been followed and that the relief sought in the motion is not sought under section 192 of the aforesaid Act. 3. I am informed by the Bar that the order of the learned single Judge is under appeal and it is common ground that there is no stay of the 4 operation of the said judgment and order. 4. An attempt was made by the advocate for the petitioner to contend that the judgment has been passed without taking into account the scheme of the Indian Succession Act as a whole. In my view, the said judgment does not prohibit any person from seeking protection of the property by taking out appropriate proceedings in the Civil Court. If a party wants the property which is the subject matter of the Will to be protected, it is open for him to move the Civil Court. I find no reason to differ with the view taken by the learned single Judge in this case. Notice of motion is, therefore, dismissed. The advocate for petitioner states that interim reliefs were granted during the pendency of the motion on 4th April 2009. The said interim reliefs will continue for a period of four weeks from today. (R.S.MOHITE, J)