: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.34 OF 2010 IN TESTAMENTARY SUIT NO.36 OF 1984 IN TESTAMENTARY PETITION NO.449 OF 1984 Vijayprakash Chandrarao Sawant .. Plaintiff v/s. Ramakant Chandrarao Sawant & Ors. .. Defendants ......... Mr. S.U. Kamdar, Sr. Counsel with Mr. Cyrus Ardeshir, Mr. Rajiv Bhatia and Mr. Shreyas Mehta i/by Apex Consillis for the plaintiff Mr. R.A. Thorat with Mr. P.J. Thorat for defendant no.4 and applicant in support of notice of motion. ......... CORAM : R.Y.GANOO, J. DATE : 22nd APRIL, 2010. P.C. : 1. This motion is taken out by the defendant no.4. Pleadings are complete. By this motion, defendant no.4 wants that properties set : 2 : out in the prayer clauses should not be dealt with by the plaintiff or defendant nos.1 to 3. It is to be noted that Chandrarao is said to have executed a Will on 11th February, 1996 in regard to which Testamentary Suit No.21 of 1992 is pending. It is also alleged that Chandrarao has executed a Will on 5th August, 1974 in regard to which present Testamentary Suit is pending. This notice of motion is taken out in the Testamentary Suit No.36 of 1984 in Testamentary Petition No.449 of 1984. I have heard learned advocate Mr. Thorat appearing on behalf of the defendant no.4, who has taken out the notice of motion and learned advocate on behalf of the plaintiff. According to the plaintiff, the properties set out in the prayer clause of the notice of motion are the properties held by the deceased. In view of two different Wills said to have been executed by the deceased Chandrarao, it is necessary that the properties set out in the prayer clause should be protected so that they would not go in the hands of a third person. The submission advanced across the bar on behalf of the plaintiff appeared to be prima-facie right however, on account of judgment delivered by this Court in the case of Rupali Mehta v/s. Smt. Tina Narinder Sain Mehta reported in AIR 2007 : 3 : Bombay 62, it is difficult to accept the said submission. 2. Learned advocate Mr. Thorat had tried to distinguish this judgment by contending that this Court should re-appreciate the provisions of Section 192 of the Indian Succession Act, 1925 (hereinafter referred to as the said Act) visa vis. Section 269 of the said Act. According to learned advocate Mr. Thorat the powers conferred on a District Judge under Section 192 can as well be exercised by this Court ultimately to see that the properties involved in the litigation are protected. 3. I have gone through the aforesaid judgment in the case of Rupali Mehta. In my view, the provisions of Section 192 of the said Act and Section 269 of the said Act will have to be read together Section 192 of the said Act confers powers for the purposes of protection of the properties independent of the probate proceedings. Section 269 also permits the Court to pass certain orders to protect the properties however, on account of sub Section 2, the Court dealing with the probate proceedings is unable to pass orders if the : 4 : deceased is Hindu etc. In the present case, the deceased is a Hindu, with the result, powers under Section 269 cannot be used and if at all defendant no.4 wants to protect the properties set out in the prayer clause of the motion, it will be open for defendant no.4 to move a Court by making use of provisions of Section 192 of the said Act. In my view, there is no need to defer from the judgment delivered in the aforesaid case of Rupali Mehta. On this count, the motion taken out by the defendant no.4 will have to be dismissed. Hence, the following order is passed to dispose of the notice of motion. ORDER (i) Notice of Motion is dismissed. (ii) There shall be no order as to costs. [R.Y.GANOO, J.]