IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.160 of 2008 RAM SHRESHTH SINGH, son of late Alakh Singh, resident of village- Murahaghat, P.S. Kanhauli, District- Sitamarhi. Versus 1. CHULHAI SINGH, son of late Jang Singh 2. Rajdeo Singh, son of late Jang Singh 3. Pramila Devi,widow of late Mahendra Singh 4. Suresh Singh, son of late Mahendra Singh 5. Rajesh Singh, son of late Mahendra Singh. All resident of village- Murahaghat, P.S. Kanhauli, District- Sitamarhi. 6. Urmila Devi, wife of Mahehswar Singh, resident of village- Hathiaul, P.O. Balara, District-Sarlahi, Nepal. 7. Indrasan Devi, wife of Purushottam Singh, resident of village- Vijayibarba, P.O. Lahaura, District- East Champaran. 8. Sudama Devi, wife of Deendayal Singh, resident of village- Gharwara, P.S. Mejarganj, District- Sitamarhi. ----------- 5. 7.11.2009 Heard learned counsel for the appellant and learned counsel for the contesting respondent Nos. 6 to 8. The appeal has been filed against the order dated 13.2.2008 passed by the Additional District Judge, F.T.C. VII, Sitamarhi in Probate Case No.11 of 2007, by which he has rejected the petition dated 17.1.2008 filed by the applicant- appellant for grant of temporary injunction against the opposite parties-respondent Nos. 6 to 8. The appellant had filed aforesaid probate case for grant of probate/ Letter of Administration of the will dated 2.10.2005 executed by his uncle (Chacha), Ram Swarath Singh - 2 - in his favour. The opposite parties-respondent Nos. 6, 7 and 8 appeared in the probate case and filed caveat/objection stating that after the death of their mother they being the three daughters of the alleged testator, Ram Swarath Singh were residing with him and used to serve him and after his death they came in possession of the entire property and the will in question is forged, fabricated and antedated document and does not bear the L.T.I. of said Ram Swarath Singh. On 17.1.2008, the applicant-appellant filed a petition for grant of temporary injunction against opposite party Nos. 6 to 8 stating that respondent No.8 had executed a sale deed for one of the plots and the other respondent Nos. 6 to 8 also intend to sell further land and for that they are contacting several persons. In their rejoinder, respondent Nos. 6 to 8 claim that the daughters of the alleged testator had full right, title and possession over the property left by their father and no right as executor or legatee can be established in any case unless a probate of will is granted by a Court of competent jurisdiction. After hearing the parties, the learned - 3 - court below dismissed the application for grant of temporary injunction holding that he had no case for grant of temporary injunction in his favour. It was held that the respondent Nos. 6 to 8 being daughters of the testator are class- I heirs of the testator and the applicant had no right in the matter until the probate/ Letters of Administration is allowed by the Court, which has not yet been done. Thus, he had neither prima facie case nor balance of convenience in his favour nor any irreparable loss accrued to him. Learned counsel for the appellant submits that the Court below ought to have granted the temporary injunction because respondent Nos. 6 to 8 had not only sold the property in question, rather they have clear intention to sell the entire property before the probate case is decided. It is further submitted that the appellant is only claiming his 1/4th share in the property as bequeathed to him under the will out of the ten bighas of land. It is further submitted that the appellant has no intention to grab the property of the respondents and is only concerned with his share under the will. Learned counsel also relies upon a - 4 - decision of the Supreme Court in the case of Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Das: 2005(1) PLJR 94 (S.C.), in paragraph No.10 of which it has been laid down that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party which may ultimately succeed and may further lead to multiplicity of proceedings. He further relies upon the decision of a learned single Judge of this Court in the case of Dharam Nath Ojha & ors vs. Raghunath Ojha : 2001(1) PLJR 268, in paragraph No.9 of which it has been held that if a lis has been admitted for adjudication, then it becomes the duty of the Court to preserve the subject matter of the litigation by an appropriate order so that the same is available at the time of final adjudication and the decree does not become a barren one. Lastly, learned counsel seeks support from the decision of a Division Bench of the Calcutta - 5 - High Court in the case of Atula Bala Dasi and others vs. Nirupama Devi and another: A.I.R. 1951 Calcutta 561, in paragraph No.8 of which it has been held as follows: “8. We may in this connection consider the powers & the jurisdiction of a probate court for safeguarding the interest of all concerned, & particularly to protect the properties which are the subject matter of the testamentary disposition. We have noticed already the provisions contained in Ss.247 and 269, Succession Act. Even where the exercise of the powers given to the probate court under S. 247, Succession Act, cannot obviate the difficulties or protect the properties, the powers of that court are wide enough to issue temporary orders restraining other persons from interfering with the properties which are the subject-matter of testamentary disposition. As indicated in Nirod Barani Debi v. Chamatkarini Debi,‟ 19 C.W.N.205 though for certain purpose, a probate proceeding is not a suit in which there is a property in dispute, as contemplated under O. XXXIX R.1, Civil P.C. the only question in controversy being as to who is to represent the estate of a deceased person, & there being no question of title involved in those proceedings, the court of probate is not thereby wholly incompetent to grant a temporary injunction even in extreme cases; such order of injunction is to be issued only in aid of & in furtherance of the purpose for which a grant is made by a probate court. It is, therefore, open to the probate court not only to appoint an administrator pendente lite, but also to issue an order of injunction, temporary in character, pending the appointment of an administrator pendente lite. If such powers are exercised in probate cases by a probate court, there is no reasonable chance of any property being dissipated, pending the actual grant of a probate or the appointment of an administrator. As observed in „Nirodbarani v. Chamatkarini ( supra)‟ “In cases where it is brought to the notice of the probate court that a party in possession is about to deal with the movable properties unless injunction is granted, - 6 - appointment even of an administrator pendente lite may become fruitless. The Court under such circumstances, has ample authority, either under statutory powers or in the exercise of its inherent jurisdiction, to make a temporary order, so as not to defeat the ultimate order which the court is competent to make”. In our view, the proper application which ought to have been made in the present case was an application for the appointment of an administrator pendente lite, & if necessary, to pray for the issue of a temporary injunction on the decree-holders concerned, pending the appointment of an administrator pendente lite. In a case of this description, the probate court will not grant the application as a matter of course. The Court of probate would appoint an administrator pendente lite in all cases where the necessity of the appointment is made out. As was observed in „Brindaban v. Sureshwar”, 10 C.L.J.263 at p.275, the pendency of different proceedings in different courts is a ground which is to be taken into consideration while dealing with such an application for the appointment of an administrator pendente lite. There is, however, another point which must not be over-looked. It is to be shown that the property which is the subject-matter of the testamentary disposition is going to be affected or dealt with, either in the course of proceedings in another court, or by the personal acts of another individual.” Learned counsel for the respondent Nos. 6 to 8, on the other hand, submits that the probate Court has rightly refused injunction as order 39 Rules 1 and 2 of the Code of Civil Procedure have no application to a probate case, which is governed exclusively under the provisions of the Indian Succession Act, 1925. It is further submitted that under Section 213 of the Indian Succession Act, no right as executor or legatee - 7 - can be established in any Court of Justice, unless a Court of competent jurisdiction has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. It is further submitted that specific provision has been made in this regard by Section 247 of the said Act, which is in the following terms: “247. Administration pendente lite- Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction.” In view of the aforesaid provisions, it is submitted that the only power conferred upon a probate court is to appoint an Administrator pendente lite pending any suit touching the validity of the will and not grant any injunction with respect to any of the parties. Learned counsel points out that no prayer was made at any time by the appellant to appoint an Administrator pendente lite and, therefore, the application - 8 - under Order 39 Rules 1 and 2 is misconceived. Thus it is submitted that no right can be claimed in a will by an executor or legatee unless the probate or Letters of Administration is obtained. Learned counsel relies upon a decision of the Supreme Court in the case of Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose and others: A.I.R. 1962 Supreme Court 1471, in the relevant part of paragraph No.7 of which it has been held as follows: “ This section clearly creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained”. It is contended by learned counsel that in view of the aforesaid decision of the Supreme Court, the Calcutta High Court‟s decision can have no application on the point. Having considered the rival submissions, this Court does not find any force in the submission of learned counsel for the appellant. It is well settled that a probate proceeding is not a suit in which there is a property in dispute - 9 - and thus there cannot be any direct application of the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure with respect to such proceedings. If a protection of the property under the Estate of the testator is considered necessary, then provision has been made in that regard by Section 247 of the Indian Succession Act for the appointment of an Administrator pendente lite of the Estate. Even the decision of the Calcutta High Court in Atula Bala Dasi‟case (supra) only speaks of the issuance of an order of injunction temporary in character pending an application for appointment of an administrator pendente lite but it has been made clear that the same is not a matter of course and has to be exercised only in a proper case in aid and furtherance of the purpose for which a grant is made by a probate Court. In the present matter admittedly no application has been made at any stage for the appointment of an Administrator pendente lite. Thus, there can be no question for the probate Court to exercise its power to grant any temporary injunction until the question of appointment of an Administrator pendente lite is under - 10 - consideration. In the above circumstances, this Court does not find any merit in this appeal and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta, J. )