BAIJNATH PRASAD Vs. BISHWANATH PRASAD

JUDGEMENT

(1.) ON 4th June, 1953 the deceased, a Hindu, died leaving an alleged Will dated 5th May, 1953. At the time of death of the deceased, he was survived by his wife and his mother. By virtue of the law then prevalent, the wife succeeded the deceased with limited right over the Estate left by the deceased. The wife was alive at the time when the Hindu Succession Act, 1956 came into force and by virtue of the provisions contained therein became the full owner of the Estate left by her husband. In 1988, the appellant, a son of a sister of the deceased, applied for grant of probate to the said Will dated 9th May, 1953. The wife filed a caveat to the application for grant of probate and in support thereof also filed an affidavit. It appears that the wife of the deceased, during her life time, sold the Estate thus inherited by her to various purchasers Upon the death of the wife of the deceased she was not substituted, but the purchasers of the Estate of the deceased from the wife of the deceased filed caveats or supported the caveat originally filed by the wife. The application, on contest, has been dismissed. No probate has been granted to the Will. The appellant has filed an appeal challenging the order refusing to grant probate to the Will. While the appeal was pending, the respondents in the appeal made an application for an order restraining the appellant from encumbering or disposing or alienating any part of the Estate of the deceased. This application having been allowed, the present appeal has been preferred principally on the ground that in a probate proceeding, no property is involved and Order 39 Rule 1 of the Code authorizes the court to pass an order of injunction only in relation to the property, being the subject matter of the Suit. In support of the said contention the learned counsel for the appellant relied before the learned single Judge, who passed the impugned order, and also before us the judgments rendered by the Calcutta High Court and the Madras High Court as reported in, AIR 1915 Cal 565 (Nerodebarani Devi vs. Chamatkarini Devya); : AIR 1939 Cal 642 (Goods of Stanley Austin Cardigan Martin);, AIR 149 Mad 45 (Namagiri Ammal vs. Subba Rao) and : AIR 1951 Cal 561 (Atuia Bala Dasi vs. Nirupama Devi). The facts and circumstances under which the said judgments were rendered have no bearing with the present case. In the instant case, although by an application it was brought to the notice of the Court that despite non -grant of probate to the Will, the appellant who is stranger to the Estate of the deceased, is seeking to alienate the same wrongfully, the appellant did not say that he has no intention to do so. The aforementioned judgments have followed the judgment of the Division Bench of the Calcutta High Court rendered in the case of Nerodebarani Devi Vrs. Chamatkarini Devya reported in, AIR 1915 Cal 565. In that case an application for grant of letters of administration was still pending. In the pending application, an application was filed for grant of injunction restraining the applicant from dealing with the properties of the Estate. The application having been refused an appeal was preferred. The appellate Court did not interfere with the order refusing to grant the order of injunction but appointed an Administrator over the State. When the Court has express power to appoint an Administrator over the Estate of a deceased in a proceeding for grant of letters of administration or probate, it should be understood that the court has ample power relating to the affairs of the Estate of the deceased. In the instant case, the appellant, having had failed to establish the genuineness of the Will, for which probate has not been granted, was required at least to assure the Court that he would not deal with the Estate of the deceased, when by an application the respondents in the appeal had alleged that the appellant is seeking to deal with the Estate of the deceased. Once the court has jurisdiction over the Estate of the deceased and for that matter is competent to appoint an Administrator, ii would be unwise and unjust to contend that the court has no power to restrain a person from interfering with the affairs of the Estate.

(2.) THE appeal, accordingly, fails and the same is dismissed.