Case Note & Summary
The appellant, Ramchandra Ganpatrao Hande, filed a testamentary petition seeking probate of a will allegedly executed by Sushila Vithalrao Hande on 2 October 2002, in which he was named as executor. Upon the testatrix's death, he filed the petition. The fourth and fifth respondents filed a caveat and affidavit in support. The appellant then took out a Notice of Motion seeking an injunction to restrain the fourth and fifth respondents from entering upon or interfering with the immovable property of the testatrix. The respondents opposed the motion, relying on the judgment of Justice D.K. Deshmukh in Rupali Mehta v. Tina Narinder Sain Mehta, which held that in a probate petition, an injunction cannot be granted because the court's sole concern is the genuineness of the will, not the property. The learned Single Judge dismissed the motion as not maintainable, noting that the judgment does not prevent a party from seeking protection of the estate by initiating proceedings before a civil court. The appellant appealed. The Division Bench of the Bombay High Court, comprising Dr. D.Y. Chandrachud and Anoop V. Mohta, JJ., dismissed the appeal, affirming that in probate proceedings, the court's jurisdiction is limited to determining the validity of the will and does not extend to granting injunctions regarding the property. The court held that the executor or any interested party must approach the civil court for protection of the estate.
Headnote
A) Succession Law - Probate - Injunction - Indian Succession Act, 1925 - In a petition for probate, the court is only concerned with whether the will is genuine and cannot grant an injunction in relation to the property of the deceased. The party seeking protection of the estate must approach the civil court. (Paras 1-3)
Issue of Consideration
Whether an interim order of injunction can be granted in a testamentary petition for probate in relation to the property of the deceased.
Final Decision
Appeal dismissed. The order of the Learned Single Judge dismissing the Notice of Motion as not maintainable is affirmed.
Law Points
- Probate proceedings are limited to determining genuineness of will
- no power to grant injunction regarding property of deceased
- party must approach civil court for protection of estate
