Case Note & Summary
The dispute arose from the estate of Shalini Devi Ghatge, who died on 12.08.1982 leaving two wills. One will dated 06.01.1982 was propounded by the executors (plaintiffs), while the other dated 04.08.1982 bequeathed an immovable property in Vadodara to the defendants. The applicants claimed rights under agreements for sale dated 02.09.1982 executed by the defendants and were placed in possession. Testamentary petitions were filed. In 1983, a Court Receiver was appointed over the estate including the Vadodara property, and the applicants were forcibly dispossessed under court order. The applicants later sought agency of the Receiver. Criminal proceedings for interference with Receiver's possession were dismissed in 2001. On 15.04.2004, the plaintiffs and defendants filed consent terms in the testamentary petition, which discharged the Court Receiver and directed possession to be handed over to the defendants, with a further arrangement to convey the property to the respondents (who held an agreement for sale). The applicants alleged that these consent terms were collusive and fraudulent, without notice to them, and that no order of the court was passed in terms thereof. Based on representations to the Receiver, possession was delivered on 21.04.2004. The applicants then moved the present notice of motion seeking to set aside clause 4 of the consent terms and for restitution of possession under Sections 144 and 151 of the Code of Civil Procedure, 1908, along with injunctions. During hearing, the applicants did not press the prayer to declare the consent terms a nullity. The court recorded this and heard arguments on restitution, focusing on whether the applicants could be put back in possession without a final adjudication of title.
Headnote
A) Civil Procedure - Restitution - Section 144, Code of Civil Procedure, 1908 - In a motion for restitution, the party seeking relief must demonstrate dispossession under a court order and that such possession should be restored when the interim arrangement is vacated; the applicants argued that as the testamentary petition was disposed of and the Receiver discharged, they should be placed back in possession. (Paras 5, 7) B) Testamentary Jurisdiction - Title Determination - The testamentary court does not decide questions of title to property; thus, possession obtained by the Court Receiver during testamentary proceedings does not determine proprietary rights, and the discharge of the Receiver does not finally adjudicate the competing claims to possession. (Para 7(i)) C) Consent Terms - Effect - Consent terms not incorporated into a court order do not have the force of a decree; the applicants contended that no order was passed in terms of the consent terms, so the Court Receiver's discharge and direction to handover possession were not court orders, rendering the possession transfer irregular. (Paras 3, 7) D) Motion Practice - Withdrawal of Prayer - Where the applicants sought to set aside consent terms as a nullity but later conceded the maintainability challenge, they were permitted to press the remaining prayers for restitution and injunctions; the court recorded the non-pressing of prayer clause (a). (Para 6)
Issue of Consideration
Whether the applicants, who were dispossessed of the suit property by the Court Receiver appointed in testamentary proceedings, are entitled to be put back in possession under the principle of restitution after the testamentary petition is disposed of and the Court Receiver is discharged, particularly when the consent terms were alleged to be fraudulent and without court order.
Final Decision
The court recorded that the applicants were not pressing prayer clause (a) of the motion, which sought to set aside the consent terms as a nullity. The remaining prayers for restitution and injunctions were being argued.
Law Points
- Principle of restitution
- jurisdiction of testamentary court
- right to possession of person dispossessed by court's order
- Section 144 of Code of Civil Procedure
- 1908
- Section 151 of Code of Civil Procedure
- consent terms not order if not superimposed with court's imprimatur
