Calcutta High Court
Jabir Haque Molla vs Sabina Afreen on 24 November, 2022
1
OD- 10
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
IA NO. GA/3/2022
In TS/2/2020
IN THE GOODS OF :
ABDUL HALIM GAZNAVI MOLLA @ A.H. GAZNAVI MOLLA (DEC.)
-AND-
JABIR HAQUE MOLLA
-VS-
SABINA AFREEN
BEFORE :
The Hon'ble JUSTICE KRISHNA RAO
Heard On : 21.11.2022
Order On : 24.11.2022
Appearance:
Mr. A. C. Kar, Adv.
...For the plaintiff
Md. Shafiul, Adv.
...For the defendant
ORDER
The defendant has filed the instant application praying for the following
reliefs :
"(a) An order restraining, the pretended executor Jabir Haque Molla and
his associates, Nasir Haque Molla and Mustaque Haque Molla or any other
party or parties to the instant T. S. No. 2 of 2020 and or their men and
agents from undertaking any constructions or repair at the Flat Nos. 26, 31
and 32, in 'Wachel Molla Mansion', at No. 8, Lenin Sarani, Kolkata - 700
013.
(b) to restrain the said Jabir Haque Molla and his associates, Nasir Haque
Molla and Mustaque Haque Molla or any other party or parties to the
instant T.S. No. 2 of 2020 and or their men and agents from interfering in
any way with the joint possession of the petitioner and members of her
family in the said Flat Nos. 26, 31 and 32, in 'Wachel molla Mansion', at
No. 8, Lenin Sarani, Kolkata - 700 013.
(c) An order allowing the petitioner and members of her family to occupy
temporarily any of the said Flat Nos. 26, 31 and 32, in 'Wachel Molla
Mansion', at No. 8, Lenin Sarani, Kolkata - 700 013 at least on medical
necessities.
(d) An order restraining, the pretended executor Jabir Haque Molla and his
associates, Sahir Haque Molla, Nasir Haque Molla and Mustaque Haque
Molla or any other party or parties to the instant T.S. No. 2 of 2020 from
transferring any part or portion of the immovable properties belonging to
the estate of the deceased A. H. Gaznabhi Molla withot first obtaining
permission from this Hon'ble Court."
Learned Counsel for the defendant submits that the defendant no.1 is
daughter of the deceased Abdul Halim Gaznavi Molla. The deceased died
leaving his wife, one daughter and four sons. The mother of the defendant died
on 7th May, 2021.
Learned Counsel for the defendant submits that the father had executed
his last Will and Testament on 16th August, 2015 wherein the defendant no.1
has been named as executor of the said last Will but the defendant had been
advised not to seek probate of the said Will.
Learned Counsel for the defendant submits that one of the brother of the
defendant namely, Jabir Haque Molla had filed the instant suit claiming
himself as the executor of the purported Will dt. 13th May, 2015 which is not
the last Will and Testament as the defendant is having the Will dt. 16th August,
2015.
It is further contended that the plaintiff by treating himself as an
executor of the alleged Will dt. 13th May, 2015 along with other legal heirs of
the deceased deprived the plaintiff from enjoying the benefits of her lawful
shares in the estate of the deceased father, including the estate of her deceased
father which is not covered under the alleged Will.
Learned counsel for the defendant further submits that the defendants
and others have filed an earlier suit being C.S. No. 185 of 2017 with respect of
the other joint properties in which an application was filed for appointment of
receiver and the plaintiff had participated in the said suit but the plaintiff had
not disclosed the existence of alleged Will.
Learned counsel for the defendant further submits that the Flat Nos. 26,
31 and 32 in "Wachel Molla Mansion" are the part of the estate left by the
deceased father and the said three residential flats are lying vacant and rarely
the said flats were used when the parties visit Kolkata. In the month of
December, 2020 when the plaintiff required to stay in Kolkata for treatment of
her daughter in law, surprisingly found that some construction work over the
said flats were going on and sons of the defendants were not allowed to enter in
the said flats, the sons of the plaintiff have lodged a complaint on 25.12.2020
at the police station.
Learned Counsel for the plaintiff further submits that the plaintiff came
to know that the brothers of the plaintiff have transferred about 2 Cottaha 3
Chhitak of land for a total sum of Rs. 4,00,000/- by way of two illegal deed of
sale to the third party without the knowledge and without the consent of the
plaintiff.
Learned Counsel for the defendant submits that the defendant has not
filed an affidavit-in-opposition to the instant application but the plaintiff is
raising the maintainability of the instant application on the ground that
probate Court cannot grant injunction, the Probate Court cannot decide the
title and the Court cannot see whether any construction is going on the
property and in the probate proceeding only the Court has to ascertain with
regard to genuinity of the Will.
Learned Counsel for the plaintiff further submits that the defendant has
admitted that she is not in occupation of the property and by way of injunction
the defendant prays for possession of the property which cannot be granted by
the probate Court.
Learned Counsel for the plaintiff has relied upon the Judgment reported
in AIR 1954 SC 280 (Ishwardeo Narayan Singh -versus- Smt. Kamta Devi and
Others) and AIR 2008 SC (Supp) 1663 (Krishna Kumar Birla -versus- Rajendra
Singh Lodha & Others).
Heard the learned counsel for the parties, perused the pleadings,
documents and the judgment relied by the plaintiff.
The plaintiff has filed an application for grant of probate and on receipt of
the objection from the caveator, the application is converted to suit.
The defendant has challenged the Will on the ground that the alleged Will
is not the last Will as the defendant is having the last Will of the deceased
wherein the defendant was appointed as an executor but the defendant did not
seek for probate of the said last will. The defendant has filed the instant
application praying for interim injunction against the property left behind by
the deceased as the plaintiff and other brothers are not allowing the defendant
to enter into the property and the plaintiff and the other brothers have also
executed sale deed of some of the property in favour of the third party.
In the case of Ishwardeo Narain Singh (Supra), the Hon'ble Supreme
Court has categorically held that :
"The Court of Probate is only concerned with the question as to
whether the document put forward as the last will and testament of a
deceased person was duly executed and attested in accordance with law
and whether at the time of each execution the testator had sound
disposing mind. The question whether a particular bequest is good or bad
is not within the purview of the Probate Court. It is surprising how this
elementary principle of law was overlooked by both the Courts below.
However, as learned counsel appearing for the respondents has not sought
to support this ground nothing further need be said on that."
In the case of Krishna Kumar Birla (Supra), the Hon'ble Supreme Court
held that :
"59. The 1925 Act in this case has nothing to do with the law of
inheritance or succession which is otherwise governed by statutory laws
or the custom, as the case may be.
It makes detailed provisions as to how and in what manner an application
for grant of probate is to be filed, considered and granted or refused.
Rights and obligations of the parties as also the executors and
administrators appointed by the court are laid down therein. Removal of
the existing executors and administrators and appointment of
subsequent executors are within the exclusive domain of the court. The
jurisdiction of the Probate Court is limited being confined only to consider
the genuineness of the Will.
A question of title arising under the Act cannot be gone into the
proceedings. Construction of a Will relating to the right, title and interest of
any other person is beyond the domain of the Probate Court."
In the instant case, the alleged Will is executed by the father in favour of
the plaintiff. The defendant is the objector of the Will relied by the plaintiff. It is
the specific case of the defendant that during the life time, the father had
executed Will on 16th August, 2015 that is subsequent to the alleged Will dt.
13th May, 2015. It is also the case of the defendant that three flats are lying
vacant and whenever it is necessary the legal heirs of the deceased are using
the said flats. It is also the case of the defendant that the plaintiff and other
brothers have already executed sale deed with respect of some property in
favour of the third party.
In the case reported in (2016) SCC Online Cal 1541 (Priyamvada Devi
Birla -versus- Harsh Vardhan Lodha & Ors.), the Coordinate Bench of this
Court held that :
"109. While deciding a contentious cause relating to a probate
Proceeding the only and/or primary duty of the Probate Court is to examine
the genuineness of the Will, and while examining the genuineness of the Will,
the Court is required to consider (i) as to whether the will was duly executed
by the testator and/or testatrix consciously or not; (ii) Whether the execution
of the Will by the testator and/or testatrix was duly attested by two
witnesses or not; (iii) Whether there was any suspicious circumstances under
which the Will was executed by the testator or the testatrix unconsciously and
(iv) whether the Will is the last Will of the testator or not.
146. Mr. P Chidambaram, learned Counsel appearing for the applicants,
however, refuted such submission of Mr. Mitra by contending that the Probate
Court's jurisdiction to pass appropriate injunction order to protect the estate of
the deceased is well-recognized by this Court as well as by the other High
Courts. To substantiate his aforesaid submission he has relied upon the
following decisions:- (i) In the case of Nerodebarani Debi v. Chamatkarin
Devya reported in AIR 1915 Calcutta 565, (ii) In the case of Atula Bala
Dasi v. Nirupama Devi reported in AIR 1951 Calcutta 561, (iii) In the case
of Amarendra Dhwaj Sing v. Prem Kumar Singh Reported in 2013 (1) PLJR
853, (iv) In the case of Sri. Karmajit Jaiswal v. Investec Trust (Jersey)
Limited Reported in 180 (2011) DLT 15. Relying upon the aforesaid decision
of different High Courts Mr. Chidambaram, Learned Senior Counsel submitted
that the Probate Court has the jurisdiction to pass interim order of injunction
though such power cannot be exercised under Order 39 rules 1 and 2 of the
Code of Civil Procedure but such power can be exercised by the Court under
its inherent jurisdiction under Section 151 of the Code of Civil Procedure. By
referring to the judgment of the Delhi High Court in the case of Sri. Karmajit
Jaiswal v. Investec Trust (Jersey) Limited (supra) Mr. Chidambaram
submitted even the Court's power to grant injunction against third party is
recognized by the Delhi High Court in the said decision.
147. Let me now consider the submission made by the learned Counsel
appearing for the parties and the decision cited at the bar. I have perused all
the decision cited by learned Counsel appearing for the parties and the
decision cited by the learned Counsel appearing for the respective parties as
referred to above very minutely. On perusal of those judgments passed by
different High Courts, I have no hesitation to hold that the Probate Court has
jurisdiction to pass interim order of injunction in exercise of its inherent
jurisdiction in appropriate cases where the Probate Court finds that pending
appointment of an administrator pendente lite there is any chance of the asset
of the deceased being dissipated. In all these decisions, I find injunction was
granted by the Probate Court against parties to the proceeding. Even the Delhi
High Court decision which was relied upon by Mr. Chidambaram to
demonstrate that injunction can also be passed against a third party, in my
view, is not the correct reading of the said judgment, by Mr. Chidambaram.
On perusal of the facts of the said case it appears to me that injunction was
granted against a party to the proceeding who was the objector in the probate
proceeding. The objector was not a stranger to the probate proceeding. As
such the said decision cannot be accepted as a judgment lying down the
proposition of law that Probate Court can pass an injunction against a
stranger."
In the judgment referred by the Counsel for the plaintiff no where it is
held that the Probate Court cannot pass an interim order and thus the
judgment referred by the Counsel for the plaintiff is distinguishable and the
judgment reported in the case of Priyamvada Devi Birla (Supra), this Court has
decided the issue that the Probate Court has the power to pass an interim
order.
In view of the facts and circumstances of the case, this Court finds that
to preserve the property till the disposal of the suit, an order of injunction is
required to be passed. Accordingly, the plaintiff is restrained form alienating
and creating any third party interest over the property of the deceased Abdul
Halim Gaznavi Molla till the disposal of the suit.
G.A. No. 3 of 2022 is thus disposed of.
(KRISHNA RAO, J.)
p.d
