1. This probate proceeding has been filed by the Executor of the Last Will and
December 2019. The petitioner propounding the Will is the cousin of the
deceased. The deceased, a Hindu, was a resident of Kolkata who expired on
11 January, 2020. The Estate of the deceased includes a valuable
immovable property at Mussoorie and a flat at Salt Lake, Kolkata.
petitioner) and had been inherited by the deceased.
2. There is also a prior Will dated 14 March, 2018 claimed by the Caveator
Neeraj Khanna (a friend of the deceased). It has been contended by Neeraj
3. Then again, there is a third possibility of what were to happen in case both
Wills fail and the Estate of the deceased requires to be distributed as if the
petitioner). In this context, applications have been filed by Umesh Chamria
4. Neeraj Khanna, under the Will dated 14 March 2018 as Executor and
beneficiary has been selling, dealing, transferring and alienating portions of
5. GA 1 of 2021 and GA 3 of 2021 have been filed seeking interim protective
reliefs during the pendency of the probate proceeding. GA 6 of 2022 is filed
6. For convenience, the reliefs sought for in the above applications are set out
a. Order of injunction be passed restraining Mr. Neeraj Khanna and his men, agents
and associates from any manner of selling and/or alienating and/or dealing with
and/or disposing of and/or encumbering or causing to sell/deal/dispose
of/encumber the Mussourie and Salt Lake Properties of the deceased as disclosed
in the Affidavit of Assets;
b. Directions to be passed upon Neeraj Khanna to disclose all sale deeds entered into
and executed by him and the sale proceeds obtained in respect of sale of assets
and properties of the deceased as disclosed in the Affidavit of Assets;
c. Further order and/or order(s) as this Hon'ble Court may deem fit and proper.
GA. 3 of 2021
a. Direction upon Neeraj Khanna to forthwith deposit a sum of
Rs.6,18,37,423/- with the Registrar, Original Side, High Court at Calcutta.
b. Alternatively an order of injunction be passed restraining Neeraj Khanna
and/or his men, agents, servants and assigns from dealing with and/or
disposing of and/or cause to deal with and/or dispose of any monies lying
in the bank accounts without leaving apart a sum of Rs. 6,18,37,423/-
c. A fit and proper person be appointed as Special Officer/Receiver and the
Special Officer/Receiver so appointed be directed to do the following:-
(I) Forthwith takeover actual physical possession of the entire estate of
Anirudh Chamria, (i) Property admeasuring about 117 acres at Radha
Bhawan Estate, Mussoorie, District- Dehradun, Pin Code 248179 including
the portions of the Mussoorie Property which have been transferred under
the 23 deeds mentioned in annexure-I; and (ii) Flat no. CA 8/1 on the
ground floor of a building at Plot no. CA 8/1, Block CA, Sector-I, Salt Lake,
Kolkata-700064.
(II) Cause an inventory of all the assets of Anirudh Chamria including his bank
accounts and other movable assets and to file a report before this Hon'ble
Court.
d. An order directing the respondent be passed to forthwith disclose and
produce his bank statements for the period from 31st December, 2019(date
of illness and hospitalization of Anirudh Chamria) till now.
e. An order directing the respondent to forthwith disclose particulars of all
properties sold/transferred on the basis of the Will dated March 14, 2018
and also to disclose all conveyance/ gift and/or lease deeds executed on
the basis of the Will dated March 14, 2018 and also all other movable and
immovable assets including bank fixed deposits etc of Late Anirudh
Chamria;
f. Ad-interim orders in terms of prayers above;
g. Costs of and incidental to this application be borne by the respondent Neeraj
Khanna;
h. Such further or other order or orders be made and/or direction or directions
be given as this Hon'ble Court may deem fit and proper.
GA. 6 of 2022
a. The ad-interim order dated 1st July, 2021 passed by this Hon'ble Court be
recalled and/or vacated;
b. Stay of all further proceedings in PLA No. 88 of 2021 till the disposal of the
instant application;
c. Ad-interim orders in terms of prayers above;
d. Pass such other or further order or orders and/or give direction or directions
as this Hon'ble Court may deem fit and proper.
7. On behalf of the petitioner, it is submitted that there is a serious risk of
waste, alienation and dissipation of the Estate at the hands of Neeraj
Khanna. The incontrovertible facts reveal that Neeraj Khanna has with
undue haste been dealing with the Estate without having obtained any
Probate. The dealings by Neeraj Khanna are suspicious, unlawful and lack
bona fides. There are several instances of misconduct by Neeraj Khanna in
dealing with the Mussoorie property and claiming ownership rights in
respect thereof. There is also no embargo which prevents this Court from
granting reliefs for immediate protection and preservation of the Estate. In
support of such contentions, the petitioner relies on the decisions in Nirod
Barani Debi -vs- Chamatkarini Debi AIR 1915 Cal 565, Atula Bala Dasi and
Others -vs- Nirupama Devi and Another AIR 1951 Cal 561, Priyamvada Devi
Birla Rajendra Singh Lodha -vs- Laxmi Devi Newar & Anr. 2005 SCC Online
Cal 1723, Universal Cables Limited -vs- Arvind Kumar Newar and Ors.
Unreported decision dated 21 April, 2022 in APO/89/2010 before the High
Court at Calcutta, Heena D. Manek -vs- Mahendra T. Shah and Others 2021
SCC Online Bom 9813.
8. On behalf of Neeraj Khanna, it is submitted that both applications i.e. GA 1
of 2021 and GA 3 of 2021 are liable to be dismissed on the ground of
suppression of material facts and acquiescence. The petitioner has
suppressed that a suit had been filed by the petitioner before the District
Court at Barasat being T.S. 261 of 2021 where the petitioner had claimed
rights both in respect of the Mussoorie and Salt Lake properties. In
addition, the petitioner is estopped by acquiescence from seeking any relief
in view of the fact that he had knowledge of the registered Will dated 14
March 2018 in favour of Neeraj Khanna as far back as in February 2020
and had not contemporaneously taken any steps. In any event, in view of
the embargo under section 269 (2) of the Act, there is an express bar which
prevents the Probate Court in cases of deceased Hindus and hence no
injunction can be granted in these proceedings. There are no inherent
powers which can be invoked to grant reliefs in contravention of the
express provisions under section 269 (2) of the Act. In any event, probate of
the Will dated 14 December 2019 which has been sought for in this
proceeding is surrounded by grave and suspicious circumstances. The
Affidavit of Assets which has also been relied on by the petitioner is also
incorrect. As a result, the petitioner is estopped from claiming any right to
the Estate of the deceased. In support of such contentions, reliance is
placed on Morgan Stanley Mutual Fund vs. Kartick Das (1994) 4 SCC 225,
Kirloskar Proprietary Ltd. and Ors. vs. Kirloskar Dimensions Pvt. Ltd. and
Ors. (1999) 96 Comp Cas 726, Seema Arshad Zaheer v. Municipal
Corporation of Greater Bombay, (2006) 5 SCC 282, Ramchandra Ganpatrao
Hande v. Vithalrao Hande AIR 2011 Bom 136, Rupali Mehta Tina Narinder
Sain Mehta AIR 2007 Bom 62, Ram Prakash Aggarwal v. Gopi Krishan,
(2013) 11 SCC 296, Pasupatinath Das (Dead) vs. Chanchal Kumar Das
(2018) 18 SCC 547, Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4
SCC 300, Kavita Kanwar v. Pamela Mehta AIR 2020 SC 2614, H.
Venkatachala Iyengar v. B.N. Thimmajamma 1958 SCC Online SC 31, Kashi
Math Samsthan and Anr. v. Shrimad Sudhindra Tirtha Swamy and Anr.
(2010) 1 SCC 689, Rupinder Singh Anand v. Smt. Gajinder Pal Kaur Anand
ILR [2016] MP 1685, Clarence Pais v. Union of India, (2001) 4 SCC 325 and
Ravinder Nath Agarwal v. Yoginder Nath Agarwal AIR 2021 SC 3156.
9. It is an admitted position that Neeraj Khanna, on the basis of an
unprobated prior Will dated 14th March, 2018, has between 23rd October
2020 to 6th July, 2021, sold, leased, gifted and dealt with a portion of the
the immovable property at Mussoorie. The facts reveal that there are 23
different deeds (including sale, lease and gift deeds) which Neeraj Khanna
have been executed to his close associates and third parties which also
includes his wife. The apparent transaction value from such dealings of the
Estate is approximately Rs 6.18 crores. The details of such dealings are
more fully enumerated hereinbelow:
Sl Date of Deed Area Transaction Payment Details Updated Buyer
no. registry type (Square value (Rs.) from Neeraj ICICI a/c.
meter) 003401512510
23.10.20
1 SALE 254.27 19,07,025/- 23.10.2020 Sri KUMAR GAURAV
31.10.20
2 SALE 191.10 12,42,150/- 31.10.2020 Smt. BEENA DEVI
10.00 Lac.-10.11.2020
31.10.20 10.00 Lac.-11.12.2020
3 SALE 1181.95 89,33,448/- Sri. DHANPAL RAWAT
20 10.00 Lac.-08.01.2021
15.00 Lac.-10.02.2021
5.12.202
4 SALE 34.8 2,27,000/- 05.12.2020 Smt. KUNGRI DEVI
5.12.202
5 SALE 60.4 3,93,000/- 05.12.2020 Smt. KANTA
5.12.202
6 SALE 227.5 14,79,000/- 07.12.2020 Smt. VINITA MAITHANI
16.12.20 7.00 Lac - 17.12.2020
7 SALE 138.94 9,49,000/- Smt. REKHA RANA
20 2.50 Lac-31.03.2021
16.12.20 5.00 Lac- 17.12.2020
8 SALE 126.8 8,66,000/- Sri. KAMAL SINGH
20 3.66 Lac-04.01.2021
28.01.20 1.66 Lac - 29.01.2021 Sri. AKBAR SINGH
9 SALE 97.5 6,66,000/- CHAUHAN
21 5.00 Lac-24.03.2021
28.01.20 3.28 Lac -27.01.2021
10 SALE 127.74 8,72,000/- Sri. PANKAJ KAPOOR
21 5.44 Lac-27.01.2021
3.00 Lac - 30.01.2021
30.1.202
11 SALE 227.6 14,80,000/- 10.00 Lac-21.06.2021 Smt. PUJA BHANDARI
1.80 Lac - 21.6.2021
20.2.202
12 SALE 51.1 3,33,000/- 16.04.2021 Sri. MUKHSH KUMAR
20.03.20
13 SALE 155.5 10,62,000/- 15.06.2021 Smt. ANITA
19.06.20
14 SALE 179.5 12,26,000/- No Credit in ICICI Smt. SOORJA DEVI
Smt. NAMITA KHANNA
24.06.202
15 GIFT 2670.82 2,17,93,000/- GIFT (wife of Shri Neeraj
1 Khanna)
24.06.20 LEAS
16 1500 1000/- 50,000/- Adv Sri. DHANPAL RAWAT
21 E
24.06.20 LEAS 50,000/- Adv
17 1500 72,000/- Sri. SHUBHA SEN ROY
21 E
26.06.20 Sri. KHUSHAL SINGH
18 SALE 175.7 11,95,000/- No Credit in ICICI
29.06.20
19 SALE 396 22,18,000/- PDC Smt. EKTA NAGPAL
29.06.20
20 SALE 396 22,18,000/- PDC Smt. CHITRA KAPOOR
05.07.20
21 SALE 261.38 17,00,000/- PDC Sri. SHUBHA SEN ROY
MUSSOORIE ECO PARK
LLP incorporated on
06.07.20
22 SALE 1280 71,70,000/- PDC 29.04.2021. Partner -
21 DHANPAL RAWAT &
SHUBHA SEN ROY
06.07.20 Sri. KESHAR DAS
23 GIFT 680 38,08,000/- GIFT LUTHRA (91 YEARS OLD)
TOTAL 11,914.6 Rs.
0 6,18,10,623/-
SQM Total sale proceeds ascertained as on 06.7.2021
10. The genuineness and veracity of all the above transactions may ultimately
have to be further examined in independent and separate proceedings
which would require fuller investigation whether civil or criminal. The
calculated risk by Neeraj Khanna in not obtaining a probate
notwithstanding the fact that part of the Estate is a property situated in
West Bengal and also now that the Will dated 14 March 2018 is being
disputed are both factors in weighing the equities. To this extent, the
decision in Clarence Pais & Ors vs Union Of India (Supra) is factually
distinguishable since in that decision the properties did not fall within the
ambit of both section 57 (a) and (b) of the Act. Similarly, the decision in
Rupinder Singh vs. Smt. Gajinder Singh Pal Kaur (Supra) dealt with a
partition suit where the issue raised was as to the admissibility of an
unprobated Will and is inapplicable to this case.
11. Upon the filing of GA 1 of 2021, the petitioner had obtained an order of
injunction dated 1 July, 2021 passed by a Co-ordinate Bench whereby
Neeraj Khanna was restrained "from selling or dealing with or alienating the
Mussoorie property and the Salt Lake properties of the deceased".
Notwithstanding such order of restraint, Neeraj Khanna continued to sell,
transfer and deal with a portion of the Mussoorie property even subsequent
to 1 July, 2021. In this background, the petitioner was compelled to file a
second interlocutory application being GA/3/2021 for diverse reliefs
including the appointment of a Special Officer/Receiver, to take actual
physical possession of the Estate of the deceased and for consequential
directions. Upon Neeraj Khanna failing to deposit the sale proceeds of
Rs.6.18 crores received as consideration from the dealings with the Estate,
by an ad interim order dated 16th February, 2021, a Coordinate Bench had
also directed Neeraj Khanna to deposit with the Registrar, Original Side the
amounts received from such sale. Initially, Neeraj Khanna deposited only
Rs.1 lakh which culminated in the filing of a contempt petition being
CC/11/2023 wherein the Court found Neeraj Khanna to be prima facie
guilty of contumacious violation of the order and of suppression.
Subsequently, Neeraj Khanna deposited a sum of Rs. 88,70,000/- with the
Registrar, Original Side which is still a minuscule amount of the entirety of
the sum of Rs. 6.18 crores earned from the Estate. The bald allegation that
the money had been spent towards payment of debts and medical expenses
of the deceased is unsubstantiated and bereft of any particulars. There are
other complaints against Neeraj Khanna, which have been raised by the
petitioner. In asserting ownership over the Mussoorie property, Neeraj
Khanna has affixed his name in the said property pretending to be absolute
owner. In addition to the above, Neeraj Khanna has also sought to
substitute himself in place and stead of the deceased in proceedings before
the Rent Control Authorities (RCA/21/2018) filed by a tenant of the
Mussoorie property, one Dig Vijay Mann, pending before the District Judge,
Dehradun. Neeraj Khanna has also failed to disclose particulars of
transfers made by him despite the order dated 24 August 2021. The bank
accounts of Neeraj Khanna on and from 31 March to December 2019 reflect
that sums received from the Estate have also not been disclosed. The most
glaring feature of the transactions enumerated above which has been
assailed is the gift executed by Neeraj Khanna in favour of his wife Smt.
Namita Khanna. The conduct of Neeraj Khanna in dealing with the
Mussoorie property which is of considerable magnitude makes out a more
than sufficient prima facie case for grant of protective reliefs. Why the
frantic hurry? All these facts raise more than a lurking doubt as to the
bona fides and conduct of Neeraj Khanna.
12. No Executor can be permitted to have an unfettered, unsupervised and
absolute discretion when acting in the capacity as an Executor. Centuries
ago Lord Kenyon had observed "Let the executors do their duty and let their
authority cease when injustice begins." (Watpins vs. Cheek, 25 E.R. 181).
There is always a fiduciary duty owed by an Executor. The actions of an
Executor must be bonafide and in the interests of the Estate. This involves
a degree of honesty and good faith. It is also well settled that no one can
profit from a fiduciary position. The absolute nature of the duty which an
Executor has to perform does not provide for any equitable allowance. The
conduct of Neeraj Khanna suggests that there is a serious risk of the Estate
being wasted, alienated and dissipated. The hot haste with which Neeraj
Khanna has transferred, dealt with and created third party rights would
ultimately make the entire exercise of the Probate Court fruitless and
render the same nugatory. Prima facie, it is the fiduciary duty of the
Executor and the breach of trust which has been violated by Neeraj
Khanna. No disposition which is founded on fraud or a transaction
amounting to breach of trust deserves to be protected. All these issues
would require fuller examination in a separate and independent proceeding.
Then again, it is a matter of policy to protect third parties who might be
innocently trapped on the basis of the acts of Neeraj Khanna whose right is
yet to be finally determined.
13. For convenience, the relevant provisions of law necessary for the
adjudication of the present applications are set out below:
57. Application of certain provisions of Part to a class of wills made by
Hindus, etc. -The provisions of this Part which are set out in Schedule III
shall, subject to the restrictions and modifications specified therein, apply--
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or
after the first day of September, 1870, within the territories which at the said
date were subject to the Lieutenant-Governor of Bengal or within the local
limits of the ordinary original civil jurisdiction of the High Courts of Judicature
at Madras and Bombay; and (b) to all such wills and codicils made outside
those territories and limits so far as relates to immoveable property situate
within those territories or limits; (c) to all wills and codicils made by any
Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to
which those provisions are not applied by clauses (a) and (b):] Provided that
marriage shall not revoke any such will or codicil.
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.
266. District Judge's powers as to grant of probate and administration.-The
District Judge shall have the like powers and authority in relation to the
granting of probate and letters of administration, and all matters connected
therewith, as are by law vested in him in relation to any civil suit or
proceeding pending in his Court.
268. Proceedings of District Judge's Court in relation to probate and
administration.-The proceedings of the Court of the District Judge in relation
to the granting of probate and letters of administration shall, save as
hereinafter otherwise provided, be regulated, so far as the circumstances of
the case permit, by the Code of Civil Procedure, 1908.
269. When and how District Judge to interfere for protection of property.-(1)
Until probate is granted of the will of a deceased person, or an administrator
of his estate is constituted, the District Judge, within whose jurisdiction any
part of the property of the deceased person is situate, is authorised and
required to interferefor the protection of such property at the instance of any
person claiming to be interested therein, and in all other cases where the
Judge considers that the property incurs any risk of loss or damage; and for
that purpose, if he thinks fit, to appoint an officer to take and keep
possession of the property. (2) This section shall not apply when the
deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted
person, nor shall it apply to any part of the property of an Indian Christian
who has died intestate.
295. Procedure in contentious cases.-In any case before the District Judge in
which there is contention, the proceedings shall take, as nearly as may be,
the form of a regular suit, according to the provisions of the Code of Civil
Procedure, 1908 (5 of 1908.) in which the petitioner for probate or letters of
administration, as the case may be, shall be the plaintiff, and the person who
has appeared to oppose the grant shall be the defendant.
14. In this context, clause 34 of the Letters Patent, 1865 is as follows:
"34. Testamentary and intestate jurisdiction.- And we do further ordain
that the said High Court of Judicature at Fort William in Bengal shall
have the like power and authority as that which may now be exercised by
the said Supreme Court, whether within or without the Bengal Division of the
Presidency of Fort William, in relation to the granting of probates of last wills
and testaments, and letters of administration of the goods, chattels, credits,
and all other effects whatsoever, of persons dying intestate, whether within
or without the said Bengal Division Matrimonial Jurisdiction."
15. Chapter XXXV Rule 28 of the Original Side Rules also provides as follows:
28. Procedure on affidavit being filed. - Upon the affidavit in support of the
caveat being filed (Notice whereof shall immediately be given by the caveator
to the petitioner), the proceedings shall, by order of a Judge upon application
by summons be numbered as a suit in which the petitioner for probate or
letters of administration shall be the plaintiff, and the caveator shall be the
defendant, the petition for probate or letters of administration being registered
as and deemed a plaint filed against the caveator, and the affidavit filed by
the caveator being treated as his written statement in the suit. The procedure
in such suit shall, as nearly as may be, be according to the provisions of the
Code. (Forms Nos. 14 and 15).
16. In terms of section 269 (1) of the Act, powers have been granted to the
Probate Court to grant limited orders for protection of the property from
any risk, loss or damage. However, the embargo under section 269 (2)
makes it abundantly clear that the same would not apply when the
deceased is a Hindu. To this extent, section 269 (2) of the Act precludes
exercise of powers under section 269 (1) in case of one of the excepted
categories.
17. In Nirod Barani Debi -versus- Chamatkarini Debi (Supra), it has been held
that the Probate Court is not incompetent to grant a temporary injunction.
18. In Atula Bala Dasi & Ors. Vs. Nirupama Devi & Anr. (Supra) it has been held
as follows:
7. 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 Sections 247 & 269 of the Succession Act. Even where
the exercise of the powers given to the probate court under Section
247 of the 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 NirodBarani 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 of the CPC, 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, 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."
19. In Priyamvada Devi Birla, Rajendra Singh Lodha vs. Laxmi Devi Newar &
Anr. (Supra) it has also been held as follows:
"36. The Probate Court, apart from the provision of the said Act,
has inherent power to pass suitable interim order for protection
and preservation of the properties, as so long the probate
proceeding remains pending the properties really remains in the
hands of the Court. It is true as it appears from the judicial
pronouncement cited by the learned Counsels at the bar in order to
pass any interim order relating to the administration of the estate,
case of necessity has to be established. In my view, the case of
necessity is not only looked from the statement and averment of
the petition above but also from the mere fact of enormity of the
estate and the nature of the disposition made by the testatrix.
From the provision of the Will the Court itself may feel necessity in
order to protect and preserve the estate for passing interim order. It
is not the feeling of the parties to the proceeding matters, what
matters, is Court's sense of insecurity of the estate of deceased.
From the affidavit of assets furnished by the propounder/Lodha it
appears properties are of different character and nature namely
majority shareholding of core companies of the M.P. Birla Group,
co-ownership in the immovable property. Apart from the immovable
properties other properties are not very specific because the shares
themselves cannot be termed to be a property but the value
represented by these shares is in real sense the property. This
value is liable to be fluctuated depending upon the stock exchange
market if the shares are quoted but in case of unquoted ones it
depends upon the profitability and viability of the company
concerned. Necessity of passing interlocutory order regulating
management and control in relation to the fixed assets, real
properties, must be founded on a stronger ground and as the
ascertained properties with their ascertained income can easily be
managed and controlled and even the properties are left at the
hands of the executors for it is unlikely the same can be wasted or
damaged. But in case of the property value of which is volatile in
nature necessity may arise and the supervision and vigilance of
the Court, may be called for its protection and preservation. This
necessity may be felt in a case where there has been serious
challenge against the Will in the probate proceeding and further
and in particular where the executor himself is beneficiary. Human
mind is very flexible in nature and in any moment for his own
interest executor/sole legatee can change his mind forgetting his
obligation to the estate vis-a-vis the Court, particularly if though
occurs in his mind that probate is unlikely to be granted, it is not
impossible for him to destroy, misappropriate or dissipate for his
own interest. The Probate Court cannot afford to take even remote
or possible risk and cannot wait till the grant of the probate. But
balance between convenience and inconvenience is to be weighed
in the interest of the estate particularly where a vast portion
whereof concerns with running companies and business and it has
significantly contributory role to the nation's economy. In the
petition, I do not find any allegation of mismanagement,
destruction and devastation of the estate only an allegation has
been made that a jute mill is sought to be closed and the same is
sought to he shifted. Explanation has been given by Lodha in his
separate application stating that for economic viability of the above
jute mill the said decision was taken to shift the jute mill at a
different place as the existing site does not have any scope for
expansion. Unless it is expanded the viability of the company
cannot be maintained, however, the workmen concerned did not
understand this root problem, so they became agitated and
company had not option but to suspend the business. So, I think,
keeping in view the interest of the group of companies on the one
hand and to safeguard the interest of the estate of the deceased
lady on the other hand slightly regulatory measure is to be taken.
It is suggested by Mr. S.B. Mukherjee, Mr. S. Pal and S.P. Sarkar
that status quo as regards composition of Board of Directors as on
today shall be maintained. I think, if this restrain order is passed
the Board of Directors cannot function independently, consequently
the company cannot be run freely. If any of the Board of Directors
commits any misconduct or incur any disqualification he cannot be
legitimately removed from the Board. Under these circumstances
this restrain order is not passed considering the situation in the
share market, which is very volatile in nature. This form of
suggestion is not accepted by the Court. However, it is made clear
in the event any step is taken for removal of any of the Directors
only prior seven days notice shall be served upon the defendants. I
direct the propounder by his controlling shareholding shall not
move any resolution nor support any resolution aiming to sell,
incumber any assets of the M.P. Birla group of companies nor
closure thereof, without express leave of the Court. The propounder
shall also, maintain status quo in relation to the other properties."
20. In Universal Cables Limited -versus- Arvind Kumar Newar and Ors (Supra),
it has been held as follows:
"106. Issue 1. ii) - Third party injunctions can be granted in
exceptional cases by the Probate Court, for the limited purpose
of protecting the Estate. However, the internal affairs of third
party, companies cannot, under normal circumstances, be
interdicted by a Probate Court.
107. This sub issue relates to third party injunction which can
ben further sub-divided and the power of the court to grant
injunction is also required to be considered. In Nirod Barant
Debi Versus Chamatkarini Debi 159, the Hon'ble Division
Bench held that it is essential for application of Order 39 Rule 1
CPC that the property dispute in the suit is in danger of being
wasted, damaged or alienated by a party of wrongfully suit in
execution of a decree. Consequently, the application for
injunction must satisfy the court that the proceedings is a suit in
which there is property in dispute and the property is in danger
of being wasted, damaged or alienated. It was further held that
the question, consequently, arises whether the proceedings for
the probate of a will or for letters of administration may rightly
be held to be a suit in which the property is in dispute. In the
opinion of the Court, the answer was in the negative. After
referring to several other decisions, it was held that the only
question in controversy in a proceeding in a probate court is that
of representation of the estate of the deceased and no question
of title thereto, i.e., the title of deceased or the conflict in title
alleged by the parties to the probate proceedings can be
investigated by the court. Further the court held that they do not
lay down the proposition that the court is not competent,
because it is a probate court to grant injunction in any
circumstances. It was held that the proper procedure to follow in
cases of this description is for the aggrieved party to apply to
the court for the appointment of an administrator pendente lite
(APL) under Section 34 (present Section 247). It was further held
that by virtue of the provision by which the administrator
pendente lite is appointed, they take charge of the entire estate
of the deceased. lt was further held that when it is brought to
the notice of the court that a party in possession is about to deal
with the movable properties; unless an injunction is granted, the
appointment even of an administrator pendente lite may become
fruitless, under such circumstances, the court has ample
authority either under the statutory powers or in the exercise of
its inherent jurisdiction to make a temporary order so as not to
defeat the ultimately order which the court is competent to
make. In Atula Bala Dasi and Ors. -Versus- Nirupama Devi and
Anr. 160, it was held that it is open to the probate court not only
to appoint an administrator pendente lite (APL) But also to issue
an order of injunction, temporary in character, pending the
appoint of administrator pendente lite and if such power are
exercised in probate cases by the probate court, there is no
reasonable chance, of any property being dissipated pending
the actual grant of probate or the appointment of an
administrator."
21. The above decisions make it clear that there is considerable authority for
the Probate Court exercising inherent powers to pass suitable orders for
protection and preservation of the Estate. The underlying logic being that
the Probate Court is bound to preserve the assets of the Estate so that the
same can be finally distributed. If the Estate is frittered away, what is left
to Assent in case probate is ultimately granted? It is also apparent from the
stand of the different parties that the instant testamentary proceedings
have for all purposes assumed the form of a regular suit wherein the
petitioner would be the plaintiff and the caveator, the defendant. In this
background, section 295 of the Act is also triggered where the Court would
be entitled to exercise all powers under the Code of Civil Procedure 1908.
The ambit of the words "all matters connected therewith" includes the
powers to grant interim orders which is a necessary adjunct of the power of
a Civil Court.
22. To this extent, the decision in Ramchandra Ganpata Rao Handey (Supra) is
distinguishable and inapposite. In the said decision, though reference was
made to Atula Bala Dasi (Supra) and the proposition of law enumerated
therein was accepted, the same was sought to be distinguished on the
ground that such powers can only be exercised pending appointment of an
Administrator pendente lite. Notably, a subsequent Division Bench of the
High Court at Bombay in Manek Dara Sukhadwalla -vs.- Shernaz Faroukh
Lawyer (Supra) has held that the Probate Court while exercising
testamentary jurisdiction retains its inherent and plenary powers and can
also pass orders directing filing of a criminal complaint. (Para 37).
23. Regardless of the question of whether or not the Probate Court has
inherent powers, it is clear from section 247 of the Act, the remedy for
appointment of an Administrator pendente lite is expressly provided for
where the grounds for such protective reliefs are made out.
24. It is an admitted fact that there are counter cases and uncertainties
surrounding the question of the genuineness and the validity of the rival
Wills which are yet to be adjudicated upon. The presence or non-presence
of suspicious circumstances are all triable issues which would also be
ultimately adjudicated upon at the final hearing. During the interregnum,
any risk to the Estate of the deceased would necessarily justify protective
reliefs.
25. It is the facts of this case, at this prima facie stage which manifests that the
Estate is in need of immediate and dire administration. There is a real and
serious risk that the Estate would further be alienated, dissipated and dealt
with during the pendency of these proceedings and by the time the
question of genuineness of the Will or rival claims are actually decided. It is
also true that any question of title i.e. title of the deceased or of conflicting
titles cannot be investigated into by the Probate Court. Undoubtedly, the
Probate Court is ultimately concerned with the question as to whether the
Will has been duly executed and attested in accordance with law and
whether at the time of such execution the testator was of a sound disposing
mind. Nevertheless, the Estate cannot be dissipated in the meantime.
26. There is also no merit in the contention of delay or acquiescence raised by
the Caveator. In this context, the decisions in Morgan Stanley Mutual Fund
vs. Kartick Das (Supra), Kirloskar Proprietary Ltd. and Ors. vs. Kirloskar
Dimensions Pvt. Ltd. and Ors. (Supra) are factually distinguishable and
inapposite. Similarly, the point of suppression insofar as the Title Suit
being T.S. No.261 of 2021 filed in the District Court at Barasat is
concerned is also without basis. A party may sue in dual capacities. The
cause of action in the Barasat suit pertains to the claim of the petitioner as
inheritance from Gomti Sethani. Both causes of action are distinct and
separate. In this context, the decisions in Dalip Singh -vs.- State of Uttar
Pradesh (Supra) and Indian Bank -vs.- Satyam Fibres (India) Private Limited
(Supra) are distinguishable. In both these decisions, the Hon'ble Supreme
Court was compelled to invoke inherent powers in view of the gross and
blatant fraud which had been practised on Court.
27. In the above circumstances, to preserve equities and ensure that the
Probate Court is not presented with a fait accompli with third party rights,
the Estate must be protected and cannot be allowed to be dissipated. The
petitioner has been able to make out a strong prima facie case on merits.
The balance of convenience and irreparable injury is also in favour of
orders being passed. There is a serious threat to the Estate of the deceased
in the hands of Neeraj Khanna who prima facie has acted in a manner to
put the Estate at risk. Insofar as the prayer for a Special Officer is
concerned, making a separate application for an Administrator pendente
lite would be an idle formality. To this extent, the Court has sufficient
powers to mould the reliefs prayed for. Accordingly, the prayer for
appointment of a Special Officer/ Receiver be treated as one for
Administrator pendente lite.
28. In view of the above, GA 1 of 2021 and GA 3 of 2021 stand allowed. The ad
interim order dated 1 July 2021 stands confirmed. There shall also be an
order in terms of prayer (a) of GA 3 of 2021 (after giving credit for the
amount deposited and lying with the Registrar, Original Side). Mr.
Prabhabhar Chowdhury, Advocate and a member of the Bar Library Club is
appointed as Administrator pendente lite at a monthly remuneration of
3000 gms (and all incidental expenses) to be paid by the petitioner at the
first instance which would be ultimately adjusted with the funds, assets
and properties of the Estate before distribution. There shall be also an
order in terms of prayers c(i) [(excluding the 23 transactions details whereof
have been enumerated in para 9 above for which liberty is granted to file
separate and independent proceedings in accordance with law pertaining
thereto)], c (ii), (d) and (e) of GA 3 of 2021. GA 6 of 2022 stands dismissed.
(Ravi Krishan Kapur, J.)
Later:
After pronouncement of the judgment, Mr. Utpal Bose, Senior Advocate
appearing on behalf of the caveator Neeraj Khanna prays for stay of operation of
the order. The prayer for stay is considered and rejected.
(Ravi Krishan Kapur, J.)
