Namagiri Ammal vs T. Subba Rao

Rajamannar, J.—This is an application by the appellant in A.S. No. 49 of 1947 on the file of this Court for an injunction restraining the

respondent from taking possession of the properties in suit and administering the estate and effects belonging to the estate of the deceased

Srinivasa Rao in pursuance of the decree in O.S. No. 3 of 1946, District Court, Madura, pending disposal of the above appeal therefrom. The

petitioner was the defendant in a suit instituted by the respondent arising out of an application by the latter for the issue of probate of the will and

the codicil of the said Srinivasa Rao. The learned District Judge of Madura found that the will was genuine and valid and granted the respondent

probate.

This application has been made on the ground that m pursuance of the decree of the lower Court granting him probate, the respondent is

attempting to take possession of the properties forming part of the estate of the deceased Srinivasa Rao, he is also attempting to collect the

outstandings forming part of the said estate and that he is not possessed of sufficient means and to enable the appellant to recover what might

become due to her if she eventually succeeded in the appeal. I do not propose to deal with the merits of this application because in my opinion this

application is not sustainable. The application purports to be under Order 39, Rules 1 and 2 of the CPC though the omnibus Section 151 has also

been added. As the appeal is against a decree of the lower Court granting probate to the respondent, the provisions of Order 39, Rule 2 will have

no application to the case. In probate proceedings it is not correct to say that any property is in dispute. Order 39, Rule 2 has obviously no

application. As this application is filed pending an appeal it is not permissible to rely on any inherent powers this Court may possess on its original

side. If the appellant is anxious to safeguard her rights she must take other appropriate proceedings and not come by way of an application for

injunction pending the appeal.

The learned counsel for the petitioner cited to me two decisions of the Calcutta High Court. The first is In the goods of In Re: Goods of Stanley

Austin Cardigan Martin, .. In that case there was an application on the original side of the High Court for an injunction restraining proceedings

being taken pending disposal of an application for Letters of Administration. The decision of Sen, J. in that case really supports the view that I

myself am inclined to take. The learned Judge held that in a proceeding for the grant of Letters of Administration it cannot be said that there is any

property in dispute and no question regarding title to property can be decided in an application for probate or Letters of Administration. As there is

thus no property in dispute the application for injunction cannot be brought within the scope of Order 39, Rule 2. He relied upon an earlier decision

of the Court in Nerodebarani Devi v. Chamatkarini Devya (1914) 27 I.C. 617 which is the other case which was cited to me by the learned

counsel for the petitioner. The learned Judge however held that though the application could not be brought within the scope of Order 39, Rule 2

of the Code of Civil Procedure, the Court was a Chartered High Court and had inherent jurisdiction to grant an injunction operating in personam

under circumstances and conditions other than those set out in the CPC where the ends of justice so required. As I have already pointed out there

is no scope for invoking the inherent jurisdiction in support of the present application.

In Nerodebarani Devi v. Chamatkarini Devya 27 Ind. Cas. 617 it was laid down that a proceeding for probate of a will or for Letters of

Administration is not a suit in which property is in dispute and Order 39, Rule 2 could have no application to such a suit. But the learned Judges

went to hold that a Court of Probate could grant an injunction in certain circumstances and pointed out that where an injunction was necessary the

proper procedure to follow was for the aggrieved party to apply to the Court for the appointment of an administrator pendente lite u/s 34 of the

Probate and Administration Act. In that case no application under that section had been made. So the learned Judges themselves directed the

lower Court to appoint forthwith an administrator pendente lite u/s 34 of the Probate and Administration Act. The provisions corresponding to

Section 34 of the Probate and Administration Act is Section 247 of the Succession Act of 1925. Under that section pending any suit touching the

validity of the will of a deceased person 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. There is one important difference between the facts in

Nerodebarani Devi v. Chamatkarini Devya 27 Ind. Cas. 617 and the facts of the present case. In that case the application for the Letters of

Administration was still pending. There was an application in the trial Court for an injunction pending such proceeding and when that application

was refused there was an appeal to the High Court. The learned Judges were influenced to some extent by the fact that it was manifest that the

estate stood in need of immediate administration but in the present case the facts are different. The application for grant of probate which

afterwards was converted into a suit has come to a close and the learned District Judge has granted probate to the respondent. He is therefore

clothed with all authority to administer the estate. It is clear therefore that it cannot be said that the estate is without adequate representation or in

need of immediate administration by an officer appointed by Court pendente lite. In any event there is no application before me u/s 247 of the

Succession Act.

For these reasons I consider that the present application is not maintainable and dismiss it-no costs.