Bombay High Court

BHARAT KANTIALAL DALALversusSURENDRA KANTILAL DALAL AND 32 ORS.

Decided: 8 January 2026
Disposal: DISPOSED OFF
Bench: R I CHAGLA

Holding

A civil suit for administration of the estate is maintainable notwithstanding pending probate proceedings, as the civil court’s jurisdiction is limited to administration and protection of the estate, not to adjudicating the validity of the will.

Summary

The plaintiff, an executor of a 1994 will, filed a suit seeking administration of the deceased’s estate and, alternatively, administration on intestacy. The defendant‑original (Def. 5) moved to dismiss the suit under Order 7 Rule 11 of the CPC, arguing that the probate court alone decides the validity of wills and that the civil court lacks jurisdiction to grant administration. The court examined the statutory scheme under the Indian Succession Act and the exclusive jurisdiction of probate courts over will validity, but held that a civil suit for administration of the estate is maintainable even while probate proceedings are pending. It ruled that the plaintiff’s request for protection and administration of the estate does not intrude on the probate court’s domain, which is limited to determining the will’s genuineness. Consequently, the notice of motion was rejected and a stay was granted on the order for four weeks. The suit will proceed concurrently with the probate petition.

Issues considered

The maintainability of a civil suit for administration of an estate when the plaintiff is an executor and probate of the will is pending.
Whether the civil court can grant administration of the estate without first determining the validity of the will.
The effect of alternative prayers for administration on intestacy in the same suit.
The applicability of Order 7 Rule 11 CPC to dismiss the plaint.

Legislation cited

Code of Civil Procedure, 1908 — s. Order 22 Rule 10, Order 7 Rule 11
Indian Succession Act, 1925 — s. 211, 213, 269, 30

Subjects

Administration of estate
Probate jurisdiction
Will validity
Civil court jurisdiction
Order 7 Rule 11 CPC
Indian Succession Act
Executor
Intestacy
Alternative pleas

Judgment

nms-954-2019.doc
jsn

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO.954 OF 2019
Digitally
IN
signed by
JITENDRA
JITENDRA SHANKAR
SUIT NO.807 OF 2018
SHANKAR NIJASURE
NIJASURE Date:
2026.01.08
18:34:28
+0530 Chetan Dalal … Applicant /
Ori. Defendant
No.5.
In the matter between
Bharat Kantilal Dalal …Plaintiff

Versus

Surendra Kantilal Dalal and 32 Ors. …Defendants
----------
Mr. Haresh Jagtiani, Senior Counsel with Mr. Yashpal Jain, Jahnavi
Vora, Pranay Kamdar for the Applicant in NMS No.954 of 2019 –
Defendant No.5.
Mr. Karl Tamboly, Mr. Malcolm Siganporia, Ms. Monisha Mane
Bhangale, Mr Ashutosh Agarwal and Ms. Bijal Vora i/b. Parinam Law
Associates for the Plaintiff.
Mr. Vaidehi Bhatt i/b. Mehta and Padamsey for Defendant Nos.2 to
4.
----------

CORAM : R.I. CHAGLA J.

Reserved on : 25TH AUGUST, 2025.
Pronounced on : 08TH JANUARY, 2026.

O R D E R :-

1. By this Notice of Motion the Applicant / Original

Defendant No. 5 has sought for rejection of the Plaint under Order

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VII Rule 11 read with Section 151 of the Code of Civil Procedure

(CPC), 1908. The Applicant has also sought an alternate prayer viz.

that till the final disposal of the proceedings for probate of the Will

dated 21st May, 2012 read with Codicil dated 11th September, 2015

and 8th December, 2016 being Testamentary Petition No. 812 of

2017 pending before the Testamentary / Probate Court, this Court

stay the above Suit and proceedings arising thereunder including the

present Notice of Motion Lodging No. 2606 of 2017.

2. The Applicant has stated that the Plaintiff has filed the

Captioned Suit inter-alia seeking administration of the Estate of the

deceased in terms of the Will dated 24th September, 1994 (“Will of

1994”) which he claims to be the last Will and Testament of the

deceased and under which he and Defendant No. 1 are claimed to

have been appointed as the Executors of the Estate of the deceased. It

is further stated that the Plaintiff has disclosed in the above Suit that

the Applicant has propounded a Will dated 21st May, 2012 along with

Codicil dated 11th September, 2015 and 8th December, 2016 as the

last Will and Testament of the deceased, under which the Defendant

No. 6 herein and the Applicant / Original Defendant No. 5 have been

appointed as the Executors and further that a Testamentary Petition

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for grant of probate of the said Will of 2012 has already been filed by

the Applicant before the Probate / Testamentary Court.

3. The Applicant has stated that in the present Suit, the

Plaintiff has inter alia sought for administration of the Estate of the

deceased and in the alternative has prayed that in the event the said

Will of 1994 is held to be not valid, then the Estate of the deceased

be administered as per inter-state succession. It is claimed that the

Plaintiff along with 22 others are equal beneficiaries of the Estate of

the deceased as per inter-state succession.

4. Mr. Haresh Jagtiani, learned Senior Counsel appearing

for the Applicant has submitted that once a Plaintiff propounds a Will

and files for probate he must necessarily administer the Estate as an

Executor especially since he has not relinquished his executorship.

This necessity implies that the Plaintiff / Executor cannot delegate his

role to this Court by seeking a declaration to administer the Estate of

the deceased. He has submitted that the delegation, if at all, to this

Court is possible only if the Plaintiff who is also a beneficiary /

legatee under the said Will of 1994 which he propounds categorically

makes out a case of him being incompetent as an Executor or having

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given up his execution. He has submitted that such is not the cause of

action in the present Suit. Accordingly, the Plaintiffs’ right to

administer the Estate in accordance with the said Will of 1994 is to

be determined exclusively by the Testamentary / Probate Court and

the doors of a Civil Court are shut for him since the Testamentary /

Probate Court alone has exclusive jurisdiction to determine such an

issue.

5. Mr. Jagtiani has submitted that any Suit which is

founded and / or based on bequest under the Will is maintainable

only after the decision of the validity of the Will is rendered. In the

instant case, Prayer Clause (a) precisely pertains to and emanates

from the said Will of 1994 propounded by the Plaintiff.

6. Mr. Jagtiani has submitted that it is settled law that only

after the decision on the validity of the Will by the Probate Court is

established can the Will in question be admitted in evidence and

taken into consideration by the Civil Court. He has submitted that

this proposition is fully supported by the decision in the case of

Satula Devi vs. Rajeev Sharma and Ors 1., at Paragraphs 87 (v), (vi),

(vii), 97, 99 to 104.

1 2023 SCC Online Del 2066

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7. Mr Jagtiani has submitted that the issue of a Suit for

administration of Estate of the deceased being maintainable at the

instance of a Plaintiff who has propounded a Will (in this case the

Will of 1994) and has infact filed for probate of the said Will as an

Executor thereof, which is still pending before the Testamentary

Court, is maintainable, has been considered in judgments of the

Supreme Court as well as other High Courts including this Court. He

has relied upon the following judgments:

(i) Chiranjilal v. Jasjit Singh – (1993) 2 SCC 507 –

Exclusive jurisdiction of Probate Court – civil court

sitting in its ordinary civil jurisdiction has no jurisdiction

to grant or revoke probate [Paragraphs 15, 16, 18 & 20];

(ii) Mohamed Renu Mia v. SabitaKhatoon – (1918)

CWN V XXIII 658 – It is for the Probate Court to

determine whether the Will has been duly executed and

it is for the civil court to determine what effect has to be

given to it;

(iii) Malvika Anand v. Dattaprasanna Nandkari –

(2016) SCC OnLine Bom 10322 – Claim on basis of

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beneficiary under the Will is dependent on the outcome

of the Testamentary Petition for grant of Letters of

Administration of the Will [Paragraphs 7 to 10];

(iv) Dharam Tiwari v. Badri Prasad – (2002) 4 ICC 972

(Cal)(DB) – Even letters of administration cannot be

granted to the executor of a Will [Paragraphs 4 & 39];

(v) Ram Shankar v. Balakdas – (1991) SCC OnLine MP

195 – No hesitation to hold that in a Civil Court Suit

instituted by any party, claiming right, title and interest

in any property on the basis of a Will, no issue can be

struck to decide if that Will was the last Will and was a

valid Will and the other Will which it purported to

revoke had been duly and validly revoked by the Will

relied on by the plaintiff. The jurisdiction of the Civil

Court as per section 9 of the Code of Civil Procedure,

1908 mandates that the plaint is to be rejected where the

suit appears from the statement in the plaint to be barred

by any law [Paragraphs 15, 18 & 19]

8. Mr. Jagtiani has submitted that the role of an Executor in

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case of a Will is precisely to administer the Estate of the deceased as

per the Will. By filing a Petition for probate of the Will, the Executor

takes such responsibility to administer the Estate of the deceased /

Testator. He has placed reliance upon Sections 213 read with 227 of

the Indian Succession Act, 1925 and Rules 374 and 376 of the

Bombay High Court (O.S.) Rules, 1980 in this context. These

provisions prescribe the duty of the Executor to disclose to the Court

the role of administering the property within the period initially of 6

months and thereafter 12 months and further as permitted by the

Court. Such declaration is taken in the form of an Executors’ Oath /

Administrators’ Oath as prescribed under the said Original Side

Rules. Such rules and format prescribed under the High Court Rules

signify that the Executor is the only person entitled to administer the

Estate of the deceased.

9. Mr. Jagtiani has submitted that since an Order directing

administration of Estate would necessarily amount to determining

the entitlement of the beneficiaries / legatees under the Will before

such Will is proved by due process of law, any Order to this effect

would amount to a decree to the extent of granting such entitlement

and assuming jurisdiction of the Testamentary Court. This is not

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permissible.

10. Mr. Jagtiani has submitted that the Plaintiff is seeking

declaratory reliefs to the effect that the Estate of the deceased be

administered in accordance with the Will of 1994. This relief is

completely misconceived because the only Court which has exclusive

jurisdiction to permit an administration in accordance with a Will is

the Testamentary / Probate Court. Thus, in the absence of such a

finding by a Probate Court no relief by way of declaration as sought

for in the present Suit is maintainable.

11. Mr. Jagtiani has submitted that as a corollary to the first

issue is the question whether a conflict of two Wills can be decided

by a Civil Court in its ordinary civil jurisdiction. He has submitted

that the Plaintiff himself has pleaded and adverted to the existence of

a later Will of 2012 in respect of which a Probate Petition has been

filed by the Applicant / Defendant No. 5 as Executor thereof but in

respect of which the Plaintiff has entered a Caveat and challenged its

validity as being a forged and fabricated Will. He has submitted that

this necessarily postulates that this Court would have to frame an

issue as to which is the last Will of the deceased in this case

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[Girdharlal Nathubhai Dalal (for short “GND”)]. He has submitted

that such an issue cannot be entertained by this Court in view of the

decision in Ram Shankar vs. Balakdas2, as it is in the exclusive

domain of the Testamentary Court.

12. Mr. Jagtiani has submitted that in the facts of the present

case theoretically one or the other Will namely the Will of 1994 or

the Will of 2012 must prevail. He has submitted that Defendant No. 5

has not impugned the validity of the Will of 1994 on any ground save

and except the same has been superseded by a later Will of 2012. In

the event, the Plaintiff successfully demonstrates that the Will of

2012 is not valid then the Estate will only devolve in accordance with

the Will of 1994 and therefore there is no question for filing the

present Suit for administration. On the other hand if the Will of 2012

is proved to be valid by the Testamentary Court, the Plaintiff would

be disinherited by the deceased GND as per the said Will of 2012. In

any eventuality the Suit in the present form is unmaintainable.

13. Mr. Jagtiani has submitted that the Plaintiff in the

alternative to Prayer (a) has sought for administration of the Estate

of the deceased on intestacy. Therefore, the issue arises whether such

2 (1991) SCC OnLine MP 195.

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a Prayer on the face of it is maintainable. He has submitted that for a

comprehensive understanding of this issue, the provisions of Section

30 and 213, 227 and 254 of the Indian Succession Act, 1925 must be

borne in mind. He has submitted that the above provisions make it

abundantly clear that a prayer for intestacy cannot be maintained by

a Plaintiff who either propounds a Will as an Executor thereof or who

files for probate as Executor in respect of such a Will. He has

submitted that it would be blowing hot and cold in the same breath,

for a declaration / relief for administration on intestacy completely

militates against existence of a Will which is propounded by the very

same Plaintiff because intestacy is premised on the fact that the

Testator died without a Will.

14. Mr. Jagtiani has submitted that it is an elementary

proposition of law that a Suit cannot be founded on two

contradictory and self destructive causes of action . He has submitted

that to put it plainly either there is a Will or there is no Will, it cannot

be both. The absurdity of seeking these reliefs is that the very same

Plaintiff was propounding a Will of which he is the Executor is

seeking administration on intestacy as if there is no Will.

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15. Mr. Jagtiani has placed reliance upon the judgment of

the Supreme Court in Praful Manohar Rele vs. Krishnabai Narayan

Ghosalkar & Ors3., at Paragraph 10. He has submitted that this

judgment lays down that a Plaintiff may seek reliefs in the alternative

but when the pleadings are mutually opposite, such pleas cannot be

raised by the Plaintiff. He has submitted that there is an essential

difference between contradictory pleas and alternative pleas. When

the Plaintiff claims relief in the alternative, the cause of action for the

reliefs claimed is the same. However, when the contradictory pleas

are raised, such as in the present case, the foundation of these

contradictory pleas is not the same.

16. Mr. Jagtiani has submitted that Section 30 of the Indian

Succession Act is apposite and provides a statutory bar from seeking

to administer an Estate on the grounds of intestacy when the Plaintiff

himself has propounded a Will which he asserts to be genuine.

17. Mr. Jagtiani has also placed reliance upon Dharam Raj

Tiwari vs. Badri Prasad Tiwari 4 at Paragraphs 4 & 39. He has

submitted that in the absence of either relinquishing his executorship

3 (2014) 11 SCC 316.
4 (2002) 4 ICC 972 (Cal) (DB).

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or abandoning propounding the Will of 1994, a Suit for

administration on the basis of intestacy is clearly barred.

18. Mr. Jagtiani has submitted that the Plaintiff being the

Executor in respect of the Will of 1994 in respect of which he seeks a

declaration as to its legality and validity is already vested with the

Estate of GND upon his demise (This is of course on the presumption

that the Will of 1994 is proved to be the last Will and Testament of

GND). He has submitted that if that be so nothing precludes the

Plaintiff from taking such steps as to preserve the Estate without

giving effect to any form of benefits to any of the legatees or

beneficiaries named in the Will. Such vesting of the Estate is distinct

from administering the Estate as sought for by the Plaintiff vide the

present Suit. The vesting under Section 211 of the Indian Succession

Act, 1925 merely recognizes the Executors right to represent the

Estate. Thus, the Executor can represent the Testator and step into

his shoes in all legal proceedings dealing with the Estate. Such right

of representation is subject to the outcome of the probate

proceedings.

19. Mr. Jagtiani has submitted that Section 213 of the Indian

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Succession Act, 1925 categorically states that no Executor can

establish his role as an Executor unless a Court of competent

jurisdiction has granted probate of the Will. The role as an Executor

pursuant to such right is to administer the property only after

obtaining probate of the Will, and as noted above it is only the

Testamentary Court which can determine the validity or otherwise of

a Will to the exclusion of any other Civil Court. He has submitted that

pending probate, Suit for administration of Estate by the same

Executor would render Section 213 of the Indian Succession Act

otiose and redundant. For that matter even the Executor is prohibited

under Section 213 of the Indian Succession Act, 1925 to implement

and administer the bequest made under the Will until a Probate is

obtained. He has submitted that the present Suit must necessarily be

rejected as being not maintainable and contrary to law. He has relied

upon the judgment of the Supreme Court in Mrs. Hem Nolini Judah

(Since deceased) and after her Legal Representative Mrs. Marlean

Wilkinson vs. Mrs. Isolyne Sarojbashini Bose & Ors 5. He has

submitted that the Supreme Court has held that it is now well settled

that it is immaterial whether the right under the Will is claimed as a

Plaintiff or as a Defendant; in either case Section 213 will be a bar to

5 1962 SCC Online SC 35

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any right being claimed by a person under a Will whether as a

Plaintiff or as a Defendant unless Probate or Letters of Administration

of the Will have been obtained.

20. Mr. Jagtiani has submitted that in so far as limitation for

filing the Administration Suit is concerned as contended by the

Plaintiff, such contention would be academic, given the submission

that the Suit as filed is itself not maintainable at the instance of the

Plaintiff who has propounded a Will of 1994 and has filed for probate

in respect thereof. He has submitted that if the Suit for

administration of Estate at the behest of an Executor who has

propounded a Will by filing a Testamentary Petition is not

maintainable then the question of limitation for such proceeding does

not arise. He has submitted that without prejudice to the aforesaid

submission, an Executor can file a Testamentary Petition seeking

probate of a Will as and when he requires the same or when the right

to apply accrues. There is no period of limitation for such an

Executor as held in Hanuman Prasad Agarwal vs. Satyanarain

Agarwal and Ors6. Article 137 of the Limitation Act would give 3 yeas

for filing such Petition from the date the right to apply accrues.

6 2020 SCC Online Cal 973

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21. Mr. Jagtiani has submitted that the need to obtain a

probate can be set up by an Executor at any point of time and

therefore there is no specific period of limitation which would bar

filing of a Testamentary Petition. Consequently, for any grant or for

obtaining any grant of probate or Letters of Administration with or

without a Will, there would be no period of limitation becoming an

obstacle for maintaining the Petition. He has submitted that the

judgments relied upon by the Plaintiff are from the facts of those

cases, proceedings initiated against the Executor and hence not

maintainable to sustain the argument of limitation.

22. Mr. Jagtiani has submitted that in the present situation

the right to apply for Suit for administration of Estate will arise only

when the Probate Court determines that neither the Will of 1994 nor

the Will of 2012 are valid in law. Which therefore means that the

period of limitation will begin from a date in the future which event

is yet to take place. He has submitted that thus the apprehension that

the Plaintiff will be non-suited if he is required to wait till the

outcome of the Testamentary Court is wholly misconceived. He has

placed reliance upon the judgment of the Calcutta High Court in

Hanuman Prasad Agarwal (Supra) at Paragraph 15 onwards.

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23. Mr. Jagtiani has submitted that in the alternative and

without prejudice, the period of limitation will be attracted from

when either the Plaintiff gives up his claim as an Executor or

abandons the propounding of the Will of 1994. That event not having

taken place, the apprehension that the present Suit would be barred

by limitation till the Testamentary Court comes to a decision is again

misconceived.

24. Mr. Jagtiani has submitted that it is manifest that the

Suit as filed is primarily for a declaration in terms of Prayer Clauses

(a) to (c) and since for the aforesaid reasons those prayers are not

maintainable, it follows that the ancillary and subsidiary prayers

which are for ostensible protection of the Estate of GND cannot be

maintainable in their own right. He has submitted that such reliefs

may be sought under Section 269 of the Indian Succession Act, 1925

by a person eligible under that Section from a Testamentary Court in

a pending Testamentary Petition. In the instant case, since the

deceased was Hindu, Section 269 of the Indian Succession Act would

prohibit the Plaintiff from moving a Testamentary Court and the

Plaintiff may pursue his remedy for the aforesaid protective reliefs in

a Civil Court by way of a simplicitor injuction Suit which by its nature

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would not be susceptible to monetary valuation. He has submitted

that this position in law is clarified by the judgment in the case of

Rupali Mehta vs. Smt. Tina Narinder Sain Mehta 7, and Ramchandra

Ganpatrao Hande alias Handege vs. Vithalrao Hande & Ors 8, both of

which are misconceivedly relied upon / cited by the Plaintiff. None of

these judgments arise out of a situation where the Plaintiff seeks

intervention of the Civil Court for administration of an Estate of a

deceased while simultaneously propounding a Will of the said

deceased.

25. Mr. Jagtiani has submitted that until a probate has been

granted by the Competent Court no person can stake a claim / title

over a property by way of administration of the Estate of the

deceased or otherwise, and therefore, the protective reliefs sought for

cannot be subject to monetary valuation.

26. Mr. Jagtiani has differentiated the judgments cited by the

Plaintiff viz. Rupali Mehta (Supra) and Ramchandra Ganpatrao

Hande (supra) which dealt with the bar under Section 269 of the

Indian Succession Act, 1925 for Hindus to claim protective reliefs in

7 (2006) SCC OnLine Bom 846.
8 AIR 2011 Bom 136.

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Testamentary Petition before Testamentary Court. He has submitted

that these are not cases regarding maintainability of the Suit for

administration filed by the Plaintiff, who has simultaneously filed a

Petition for a Probate of a Will.

27. Mr. Jagtiani has submitted that the judgment of this

Court in Sajanbir Singh Anand vs. Raminder Kaur 9, relied upon by

the Plaintiff is a judgment only concerning limitation period for filing

an Administrative Suit and that there is no straight jacket formula

fixed to determine the period of limitation for filing such a Suit. He

has submitted that this judgment is contrary to the judgment of

Hanuman Prasad Agarwal (Supra) as there is no limitation period

specified for filing such a Suit.

28. Mr. Jagtiani has submitted that the judgment relied

upon by the Plaintiff viz. Gangarum Sakharam Dhuri vs. Gangubai

Raghunath Ayare10 spells out the nature and scope of an

Administration Suit and it is essentially a Suit for an account. He has

submitted that this judgment is not concerned with the present

matter as in the present matter, the same person who has

9 (2018) 3 Mh.L.J. 892.
10 (2007) 5 Mh.L.J. 136.

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propounded a Will has filed an Administrative Suit which is not

permissible.

29. Mr. Jagtiani has also distinguished the judgment relied

upon by the Plaintiff viz Anil Dattatray Parab & Ors. vs. Jayadev Bal

Thackeray11. He has submitted that this is a judgment with reference

to Testamentary Suit where the property left behind by the deceased

is not the subject matter of the Testamentary Suit and thus has no

relevance to the present matter.

30. Mr. Jagtiani has distinguished Jamshedji Dubash vs.

Meharbai Rustumji Dubash & Ors12, relied upon the Plaintiff, to be a

judgment which holds that in absence of a probate, Suit is

maintainable and a Legatee can file Suit and produce probate

subsequently before decree is passed. He has submitted that the facts

in that judgment did not contain a contest of two Wills and whether

the fact that when there are two Wills can a Suit be maintainable. He

has submitted that the reference to filing of a Suit pending obtaining

of probate is not a Suit for administration of Estate of the deceased

but a Suit seeking possession of property. In such Suit the probate can

11 (2014) SCC OnLine Bom 594.
12 (2003) 3 M.P.L.J. 322.

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be produced subsequently.

31. Mr. Jagtiani has submitted that the judgment relied upon

the Plaintiff viz Surendra Chandra Jena & Ors. vs. Laxminarayan

Jena & Ors13 regarded a Suit for partition and not a Suit for

administration of Estate of the deceased. Thus, this judgment is not

applicable in the present case.

32. Mr. Jagtiani has also distinguished the judgment in K.

Chandrasekara Rao & Ors. vs. C. Masilamani & Ors 14., relied upon by

the Plaintiff, to be a judgment regarding when a matter would be a

contentious proceeding and that an entry of a Caveat would not

convert the Petition into a contentious proceeding. The Petition

would become contentious only after the Caveator files Affidavit in

support of the Caveat. He has in turn placed reliance upon Paragraph

83 of the said judgment.

33. Mr. Jagtiani has submitted that the judgment relied upon

by the Plaintiff viz. Kamakhaya Prasad Gupta & Anr. vs. Jibon Lal

Gupta15 is a judgment where the Executor who had propounded the

13 (1987) SCC OnLine Ori 80.
14 (2012) 2 MWN Civil 705.
15 (2010) 6 Gauhati Law Reports 467.

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Will does not have to file a Suit for administration. He has submitted

that the question of Testamentary proceedings is not really a Suit or a

Plaint does not arise.

34. Mr. Jagtiani has distinguished the judgment in Bilquis

Zakiuddin Bandookwala & Ors. vs. Shehnaz Shabbir Bandukwala 16,

relied upon by the Plaintiff to be a judgment where a Will was

executed by a deceased who was a Mohammedan in favor of the

Defendant and the marriage between the parties was registered

under the Special Marriage Act. Therefore, the Defendant was not

required to obtain a probate of the Will of her deceased husband.

However, in the present case the parties are Hindus, thus for any

bequest under Will to take effect, a probate of a Will would be

necessary as per Section 213 of the Indian Succession Act. Thus, this

judgment would not apply in the facts of the present case.

35. Mr. Jagtiani has submitted that the judgments relied

upon by the Plaintiff viz. Indian Evangelical Lutheran Church Trust

Association vs. Sri Bala & Co 17., and Madhav Prasad Aggarwal & Anr.

vs. Axis Bank Ltd. & Anr18 are judgments which hold that a Plaint
16 (2011) 1 Mh.L.J. 963.
17 (Civil Appeal No.1525 of 2023) Supreme Court of India, Judgment dated 8th January,
2025.
18 (2019) 7 SCC 158.

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cannot be rejected in parts. He has submitted that in the present case

the Plaint as a whole needs to be rejected. Thus, these judgments are

not applicable.

36. Mr. Jagtiani has submitted that the judgment relied upon

by the Plaintiff viz. Mayur (H.K.) Ltd. & Ors. vs. Owners and Parties,

Vessel M.V. Fortune Express & Ors19. is a judgment on whether the

Plaint discloses a cause of action. This being a question of fact it has

to be gathered on the basis of averments in the plaint in its entirety

taking those averments to be correct and has no relevance to the

present case.

37. Mr. Jagtiani has submitted that the other judgments

relied upon by the Plaintiff viz. Sarva Shramik Sangh vs. Indian Oil

Corporation & Ors20., and Praful Manohar Rele (Supra) are

judgments on alternative pleas available in law can be taken when

there is no inconsistency in facts. It also holds that on the same facts,

different alternative reliefs can also be claimed. He has in this context

placed reliance upon Sarva Shramik Sangh (Supra), where it has

been held that mutually repugnant and contradictory pleas,

19 (2006) 3 SCC 100.
20 (2009) 11 SCC 609.

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destructive of each other may also not be permitted to be urged

simultaneously by the Petitioner – Plaintiff. He has also placed

reliance upon Paragraph 10 of Praful Manohar Rele (Supra),

wherein it is held that it is now well settled that a Plaintiff may seek

reliefs in the alternative but infact where pleadings are mutually

opposite, such pleas cannot be raised by the Plaintiff.

38. Mr. Karl Tamboly, learned Counsel appearing for the

Plaintiff has submitted that there is no dispute with the Probate

Courts’ exclusive jurisdiction to adjudicate the genuineness and

execution of the Will. It is the Plaintiffs’ case that the question of

administration of the Estate of the deceased is to be decided by a

Civil Court and not a Testamentary Court. He has submitted that the

Defendants have conflated the requirement to prove a Will with a

separate remedy of administering the Estate by citing the judgment

of the Supreme Court in Chiranjilal Shrilal Goenka (Deceased) Thru.

Lrs. vs. Jasjit Singh & Ors (supra). He has submitted that the legal

position is that Section 269 (2) of the Indian Succession Act excludes

the use of a Probate Court’s inherent civil powers but does not bar

independent civil remedies for issues concerning administration and

protection. He has in this context placed reliance upon the judgment

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of this Court in Ramchandra Ganpatrao Hande (Supra) at Paragraph

14, wherein it is held that Section 269 (2) does not preclude recourse

to a Civil Suit for obtaining relief necessary for the protection of the

property.

39. Mr. Tamboly has submitted that a Suit for administration

of the Estate of the deceased is filed under the CPC, whereas the sole

question that is decided by the Testamentary Court is the validity of a

Will. He has placed reliance upon Rupali Mehta (Supra), in particular

Paragraph 12 thereof, which has in turn relied upon Paragraph 5 & 6

of the judgment of the Supreme Court in Shanta G. Z. Mehta Vs Sarla

J Mehta21. He has submitted that this has also been echoed by the

Division Bench of this Court in Ramchandra Ganpatrao Hande

(Supra).

40. Mr. Tamboly has referred to the nature and scope of a

Suit for administration as laid down by the Full Bench of this Court

in Sanjanbir Singh Anand Vs. Raminder Kaur Anand(Supra) at

Paragraphs 12 and 21. He has submitted that it has been held that an

Administrative Suit is essentially one where reliefs claimed relate to

seeking administration of the Estate of a deceased under the orders

21 AIR 2004 SC 1238

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of the Court.

41. Mr. Tamboly has submitted that in the judgment of the

learned Single Judge of this Court in Gangaram Dhuri (through LRs)

Vs Gangubai Raghunath Ayare and Ors (Supra) at Paragraphs 24 –

26, it has been held that the entire administration and settlement of

the estate are assumed by the Court and assets are marshalled and

decree is made for the benefit of all Creditors. The Division Bench of

the Punjab High Court in Mt. Shafiul-Nisa Vs. Mt. Fazal-ul-Nisa 22 has

been referred to in the said judgment, which holds that if the main

object of the Suit is to administer the estate and if the Court in the

Suit has to decide as to the existence or otherwise of alienation, an

Administration Suit will lie.

42. Mr. Tamboly has submitted that the Testamentary Court

does not decide about the property of the deceased and as to how the

same has to be distributed on grant of the probate or refusal to grant

such probate. The Testamentary Court has no power to pass an Order

for distribution of the Estate of the deceased in favour of the legal

heirs on the basis of the deceased having expired intestate in the

absence of any proper Petition for Letters of Administration or Suit

22 AIR 1950 East Punjab 276

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for administration of estate of the deceased on the records of the

Court. He has in this context placed reliance upon the judgment of

this Court in Anil Parab and Ors. Vs Jayadev Bal Thackeray (Supra)

at Paragraphs 13 and 14.

43. Mr. Tamboly has submitted that the institution of a Suit

for administration is not barred in the absence of a probate / before

the grant of probate. He has in this context placed reliance upon the

judgment of the learned Single Judge of this Court in Jamshedji

Dubash (supra) at Paragraphs 5 – 8. It has been held therein that it is

immaterial, that the grant of probate follows the Suit so long as it is

granted before the date of the decree. It is further held that Section

213 of the Indian Succession Act does not operate as a bar to

institution of an action before obtaining probate of the Will. It is well

settled that a Legatee can file a Suit and produce a probate

subsequently before the decree is passed in the Suit. The institution

of the Suit is not barred in the absence of the probate. It may become

necessary for the Executor to institute the Suit and request for time

to produce the Probate.

44. Mr. Tamboly has referred to upon Sections 211 and 213

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of the Indian Succession Act, 1925. He has submitted that under

Section 213, it is provided that no right as Executor or Legatee can be

established in any Court of justice, unless a Court of Competent

Jurisdiction has granted probate of the Will under which the right is

claimed, or has granted Letters of Administration with the Will or

with a copy of an authenticated copy of the Will annexed. He has

submitted that under Section 211 (1), it is provided that the Executor

or Administrator as the case may be, of a deceased person is his legal

representative for all purposes, and all the property of the deceased

person vests in him as such. However, in the case of the deceased

being a Hindu, as in the present case, under Section 211(2) it is

provided that nothing herein contained shall vest in an Executor or

Administrator any property of the deceased person which would

otherwise have passed by survivorship to some other person.

45. Mr. Tamboly has submitted that in the Learned Single

Judge of the High Court of Orissa in Surendra Chandra Jena (Supra)

has in paragraph 4 held that according to the scheme of Section 211

of the Act, the Executor is not required to wait for the grant of the

probate but can ipso facto being the legal representative prosecute

the lis in view of the devolution of the interest under Order 22 Rule

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10 of the CPC in as much as the Testators’ Title stands vested in the

Executor on his death.

46. Mr. Tamboly has submitted that it is well settled that a

Testamentary proceeding is not really a Suit but has the trappings of

a Suit. Section 295 of the Indian Succession Act, 1925 deals with the

procedure in contentious cases and provides that the proceeding shall

take, as nearly as may be, the form of a regular Suit. He has placed

reliance upon the Division Bench judgment of the High Court at

Madras in K. Chandrasekhara Rao (Supra) where it is held that one

cannot ignore the very vital fact that a Testamentary Proceeding is

not really a Suit, but it has all the trappings of a Suit.

47. Mr. Tamboly has also relied upon the judgment of the

Gauhati High Court in Kamakhya Prasad Gupta Vs Jibon Lal Gupta 23

where it is held that nowhere does Section 295 provide that once a

proceeding becomes a contentious proceeding, the proceeding shall

be treated as a “Regular Suit”. What Section 295 says is that a

contentious proceeding shall be treated or shall be dealt with, as

nearly as may be possible, in the form of a “Regular Suit”. In short a

contentious proceeding becomes a Suit only in its form and not in its

23 2010 SCC OnLine Gau 307

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substance.

48. Mr. Tamboly has submitted that where the deceased

Testator is a Christian or Mohammaden, and Section 213 of the

Indian Succession Act, 1925 is not applicable to such Wills, probate

of the Will is not required. However, the Will will need to go through

the rigors of the Evidence Act, as held by the Learned Single Judge of

this Court in Bilquis Zakiuddin Bandookwala (Supra) at Paragraph 7.

49. Mr. Tamboly has submitted that the averments in the

Plaint as a whole have to be seen to find out whether Clause (d) of

Rule 11 Orders VII of the CPC is applicable and a Plaint cannot be

rejected in parts. He has in this context placed reliance upon the

judgment of the Supreme Court in Indian Evangelical Lutheran

Church Trust Association (Supra) at paragraph 6 (iii) & (vii). He has

also placed reliance upon the judgment of the Supreme Court in

Madhav Prasad Agarwal (Supra) at Paragraphs 10, 12 and 14.

50. Mr. Tamboly has submitted that essentially whether the

Plaint discloses a cause of action, is a question of fact which has to be

gathered on the basis of averments made in the Plaint in its entirety

taking those averments to be correct. The Supreme Court in Mayar H.

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K. Limited Vs. Owners & Parties (Supra) has held that whilst deciding

an application under the provisions of Order 7 Rule 11 of CPC, pleas

taken in the written statement are only relevant and whether the

Plaint discloses a Cause of Action, is a question of fact which has to

be gathered on the basis of the averments made in the plaint in its

entirety, taking those averments to be correct (Paragraph 12 of the

said judgments).

51. Mr. Tamboly has submitted that alternative Pleas

available in law can be taken when there is no inconsistency in facts.

He has in this context placed reliance upon Sarva Shramik Sangh

(Supra) at Paragraph 19 wherein it is held that when there is no

inconsistency in the facts alleged, a party is not prohibited from

taking alternative pleas available in law. Similarly, on the same facts,

different alternative reliefs can also be claimed.

52. Mr. Tamboly has submitted that the Supreme Court in

Praful Manohar Lele (Supra) at Paragraph 19 has held that the

general rule regarding inconsistent pleas raised in the alternative is

settled by long line of decisions rendered by this Court. It has in turn

relied upon Firm Sriniwas Ram Kumar Vs. Mahabir Prasad24 at

24 1951 SCC 136

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Paragraph 9.

53. Mr. Tamboly has submitted that this Court in its decision

in the matter between Funds and Properties of Parsi Punchayet and

Ors Vs. Minoo Keki Mistry and Ors. 25 followed the decision in Praful

Rele (Supra) as well as other decision to inter alia reiterate that there

is no absolute bar against taking of inconsistent pleas by a party.

54. Mr. Tamboly has submitted that in the present matter,

the Plaintiff is not praying for this Court to rule on the genuineness of

the Will but for the appointment of an Administrator which is entirely

within the Civil Courts’ domain.

55. Mr. Tamboly has submitted that the Plaintiff in the

present Suit is merely seeking protection of the Estate and therefore

the same does not require the Civil Court to determine the Wills’

validity.

56. Mr. Tamboly has accordingly submitted that the present

Interim Application taken out by the Applicant / Original Defendant

No. 5 under Order 7 Rule 11 (d) of the CPC is entirely misconceived

and be dismissed in limine.
25 2024 SCC OnLine Bom 3275

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57. Having considered the submissions, the paramount issue

raised in the Application for rejection of Plaint under Order 7 Rule 11

of CPC is whether the Suit for administration of the Estate of the

deceased is maintainable at the instance of a Plaintiff who has

propounded a Will i.e. Will of 1994 and filed for Probate of the said

Will as Executor thereof which is pending before the Testamentary

Court.

58. The contention of the Applicant is that the Plaintiff who

has filed for probate of the Will of 1994 has to necessarily await the

decision of the Probate Court which will determine the validity of the

said Will and it is only upon such determination, that the Suit may be

maintainable.

59. This contention is in my view is misconceived. There is

much merit in the Plaintiffs’ contention that the question of

administration of the Estate of the deceased is to be decided by the

Civil Court and not by a Testamentary / Probate Court. The

Defendants have conflated the requirement to prove a Will with the

separate remedy of administering the Estate of the deceased. The

Plaintiff does not dispute the Probate Court’s exclusive jurisdiction to

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adjudicate the genuineness of the Will. Section 269 (2) of the Indian

Succession Act excludes the use of a Probate Court’s inherent civil

powers but does not bar independent civil remedies for issues

concerning administration and protection. The judgment of this

Court in Ramchandra Ganpatrao Hande (Supra) relied upon by the

Plaintiffs is apposite. It has been held that Section 269 (2) would not

preclude recourse to a Civil Suit for obtaining relief necessary for the

protection of property.

60. There is no merit in the attempt made on behalf of the

Applicant for distinguishing this judgment on the ground that it was

dealing with bar under Section 269 of the Indian Succession Act for

Hindus to claim protective reliefs in Testamentary Petition before a

Testamentary Court and not a case regarding maintainability of a Suit

for administration filed by the Plaintiff who has simultaneously filed

a Petition for a probate of a Will. It has been laid down by this Court

that a Suit for administration of Estate would be maintainable

irrespective of whether the Plaintiff has filed Probate Proceedings in

the Testamentary / Probate Court. A Suit for administration of Estate

of the deceased is filed under the CPC whereas the sole question that

is decided by the Testamentary Court is the validity of a Will.

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61. This has also been laid down by this Court in Rupali

Mehta Vs Tina Mehta (supra), relied upon by the Plaintiff, which is

apposite. The distinction drawn by the Applicant is on the same lines

as in the case of Ramchandra Ganpatrao Hande (Supra) and hence

cannot be accepted.

62. The mere fact of the Plaintiff having propounded the Will

of 1994 and in its pleadings adverting to a later Will of 2012 left by

the deceased – GND which if proved would supersede the Will of

1994, does not come in the way of the present Suit being determined

by the Civil Court. This in view of the settled legal position that in an

Administrative Suit, the reliefs sought relate to seeking

administration of the Estate of a deceased under Orders of the Court.

It does not concern the validity of a Will which is best left to the

Testamentary / Probate Court.

63. Further, under Section 211 of the Indian Succession Act,

the executor of a deceased person is his legal representative for all

purposes and as held by the Orissa High Court in Surendra Chandra

Jena (supra) the executor is not required to wait for the grant of

probate but can ipso facto being the legal representative prosecute

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the lis in view of devolution of interest under Order XXII Rule 10 of

the CPC in as much as the testator’s title stands vests in the executor

on his death.

64. Amongst the judgments relied upon by the Plaintiff,

include Jamshedji Dubash (Supra), where it has been held that the

grant of probate follows the Suit so long as it is granted before the

date of the Decree and that Section 213 of the Indian Succession Act

does not operate as a bar to institution of an action before obtaining

probate of the Will. The Applicant has sought to distinguish his

judgment on the ground that it did not contain a contest of two Wills

and whether the fact that when there are two Wills can a Suit be

maintainable. This in my view is a misconceived distinction, in that

the principle of law laid down in the said judgment is that the grant

of probate is not a pre-requisite for filing the Suit for administration

of the Estate so long as it is granted before the Decree. This follows

from the settled law that the Testamentary Court does not decide

about the property of the deceased and as to how the same has to be

distributed on grant of probate or refusal to grant of such probate.

This has also been held by this Court in Anil Parab and Ors. Vs

Jayadev Bal Thackeray (Supra). I do not find any merit in the

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attempt to distinguish these judgments by the Applicant.

65. In so far as the issue with regard to whether the Plaintiff

can raise an alternative prayer to Prayer (a), by seeking for this Court

to administer the Estate of the deceased on intestacy and whether

such prayer is maintainable, this is to be considered from the well

settled principle that where alternative pleas are available in law,

they can be taken where there is no inconsistency in facts. In the

present case there is no inconsistency in facts as there is no dispute

that there are two Wills i.e. Will of 1994 and Will of 2012 and which

the Testamentary Court is seized of for determining the validity of the

Wills. The alternative prayer would arise when the Testamentary /

Probate Court arrives at a finding that both Wills are not genuine. It

is in such a eventuality that the alternate prayer has been made by

the Plaintiff in the present Suit.

66. It has been laid down by the Supreme court in Sarva

Shramik Sangh (Supra), relied upon by the Plaintiff, that when there

are no inconsistencies in the facts alleged, a party is not prohibited

from taking alternative pleas available in law. Similarly, on the same

facts, different alternative reliefs can also be claimed. This has also

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been held by the Supreme Court in Praful Manohar Rele (Supra) and

which has been followed in Funds and Properties of Parsi Punchayet

(Supra) which has reiterated the general rule regarding inconsistent

pleas raised in the alternative.

67. There is accordingly no merit in the contention of the

Defendant that the alternate prayer in the present Suit being

contradictory to the main prayer is self destructive of the causes of

action. Further, there is no merit in the contention on behalf of the

Defendant that in seeking the alternate relief, the very same Plaintiff

on the one hand is propounding a Will of which he is the Executor

and on the other is seeking administration on intestacy as if there is

no Will. The attempt made by the Applicant to distinguish the

judgment cited by the Plaintiff is misconceived as it is well settled

that inconsistent pleas can be raised in the alternative.

68. Further, there is no merit in the contention of the

Applicant that the remainder prayers cannot on their own right be

maintainable. This in view of finding that the main prayer and the

alternative prayer in the Suit are themselves maintainable. The

remainder prayers are infact a corollary to the main and alternate

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prayers i.e. for administration of the Estate of the deceased and

hence would certainly be maintainable.

69. It is also pertinent to note that a Testamentary

proceeding is not really a Suit but has trappings of a Suit as laid

down by the Madras High Court - Chandrasekhara Rao (Supra) and

the Gauhati High Court in Kamakhya Prasad Gupta (supra) which

have been relied upon by the Plaintiff.

70. I find merit in the submission on behalf of the Plaintiff

that the averments in the Plaint as a whole have to be seen to find

out whether Clause (d) of Rule 11 Order VII of the CPC is applicable

and a Plaint cannot be rejected in parts. This has been laid down by

the Supreme Court in Indian Evangelical Lutheran Church Trust

Association (supra) and Madhav Prasad Aggarwal (supra). Further,

whether the plaint discloses a cause of action, is a question of fact

which has to be gathered on the basis of averments made in the

Plaint in its entirety by taking those averments to be correct. In the

present case, the Applicant is seeking for rejection of part of the

Plaint i.e. that part from which Prayer Clause (a) to (c) follow and

this is not permissible in law. Further, one cannot consider the

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written statement in an Application under Order 7 Rule 11 and pleas

taken therein are wholly irrelevant. This has been laid down by the

Supreme Court in Mayar H. K. Limited Vs. Owners & Parties (Supra).

71. Now dealing with the judgments relied upon by the

Applicant, the judgment in Chiranjilal Shrilal Goenka (Deceased)

Thru. Lrs. has been relied upon in support of the Applicant’s

contention that a Civil Court sitting in its ordinary civil jurisdiction

has no jurisdiction to grant or revoke probate. This is a well settled

proposition and the Plaintiffs have not disputed the Probate Court’s

exclusive jurisdiction to adjudicate the genuineness and execution of

the Will.

72. Further, the judgment relied upon by the Applicant viz.

Dharam Raj Tiwari vs. Badri Prasad Tiwari (supra) is not relevant to

the present proceedings. This was a case wherein the question arose

as to whether an Arbitrator has jurisdiction to decide the probate

Suit. The Defendants have relied upon Paragraph 16 of the said

judgment which holds that Civil Court has no jurisdiction to impugn

the grant of probate by the Court of competent jurisdiction. This

would apply only when the parties are attempting to prove the

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genuineness of the Will by way of Civil Proceeding. This is not the

case here as has been observed above.

73. The judgment relied upon by the Applicant viz. Ram

Shankar vs. Balakdas (Supra) is a judgment which holds that as per

settled law there is a clear jurisdictional bifurcation between the

Probate Court and the Civil Court and that concurrent proceedings

can go on as long as the Civil Court doesn’t usurp jurisdiction of the

Probate Court. This judgment in fact supports the Plaintiff’s case viz.

that there is no bar on concurrent proceedings in a Civil Court but

there is merely a limit on the contest therein. The Civil Court cannot

go into the genuineness of the Will but the appointment of an

administrator is entirely within the Civil Court’s domain.

74. The judgment relied upon by the Defendant viz. Malvika

Anand v. Dattaprasanna Nandkari (Supra) is inapplicable in the

present case since in that case there was a challenge to the Will

itself. In the present case the Plaintiff has merely prayed for

appointment of an Administrator / Court Receiver for protection of

the Estate and thus the captioned Suit falls squarely within the Civil

Courts’ jurisdiction to grant reliefs necessary for the protection and

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proper administration.

75. In so far as the judgment in Peter John De’souza Vs.

Armstrong Joseph D’souza26 relied upon by the Applicant, this

judgment has held that the Testamentary Court does not decide the

title in respect of the property of the deceased. This is well settled

and not disputed by the Plaintiff in the present case and infact

supports the Plaintiff. Further, the judgment relied upon by the

Applicant in Vidur Impex and Traders Pvt. Ltd. And Ors Vs. Pradeep

Kumar Khanna and Ors27 was a case which involved “clandestine,

collusive” transactions carried out in direct violation of Court

injunctions which were condemned by the Supreme Court. This can

be contrasted with the present matter which involves a bona fide

Testamentary Petition confined to the question of the validity of a

Will, without any prior finding of fraud, illegality or suppression of

judicial proceedings. Therefore this cited case is not comparable in

the factual situation. Further, the present case unlike that case is not

seeking adjudication of ownership. The Plaintiff herein is merely

seeking protection of the Estate and therefore, the same does not

require the Civil Court to determine the Wills’ validity.

26 2014 (3) Mh.L.J.
27 2017 SCC OnLine Del 8925

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76. Accordingly, I find no merit in the present Notice of

Motion filed by the Applicant / Original Defendant No. 5, particularly

in view of Order 7 Rule 11 of CPC having been incorrectly invoked

for rejection of the Plaint. In the present case, the Plaint filed in the

captioned Suit cannot be rejected at the threshold as it would be a

death knell to the present Suit, particularly, where the Plaintiff has

sought to protect the Estate of the deceased, and as held above, such

relief cannot be granted by the Testamentary Court.

77. The captioned Suit as well as the proceedings filed in the

Testamentary Court would in my view be required to go on

concurrently, but for the final decree in the present Suit which would

have to await the outcome of the proceedings in the Testamentary /

Probate Court and the grant or non-grant of the Probate. This in view

of the genuineness of the Wills which are to be determined by the

Testamentary / Probate Court and which would have a bearing on

the final outcome of the present Suit.

78. The present Notice of Motion No. 954 of 2019 is

accordingly rejected. There shall be no order as to costs.

[ R.I. CHAGLA, J. ]

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79. After pronouncement of the Order, Mr. Haresh Jagtiani,

the learned Senior Counsel applies for stay on effect, operation and

implementation of this Order in order for the Applicant / Original

Defendant No.5 to carry it higher.

80. In view of this application, I grant a stay on the effect,

operation and implementation of this Order for a period of four

weeks from today.

[ R.I. CHAGLA, J. ]

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