The Bombay High Court recently intervened in a contentious testamentary dispute, restraining the respondents from alienating or dealing with a property pending the probate suit. The order underscores the court's authority under Section 247 of the Indian Succession Act, 1925 to protect estate assets during litigation, particularly when there is prima facie evidence of unauthorized transactions.
Background & Facts
The Dispute
The applicant, Shivangi Anil Dhaneshwar, is the daughter of the deceased, Sulabha Mukund Athalye, who passed away on 5th August, 2019. The applicant’s brother, Sameer Mukund Athalye, filed Testamentary Petition No. 2581 of 2023 seeking probate of a purported Will dated 22nd April, 2008. The applicant, acting as the caveator, challenged the validity of the Will and filed the present Interim Application (L) No. 15240 of 2026 in Testamentary Petition No. 43 of 2023, seeking the appointment of a Court Receiver or an Administrator under Section 247 of the Indian Succession Act, 1925 to safeguard the estate until the final disposal of the suit.
Key Facts
The deceased, Sulabha Mukund Athalye, executed a purported Will on 22nd April, 2008, which is the subject of the probate proceedings.
The applicant is the daughter of the deceased and the sister of the petitioner in the probate suit.
The disputed property, survey no. 151, CTS No. 1725, Village Erangal, Madh-Marve Road, Malad (West), Mumbai-400 064, is mentioned in the purported Will at serial no. 3, page 18.
The applicant discovered a signboard on the said property, proclaiming ownership by Shri Sanjay Vasant Patil on behalf of the Power of Attorney holder of Nandanvan Group of Companies. This raised apprehensions of unauthorized alienation or redevelopment.
Another property, referred to as the Goregaon property (mentioned at serial no. 2, page 18 of the petition), was remortgaged to Anand Rathi Global Finance Ltd on 26th June, 2023, after the filing of the probate petition.
Procedural History
2023: Testamentary Petition No. 2581 of 2023 filed for probate of the Will.
2023: The petition was converted into Testamentary Suit No. 43 of 2023.
2026: The applicant filed Interim Application (L) No. 15240 of 2026 seeking protective orders.
10th July, 2026: The Bombay High Court heard the interim application and passed the present order.
The Parties' Positions
For the Applicant
The applicant contended that the respondents were dealing with the estate properties without authority, including putting up a signboard on the disputed property and remortgaging another property.
The applicant sought the appointment of a Court Receiver or Administrator under Section 247 of the Indian Succession Act, 1925 to prevent dissipation of assets.
Reliance was placed on Exhibit-A, which evidenced the unauthorized signboard, and the conduct of the respondents in dealing with the properties during the pendency of the suit.
For the Respondent
The respondents argued that the properties belonged to them and that they were free to deal with the same.
They sought time to file a reply and opposed the immediate grant of protective orders.
Relief Sought
The applicant sought:
Appointment of a Court Receiver or any other fit and proper person as Administrator under Section 247 of the Indian Succession Act, 1925.
An injunction restraining the respondents from dealing with or alienating the disputed property until the final disposal of the suit.
The Legal Issue
The central question before the court was whether, in a testamentary suit, the court could invoke Section 247 of the Indian Succession Act, 1925 to restrain the respondents from dealing with the estate properties pending the probate proceedings, particularly when there was prima facie evidence of unauthorized transactions.
Arguments Presented
For the Applicant
The applicant argued that the respondents’ conduct, including putting up a signboard and remortgaging a property, demonstrated an intent to alienate the estate assets without authority.
It was contended that Section 247 of the Indian Succession Act, 1925 empowers the court to appoint an administrator to protect the estate during litigation.
The applicant relied on Exhibit-A to show the unauthorized proclamation of ownership on the disputed property.
For the Respondent
The respondents submitted that they were the rightful owners of the properties and were entitled to deal with them as they pleased.
They sought time to file a reply and opposed the immediate grant of protective orders.
The Court's Analysis
The court observed that the purported Will, at Exhibit-B (pages 17 and 18), included the disputed property at serial no. 3. The court noted that the signboard put up by Shri Sanjay Vasant Patil on the property, proclaiming ownership on behalf of the Power of Attorney holder of Nandanvan Group of Companies, raised serious concerns about unauthorized dealings. The court further took note of the remortgaging of the Goregaon property to Anand Rathi Global Finance Ltd on 26th June, 2023, which occurred after the filing of the probate petition.
The court held that the respondents’ conduct warranted a protective order to prevent dissipation of the estate assets during the pendency of the suit. The court relied on Section 247 of the Indian Succession Act, 1925, which empowers the court to appoint an administrator to manage the estate when there is a risk of mismanagement or alienation.
"This Court is, therefore, of the view that the Respondents appear to be dealing with the said property and which calls for a protective order."
The Verdict
The Bombay High Court directed:
The respondents to file a reply within two weeks, with a copy to the applicant.
The applicant to file a rejoinder within two weeks thereafter, with a copy to the respondents.
Until further orders, the respondents and any other persons were restrained from dealing with or disposing of the disputed property in any manner whatsoever.
What This Means For Similar Cases
Protective Orders Under Section 247 of the Indian Succession Act
Courts can invoke Section 247 of the Indian Succession Act, 1925 to appoint an administrator or issue injunctions to protect estate assets during probate disputes.
The provision is particularly useful when there is prima facie evidence of unauthorized transactions, such as alienation or mortgaging of properties.
Prima Facie Evidence of Unauthorized Dealings Suffices
The court does not require conclusive proof of alienation to grant protective orders. Prima facie evidence, such as unauthorized signboards or remortgaging during litigation, is sufficient to restrain parties from dealing with the estate.
Practitioners should highlight such evidence to seek interim protection for estate assets.
Conduct of Parties During Litigation Matters
Courts closely scrutinize the conduct of parties during the pendency of a suit. Dealing with estate properties without disclosure or authority can lead to adverse inferences and protective orders.
Parties must ensure transparency in their dealings with estate assets to avoid judicial intervention.
