The Supreme Court has asserted that where, in testamentary proceedings, an estate is in medio or in custodia legis and is under the control of an Administrator pendente lite appointed under Section 247 of the Indian Succession Act, 1925, the High Court is not confined to the narrow question of the genuineness of the Will alone, but may, in exercise of its inherent and plenary jurisdiction as a Court of record under Article 215 of the Constitution, direct the filing of a criminal complaint and initiation of investigation if the facts disclose apparent fraud, deceit, intermeddling, or siphoning of estate assets.
The Court held that such power is not excluded by the Indian Succession Act being a special statute, nor is it necessarily controlled by Section 340 CrPC where the Court is addressing a broader conspiracy affecting the estate rather than only offences relating to administration of justice in court proceedings. The appointment of an Administrator pendente lite carries with it the Court’s power and duty to preserve the estate, and if preservation of the estate requires recourse to civil or criminal action, the Court may authorise such steps.
A Two-Judge Bench comprising Justice Pankaj Mithal and Justice Prasanna B. Varale observed that, although the primary function of a Probate Court is to examine the execution and genuineness of a Will, the High Court, while exercising testamentary jurisdiction, does not cease to be a superior Constitutional Court of record possessing inherent and plenary powers.
The Bench placed weight on the fact that the estate was in custodia legis, an Administrator pendente lite had already been appointed, and the material before the High Court disclosed obstructive and deceitful conduct, including non-disclosure of bank accounts, suspected siphoning of estate funds, and use of connected entities for questionable transactions.
The Bench approved the High Court’s view that ordinary civil remedies were insufficient in the circumstances, and that directing an investigation was an innovative but permissible step to protect the estate and assist the Court in bringing the matter to its logical conclusion. It further observed that the order did not determine criminal liability, that any criminal process would operate in a distinct field, and that no actual prejudice was caused merely by setting the investigative machinery in motion.
Briefly, the appeals arose from a common judgment of the Bombay High Court affirming an order of the Single Judge in pending testamentary proceedings concerning the estate of Purvez Burjor Dalal, who died on Dec 07, 2011, leaving substantial movable and immovable assets. Two rival Wills were propounded: one dated Nov 22, 2010 by Shernaz Faroukh Lawyer and her mother, and another dated Sep 08, 2011 by Manek Dara Sukhadwalla, who claimed to be sole executor under the later Will.
In the course of the proceedings, the High Court appointed an Administrator pendente lite under Section 247 of the Indian Succession Act, 1925, to protect and trace the estate assets. The Administrator discovered that Sukhadwalla had opened a bank account in the name of the estate and, shortly after the testator’s death, transferred substantial sums from that account, including Rs. 17.08 lakhs to Amoha Traders Private Limited and Rs. 15 lakhs to Bai Avabai Hormusji Tata Trust.
The Administrator’s reports alleged diversion of estate funds, and the respondents further asserted a conspiracy involving Sukhadwalla and connected entities sharing common addresses and contact details, coupled with suppression of disclosures and non-cooperation with the Court’s directions. On that basis, the Single Judge directed the Administrator to draw up a criminal complaint for investigation, and the Division Bench upheld that direction.
