Bai Avabai Hormusji Tata Trust vs Shernaz Faroukh Lawyer
- Court
- Supreme Court
REPORTABLE
2026 INSC 540
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). OF 2026
(@ SPECIAL LEAVE PETITION (CIVIL) NO(s). 25107 OF 2025)
BAI AVABAI HORMUSJI TATA TRUST ………APPELLANT
VERSUS
SHERNAZ FAROUKH LAWYER & ORS. ……RESPONDENTS
With
CIVIL APPEAL NO(s). OF 2026
(@ SPECIAL LEAVE PETITION (C) NO(s). 25108 OF 2025)
WITH
CIVIL APPEAL NO(s). OF 2026
(@ SPECIAL LEAVE PETITION (C) NO(s). 25109 OF 2025)
J U D G M E N T
PRASANNA B. VARALE, J.
1. Leave granted.
Signature Not Verified
2. The present appeals arise out of the common final judgment
Digitally signed by
RASHI GUPTA
Date: 2026.05.25
18:29:51 IST
Reason:
and order dated July 16, 2024, passed by the Division Bench of
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the High Court of judicature at Bombay in Appeal No. 10 of 2023.
By the said judgment, the Hon’ble High Court dismissed a group
of four appeals, including the one filed by the appellants herein,
challenging an order of a learned Single Judge which directed a
court-monitored criminal investigation into the conduct of the
parties with the estate of the deceased testator.
FACTUAL MATRIX
3. The genesis of this multi-layered litigation lies in the
competing claims over the estate of Purvez Burjor Dalal, a Parsi
Zoroastrian inhabitant of Mumbai, who passed away on
07.12.2011. The deceased was a bachelor and left behind
substantial movable and immovable properties, the valuation of
which is estimated to be over Rs. 100 Crores.
4. Following the death of the testator, two rival Wills surfaced.
The first Will, dated 22.11.2010, was propounded by Shernaz
Faroukh Lawyer (respondent No. 1) and her mother, the late Villy
Pirojsha Avasia (respondent No. 2). Under this Will, the respondents
claimed to be the executrices and beneficiaries of the estate.
5. Conversely, a second Will, dated 08.09.2011, was
propounded by Manek Dara Sukhadwalla. This later Will
2
purportedly bequeathed the entire estate to charitable purposes
and appointed Mr. Sukhadwalla as the sole executor. Both parties
filed testamentary petitions for probate of their respective Wills,
which were subsequently converted into Testamentary Suit No. 29
of 2012 (filed by respondents) and Testamentary Suit No. 25 of
2012 (filed by Mr. Sukhadwalla).
6. In the initial stages of the litigation, the respondents
(plaintiffs in Suit No. 29 of 2012) filed notice of motion No. 138 of
2012, seeking the appointment of an Administrator and an
injunction to restrain Mr. Sukhadwalla from disposing of or
intermeddling with the assets of the deceased. On 21.06.2012, the
Hon’ble High Court granted ad-interim relief, restraining Mr.
Sukhadwalla and directing him to disclose all movable and
immovable assets of the estate.
7. On 24.12.2013, the learned Single Judge of the Hon’ble
Bombay High Court appointed Mr. Jonathan Solomon as the
Administrator pendente lite of the estate under Section 247 of the
Indian Succession Act, 1925 (herein after referred to as ‘ISA,
1925’). The Administrator was specifically directed to take steps to
discover all properties forming part of the estate and, if necessary,
initiate recovery proceedings. This appointment was challenged by
3
Mr. Sukhadwalla up to this Court but attained finality upon the
dismissal of his Special Leave Petition on 05.09.2014.
8. Pursuant to his appointment, Mr. Jonathan Solomon (the
Administrator) conducted inquiries into the financial dealings of
the estate. During this process, he discovered that Mr.
Sukhadwalla had opened a bank account in the name of the
"Estate of Purvez Burjor Dalal" with Kotak Mahindra Bank.
Crucially, the Administrator found that two substantial sums had
been transferred from this account shortly after the testator's
death and, before the appointment of the Administrator.
9. The first transfer, amounting to Rs. 17,08,147/-, was made
on 24.03.2012, from the estate to one M/s. Amoha Traders Private
Limited (hereinafter referred to as ‘Amoha’). The second transfer,
amounting to Rs. 15,00,000/-, was made on 11.04.2012, from the
estate to one Bai Avabai Hormusji Tata Trust for Charitable objects
(hereinafter referred to as ‘Trust’) (the appellants herein).
10. The Administrator filed report No. 1 of 2016 and a
supplementary report, highlighting these transactions. He alleged
that these transfers constituted a diversion of estate funds and
sought directions for the return of the monies with interest. Prayer
clauses (e) and (g) of the Administrator's report specifically sought
4
the recovery of these sums from Amoha Traders and the appellant
Trust, respectively.
11. In response to these reports, the respondents herein alleged
a deep-rooted conspiracy between Mr. Sukhadwalla and one
Jamsheed Minocher Panday (also known as Jimmy Panday) to
siphon off the estate's funds. They contended that Mr.
Sukhadwalla had fabricated documents and utilized various
entities, including the appellant Trust and Amoha Traders, as
conduits for this siphoning.
12. A scrutiny of the appellant Trust's background revealed
further suspicious circumstances. While Mr. Sukhadwalla claimed
the Trust was a well-known charity established by the industrialist
Naval Tata in 1954, the respondents produced documents
suggesting the Trust was actually a Parsi family trust created in
1943 that had long been inactive. It was alleged that the Trust was
revived in 2011—coinciding with the execution of the rival Will—
purely to facilitate fraudulent activities.
13. Further investigations revealed that the appellant Trust,
Amoha Traders, and several other involved entities (such as Kratos
Energy and Canos Trading) shared common addresses, telephone
numbers, and email contacts, all leading back to Jamsheed
5
Panday. It was also discovered that Canos Trading, a company in
which Mr. Sukhadwalla held shares, had purportedly advanced a
loan of over Rs. 69 Lakhs to the deceased testator in 2015—nearly
four years after his death.
14. The Administrator reported significant non-cooperation from
Mr. Sukhadwalla and the associated entities. Despite multiple
court orders, full disclosures were allegedly not forthcoming, and
the parties were accused of suppressing bank accounts and
intermeddling with tenanted properties of the estate.
15. On 21.12.2018, the learned Single Judge after hearing the
parties on the Administrator's report, passed the impugned order.
The Court observed that the conduct of Mr. Sukhadwalla and the
notice was "obstructive" and "deceitful". Invoking the High Court’s
inherent and plenary jurisdiction as a Court of record under Article
215 of the Constitution, the learned Judge concluded that the
standard civil remedies were insufficient to protect the estate.
16. Consequently, the single Judge directed the Administrator to
draw up a criminal complaint and provide it to the Prothonotary
and Senior Master of the High Court. Upon scrutiny, the complaint
was to be forwarded to the Commissioner of Police, Mumbai, who
was directed to nominate a suitable team of officers to initiate an
6
investigation into the complaint and the affairs of the deceased.
The police were further directed to report the progress of this
investigation to the High Court on a fortnightly basis.
17. Aggrieved by this direction, the appellant Trust, along with
Mr. Sukhadwalla and Amoha Traders, filed intra-court appeals
before the Division Bench of Hon’ble Bombay High Court. They
primarily argued that a Testamentary Court has limited
jurisdiction confined to the genuineness of a Will and cannot order
a "phishing and roving" criminal investigation. They further
contended that the ISA, 1925 is a self-contained code and that the
High Court could not have bypassed the procedure prescribed
under Section 340 of the Code of Criminal Procedure.
18. The respondents countered that the High Court, even while
exercising testamentary jurisdiction, does not lose its character as
a Constitutional Court with plenary powers to prevent the abuse
of its process and to protect the property in medio . They argued
that the investigation was necessary to trace the trail of siphoned
funds that the Administrator, as an arm of the Court, was unable
to recover due to the parties' stonewalling.
19. By its judgment dated 16.07.2024, the Division Bench of
Hon’ble Bombay High Court dismissed the appeals. On the issue
7
of maintainability, the bench held that the perceived prejudice
caused by the observations in the single Judge’s order made the
appeals maintainable under the Letters Patent.
20. On the merits, the Division Bench upheld the Single Judge's
directions, holding that they were not "stand-alone" orders but
part of a series of attempts to safeguard the estate from depletion.
The bench noted that the Administrator was acting in furtherance
of his mandate and that the Single Judge had exercised caution by
ordering an inquiry rather than a straight recovery.
21. The Division Bench further observed that no ‘actual
prejudice’ would be caused to the appellants, as they would have
a full opportunity to defend themselves in any criminal prosecution
that might be launched. It clarified that the criminal investigation
would operate in a different field and that the information gathered
would merely assist the Testamentary Court in taking the matter
forward.
22. The appellants herein challenge the Hon’ble High Court's
judgment on the grounds that it creates a dangerous precedent
where police machinery is used to gather evidence in a purely civil
testamentary dispute. They contend that the High Court failed to
identify the exact crime committed and that the direction for a
8
court monitored investigation violates the personal liberty of the
parties.
23. It is also the appellant’s case that they have already admitted
to the transaction of Rs. 15 Lakhs and provided details of its
utilization for charitable medical aid, thereby leaving nothing left
to investigate.
24. The parties are now before this Court for a determination on
whether the Hon’ble High Court was within its jurisdiction to
invoke plenary powers to direct a criminal investigation into a
pending testamentary suit.
CONTENTIONS
25. Having perused the voluminous record and heard the learned
Senior Counsel appearing for the respective parties at length, the
competing claims and submissions can be crystallized into the
following primary contentions.
26. Contentions advanced on behalf of the appellants (Also
appellants before the Hon’ble High Court in Division Bench):
26.1 It was vehemently contended that a Testamentary
Court’s jurisdiction is strictly confined to examining the
genuineness and due execution of a Will. The Testamentary
9
Court materially erred in transgressing these boundaries to
direct a court-monitored, phishing, and roving criminal
investigation in a purely civil lis between private parties.
26.2 The appellants submitted that the ISA, 1925 is a
complete and self-contained code. If the Respondents or the
Administrator sought to secure the estate or allege
intermeddling, they were required to invoke specific statutory
provisions such as Sections 192, 208, or 269 of ISA, 1925.
The High Court erred in bypassing these statutory remedies
to invoke its plenary and inherent jurisdiction.
26.3 It was argued that under Sections 211, 227, and
307 of the ISA, 1925, the executor of a Will is perfectly
competent to deal with the estate of the deceased, and such
authority vests in the executor even prior to the grant of
probate. Consequently, the transfers made from the estate
to Amoha Traders and the appellant Trust cannot be deemed
illegal or void ab initio .
26.4 The appellants contended that the Hon’ble High Court
failed to appreciate the fundamental difference between an
“inquiry” and an “investigation” under the Code of Criminal
10
Procedure. By directing the lodging of a complaint directly
with the Commissioner of Police, the High Court bypassed the
mandatory preliminary inquiry required under Section 340 of
the Code of Criminal Procedure and ordered a criminal
investigation without explicitly recording a finding of the
commission of a cognizable offence.
26.5 It was vehemently submitted that police machinery
cannot be utilized as a tool to collect evidence or act as
recovery agents for private litigants in a civil testamentary
suit. The High Court effectively allowed the respondents to
hijack the Administrator’s report which only sought the
return of funds to launch a criminal investigation that the
Administrator himself never prayed for.
26.6 The appellants have approached this Court raising
several contentions to assail the impugned judgment,
Firstly, relying on Kanwarjit Singh Dhillon v. Hardyal
1
Singh Dhillon , the appellants contends that a
Testamentary Court’s jurisdiction is strictly confined to
determining the genuineness and due execution of a Will,
1 (2007) 11 SCC 357
11
and it cannot direct a roving criminal investigation.
Secondly, it is argued that the Indian Succession Act, 1925
is a self-contained code, as held in Fuerst Day Lawson Ltd.
2
v. Jindal Exports Ltd. ,
and the High Court erred in
invoking inherent powers outside the statutory framework.
27. Contentions advanced on behalf of the respondents
(Original Plaintiffs and the Administrator):
27.1 Per contra , the respondents submitted that the
Hon’ble High Court, even while sitting in its testamentary
jurisdiction, does not cease to be a Constitutional Court of
record. It retains its undiminished inherent and plenary
powers under Article 215 of the Constitution to pass
extraordinary orders to prevent the abuse of its process and
to safeguard the estate from depletion.
27.2 It was argued that when competing Wills are
propounded and the estate is in medio (in the custody of the
Court via an Administrator), no party including a self-styled
executor, has the right to unilaterally deal with or dispose of
the property. The executor’s actions of transferring large
2 (2011) 8 SCC 333
12
sums were entirely unauthorized, as he could not have dealt
with the estate until he obtained a probate.
27.3 The respondents highlighted a trail of deceit, arguing
that the executor colluded with Mr. Jamsheed Panday to
siphon away the estate's funds. They pointed out that entities
like Amoha Traders, Kratos Energy, and the Bai Avabai
Hormusji Tata Trust shared common addresses, telephone
numbers, and email addresses linked to Mr. Panday.
Furthermore, they contended that the appellant Trust was a
dormant entity that was fraudulently revived solely to receive
kickbacks.
27.4 It was submitted that the appellants engaged in
consistently obstructive and deceitful conduct. They failed to
make truthful disclosures, suppressed bank accounts, and
completely stonewalled the Administrator’s attempts to
discover the assets of the deceased. This blatant non-
cooperation left the Single Judge with no alternative but to
order an investigation to uncover the truth.
27.5 The respondents strongly contended that the impugned
order directing an investigation does not cause any actual or
13
substantive prejudice to the appellants. If a criminal
prosecution is eventually launched, the appellants will be
afforded a full and fair opportunity to defend themselves
under the applicable criminal law.
27.6 It was submitted that the High Court’s directions were
not merely an exercise of power under Section 340 of the
Code of Criminal Procedure, but rather an invocation of the
Court’s inherent power to stop non-cooperation with its
appointed officer (the Administrator). Therefore, the strict
procedural bars of Section 341 of the Code of Criminal
Procedure do not apply to the impugned order.
27.7 Lastly, the respondents maintained that the criminal
investigation was directed to operate in a different field
entirely. The core objective was that the information gathered
by the police machinery, when shared with the Court, would
assist the Testamentary Court in tracing the siphoned assets
and bringing the civil matter to its logical and just conclusion .
ANALYSIS
28. Heard learned counsel for the appellants as well as leaned
counsel for the respondents. We have also perused relevant
14
documents on record and the judgments passed by the Courts
below.
29. Though at the first blush the submissions of Learned Senior
Counsel for the appellant Mr. Jayant Bhushan, looks attractive
but we are unable to accept his submissions for the peculiar facts
emerged giving rise to the present litigation. The learned Single
Judge as well as the learned Division Bench were well aware of the
nature of the proceedings, namely the testamentary suit filed on
the backdrop of competing claims between the parties based on
two rival Wills. At the cost of repetition, we may state that by an
order passed during the proceedings, an administrator was
appointed on the backdrop of the facts that one Mr. Sukhadwalla
who was named as a sole executor under the competing claim
made by Will dated 08.09.2011 was disposing of the asset of the
deceased. On a notice of motion, the learned Single Judge on
21.06.2012 granted an ad interim relief by restraining Mr.
Sukhadwalla and he was further directed to disclose all movable
and immovable assets of the estate. Subsequently vide Order
dated 24.12.2012 the learned Single Judge appointed Mr.
Jonothan Solomon, Administrator of the estate under
pedente lite
Section 247 of the Indian Succession Act. It may not be out of
15
place to state that when the administrator pursuant to his
appointment conducted enquiry found that Mr. Sukhadwalla had
open a bank account and two substantial sums had been
transferred from this account soon after the testator’s death, one
of the such transfer was a handsome amount of Rs. 17,08,147/-
to a private entity namely, M/s. Amoha Traders Pvt. Ltd. The
Administrator filed a report and so as to protect the interest of the
trust sought directions for the return of the money with interest.
It was stated in the report that the enquiry of the Administrator
revealed some startling facts, namely a conspiracy between the
executive Mr. Sukhadwalla and another private person Mr. Jimmy
Panday. It was also stated in the report that Mr. Sukhadwalla who
was expected to protect the interest of the testator indulged in an
act of fabrication of the documents and siphoning of the amount.
There was also another shocking fact revealed that though it was
claimed that the trust was actually a Parsi family Trust created in
1943, Mr. Sukhadwalla made an attempt to show that trust was
created in 1954 by an individual Shri Naval Tata. The
Administrator also reported about the non-cooperation from Mr.
Sukhadwalla and it was pointed out that in spite of the series of
the orders of the Court for disclosing the details of bank accounts
16
and the transactions of the properties and certain transactions,
Mr. Sukhadwalla avoided to provide the details and further
avoided the disclosure of the material facts. On the backdrop of
these facts, the learned Single Judge found the conduct of Mr.
Sukhadwalla and other notices were obstructive and deceitful and
the civil remedies would not be sufficient enough to protect the
trust property and to check the misdeeds as such the learned
Single Judge by invoking the inherent and plenary jurisdiction of
the High Court being Court of record under Article 215 issued
directions to the Administrator. The challenge raised to the orders
of the learned Single Judge failed by the impugned order of the
High Court. In our opinion, the Division Bench assigned concrete
and justifiable reasons for upholding the order passed by the
learned Single Judge and it will be useful to refer to these
observations of the Division Bench while dismissing the appeals as
under:
31. “Therefore, the Administrator was directed to
endeavour to protect the estate. These observations of the
learned Single Judge and the Division Bench were
noticed by the learned single Judge. The Administrator
was acting in furtherance of this mandate of his
appointment and therefore, the impugned order had
directed the Administrator to take necessary steps in
17
consonance with the order of the learned Single Judge
dated 24 December 2013 and of the Appeal Bench dated
8 August 2014 and Section 247 of the Indian Succession
Act. Learned Single Judge could have straightaway
issued directions to recover the money. However, the
learned Single Judge has exercised caution and by the
impugned order directed that the inquiry be conducted so
that further course of action can be determined.
32. In light of the observations in the orders of the learned
Single Judge and the Appeal bench during appointment
of the administrator interpreting section 247 of the Indian
Succession Act, it was permissible for the learned Single
Judge to issue directions to bring back the estate and if
such power existed, there was no reason why the inquiry
could not have been ordered. All the observations made
by learned Single Judge are qua the estate and not qua
any person. Therefore, though elaborate arguments were
advanced before us, all that we see before us is an
exercise of plenary jurisdiction to find innovative method
in light of complete non-cooperation by the Executor, to
ensure that the matter is proceeded further and the will
of the testator is given full effect.
33. Since learned Single Judge was issuing an order which
was not the order that is regularly passed in the
testamentary proceedings, the learned Single Judge has
given certain reasons as to why it was necessary,
otherwise the order would have become without reasons.
Learned Single Judge has not concluded about the role of
the Appellants. The impugned order is passed since there
was no cooperation from the Executor to disclose the true
18
state of affairs. The information gathered in the
investigation would be shared with the Court so that the
information relevant for the subject matter can be utilized
for the ultimate purpose of giving effect to the will of the
Testator. Though the Appellants perceive that these
observations may affect the investigation, upon detailed
scrutiny, we find that the learned Single Judge has
nowhere intended in the impugned order that the rights
of the Appellants would be prejudiced, in case criminal
proceedings are launched against them.
34. The role of the Executor of a will is to execute it as per
the disposition of the testator. Therefore, if the property
is brought to the Administrator so appointed, it will
benefit the work of the Executor itself and there is no
prejudice to the Executor. Learned Single Judge faced
with non-cooperation by the Executor and having the
observations made while appointing the Administrator
and by the Appeal Bench on record. has directed the
Administrator to take certain steps which according to
learned Single Judge would aid and assist in arriving at
the correct position.”
35. In any case, in view of what is observed in paragraph
nos. 76 to 94 of the impugned Order, about allegations of
the Plaintiffs and the events about the flow of money from
the estate of the Deceased to Appellants Amoha Traders
and Bai Avabai Trust and the dealings of flat in Al Karim
building belonging to the estate of the Deceased coupled
with common address, telephone number and email of
various entities involved, leading to Mr. Panday coupled
19
with prior observations of this Court in earlier orders of
this Court (dated 24 December 2013 appointing
Administrator and dated 9 January 2017 in contempt
proceedings against the Appellant-Sukhadwalla), it is
clear that a need for investigation is felt by the learned
Single Judge to direct the Administrator to file complaint.
36. It is a settled position of law that the criminal
investigation is based on a procedure with different
parameters and therefore, the Appellants would have full
opportunity in case prosecution is launched against them
to defend it on its own merits. Therefore, though we have
permitted the Appellants to cross the threshold of the
maintainability of the Appeal on the ground of perceived
prejudice, we do not find that there is any actual
prejudice to the Appellants in the impugned order. It is
not contemplated in the impugned order that the
investigation should be affected by the observations
made therein. The criminal investigation will therefore
operate in the different field and the information gathered
in the investigation when shared, would assist the
Learned Single Judge in taking the matter forward.
37. This Court is a court of Original Jurisdiction having
abundant plenary and inherent powers. It is a Court of
record. If the facts of the case are such that an
investigation is found necessary into the dealings of
parties involved, including the Appellants, then an
investigation can be initiated by directing the
Administrator to file a complaint. This Court while
exercising even testamentary jurisdiction retains its
inherent and plenary powers and can initiate such action
20
by directing filing of criminal complaint. There is no merit
in the Appellants' contention that the learned Single
Judge of this Court was not justified in directing the
Administrator to file criminal complaint in the facts and
circumstances of this case. We agree to that extent with
the case of the Respondent/Plaintiffs and with the
caselaw relied upon by them in that behalf.
38. In this respect useful reference can be made to the
judgment of H.P.S. Chawla (Supra) were Division Bench
of Delhi High Court, while considering an intra-Court
appeal, arising out of Testamentary Jurisdiction, just as
the case at hand, has held that while exercising
Testamentary Jurisdiction, the High Court does not cease
to be a Court exercising inherent powers. In that case the
action of the learned Single Judge in deleting / expunging
scandalous and defamatory material, was held as
exercise within jurisdiction.
39. In Sahara India Real Estate Case (supra), the Hon'ble
Supreme Court while dealing with press and media laws,
has held that orders prohibiting publication for temporary
period are permissible under inherent powers of High
Court when the Court is satisfied that the interest of
justice so requires.
40. Applying these settled principles, we do not find it
necessary to interfere with the impugned order. The
impugned order is not a stand-alone order but it is part
of a series of orders passed in the Appeal in which
foundation to such directions were already made. The
order passed by learned Single Judge in exercise of the
plenary and inherent jurisdiction cannot be said to be
21
without jurisdiction. Merely because a different view is
possible, is not a ground for us to set aside exercise of
discretion by learned Single Judge. The learned Single
Judge felt that it was the only way to correctly adjudicate
the matter pending before it. Therefore, neither the order
is without jurisdiction nor it has caused any real or
substantive prejudice to the Appellants.
41. All that will take place is an investigation in which, if
the Appellants are accused, they will have full
opportunity of defending it as provided under the
applicable criminal law. It is also not Respondents' case
that the investigation should not proceed in accordance
with applicable criminal law. The information gathered in
the investigation when shared, would assist the Learned
Single Judge in taking the matter forward. Though we are
not inclined to interfere with the impugned order, the
observations/clarifications made in this judgement will
adequately protect the interest of Appellants in the
criminal prosecution if launched against them.
42. The Appeals are accordingly dismissed. No order as to
costs.”
30. The order passed by the High Court is also sustainable on the
aspect of the Admininistrators’s duties provided under Section 247
of the ISA, 1925:
247. Administration, pendente lite.—
22
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.
An Administrator under Section 247 of the Indian Succession
Act, 1925 is appointed by the Court and is thus an officer of the
Court, subject to the immediate control of the Court. His position
is similar to that of a receiver (except the fact that the
administrator does not distribute the estate) and he is nothing but
the "hand of the court". In this regard reliance is placed on
3
Pandurang Shamrao Laud v. Dwarkadas Kalliandas -
“ 3. In other words the position of an administrator
pendente lite is similar to that of a receiver, with this
distinction, that the administrator pendente lite
represents the estate of the deceased for all purposes
except distribution. Before granting administration
pendente lite the Court has to be satisfied in the first
place that there is a bona fide suit pending touching the
validity of the will of the deceased……”
3 1932 SCC OnLine Bom 154, para 3
23
31. It is also not in dispute that the status of the estate of the
deceased was an estate in “custodia legis” as the proceedings were
pending before the Court in rival claims of the estate. Admittedly,
an administrator was appointed. The administrator was duty
bound to take all reasonable steps for preservation and
maintenance of the estate of the deceased over which an
administrator is appointed under Section 247, is "in custodia legis"
and the possession of the Administrator over such estate cannot
be disturbed without the leave of the court. In this regard, reliance
is placed on this Hon'ble Court's judgment in Anthony C. Leo v.
4
Nandlal Bal Krishnan , which holds so in the context of a Court
Receiver. Further, para 29 of Anthony C Leo finds that the court
officer “is under an obligation to take all reasonable steps for
and that “
preservation and maintenance of such properties...” If for
such preservation, action in civil or criminal court is necessary, the
receiver is to draw the attention of the court of relevant facts
necessitating such legal action and take leave of the court to institute
appropriate legal proceedings for the preservation of the property”.
4 (1996) 11 SCC 376, para 28
24
32. Though it was vehemently submitted by learned senior
counsel for the appellant Mr. Jayant Bhushan that the learned
Single Judge as well as Division Bench of the High Court exceeded
in its jurisdiction, we are unable to accept the submissions of Mr.
Bhushan as it is a primary function of the Probate Court is to
adjudicate the execution and genuineness of the Will but while
doing so if the High Court notices glaring irregularities or there is
an element of mischief played by an executor noticed by the High
Court then in that situation the High Court cannot be a silent
spectator and will have to exercise its plenary and constitutional
power to check the mischief so as to protect the property. The
appellant’s heavy reliance on Kanwarjit Singh Dhillon (Supra) is
fundamentally misplaced. It is true that the primary function of a
Probate Court is to adjudicate upon the due execution and
genuineness of a Will. However, this does not mean that a High
Court, while sitting in its testamentary jurisdiction, is denuded of
its constitutional powers.
33. As held by this Court in M.V. Elisabeth v. Harwan
5
Investment & Trading Pvt. Ltd. , High Courts in India are
superior Courts of Record. They possess inherent and plenary
5 1993 Supp (2) SCC 433
25
powers, and unless expressly or by necessary implication barred,
their jurisdiction is unlimited to determine their own powers and
prevent the abuse of process. Furthermore, as rightly observed by
6
H.P.S. Chawla v. N.P.S. Chawla ,
the Delhi High Court in a High
Court exercising testamentary jurisdiction does not cease to be a
Court of equity. When an estate is brought under the protective
umbrella of the Court through the appointment of an
Administrator pendente lite under Section 247, the Court is duty-
bound to ensure the estate is not plundered. If the Court discovers
that parties are employing deceit, suppressing bank accounts, and
using shell trusts to siphon funds, it is entirely within its plenary
jurisdiction to direct a police investigation to unearth the fraud.
34. We may also refer to Section 269 of the Indian Succession
Act, 1925 and it reads thus:
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 interfere for 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
6 2005 SCC OnLine Del 1006
26
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.
35. Considering the scheme of ISA, 1925 and considering the fact
that the testator was a Parsi, therefore, the bar contained in
Section 269(2) would not be applicable in the present case.
“District Judge” is defined under Section 2(bb) of the Indian
Succession Act to mean “the judge of a Principal Civil Court of
original jurisdiction”. Section 300 of the Indian Succession Act viz.
“Concurrent jurisdiction of High Court” states that “The High
Court shall have concurrent jurisdiction with the District Judge in
exercise of all the powers hereby conferred upon the District
Judge”. The December 2018 Order, confirmed by the Impugned
Judgment, were passed in exercise of upholding the inherent
powers of the High Court, a court of record, to ensure that the
Administrator (an officer of the court) is not impeded from
performing its functions and to ensure that the estate of the
deceased, which is in custodia legis, is not misappropriated. As
held by this Hon'ble Court in M.V. Elisabeth (supra) , paras 64
27
and 66, the High Court in India are superior courts of record,
which possess inherent and plenary powers. This Hon'ble Court
held that it is the duty of the superior courts of record, possessed
with inherent and plenary powers to devise its procedural rules
suiting to the peculiar facts and circumstances of the case.
36. The appellant’s contention that the Indian Succession Act is
a self-contained code precluding a criminal investigation is
fallacious. The ratio of Fuerst Day Lawson Ltd. (Supra) pertains
to the exclusion of general appellate remedies where a special
statute provides a specific appellate mechanism. It does not lay
down a proposition that a Constitutional Court cannot order a
criminal investigation if a crime is committed in relation to the
subject matter of a civil suit.
37. The Indian Succession Act governs the administration of
estates, but it does not grant immunity to individuals who commit
criminal breach of trust, forgery, or conspiracy to siphon off an
estate in medio . As held by the Delhi High Court in Sanjeev Kumar
7
Mittal v. The State , when a case of massive fraud on the court
or the estate comes to light, a private party cannot be expected to
investigate the conspiracy themselves. The Court is well-
7 2010 SCC OnLine Del 4006
28
empowered to direct the police or a state agency with statutory
powers to investigate the matter, gather evidence, and place a
report before the Court.
38. A R Antulay
As observed by the Supreme Court in the case of
8
v. R.S. Nayak , the jurisdiction of Court is capable of being
created or enlarged by legislation. The Supreme Court observed
that jurisdiction comes solely from the law of land and cannot be
exercised otherwise, that jurisdiction may be exercised by the
Court as provided for the constitution or in laws made by the
legislature and a power of the Court to deal with the matter or
make an order carrying binding force in the facts of a particular
case that a code cannot confer jurisdiction on itself if it is not
provided in law. In his opinion, Venkatachaliah, J. as he then was,
of the view that the expression ‘jurisdiction’ is a verbal coat of
many colours that in case of the tribunal an error of law might not
only be ‘error in jurisdiction’ but in error of jurisdiction “but
otherwise jurisdiction is a legal shelter and the existence of
jurisdiction does not depend on the correctness of its exercise”. It
is settled law that a decree passed by a Court without jurisdiction
goes to the root because the court lacks inherent jurisdiction and
8 1988 (2) SCC 602
29
is coram non-judis. In this behalf it is appropriate to refer to the
observations of the Supreme Court in M.V. Elisabeth (supra) in
para 64 wherein the Supreme Court observed that “where statutes
are silent and remedy has to be sought by the courts to basic
principles, it is the duty of the Court to devise procedural rules by
analogy and expediency.”
39. The appellant boldly asserts that under Sections 211 and 307
of the Indian Succession Act, Mr. Sukhadwalla had the absolute
authority to transfer Rs. 15,00,000/- to the appellant Trust. We
emphatically reject this submission. While an executor derives his
authority from the Will, such authority is not a license to plunder.
Where two rival Wills are propounded and the matter is fiercely
contested, the estate is in custodia legis or in medio , an executor of
a disputed Will cannot unilaterally start disposing of the estate's
cash assets to dormant trusts connected to his associates. Section
247 of the Act specifically empowers the Court to appoint an
Administrator pendente lite , whose appointment suspends the
powers of the executor. It is a matter of record that the appellant
Trust was inactive since 1943 and was suspiciously revived in
2011 precisely around the time the rival Will was allegedly
executed. Transferring large sums of money to such an entity
30
under the garb of "charity" while a probate dispute is looming is a
classic hallmark of intermeddling and siphoning.
40. The appellant’s argument that the High Court bypassed the
mandate of Section 340 of the CrPC is equally untenable. A holistic
reading of the Single Judge's order makes it abundantly clear that
the direction for a criminal investigation was not passed strictly
under Section 340 of the CrPC for an offence affecting the
administration of justice (like perjury in court documents alone).
Rather, the Court exercised its broader inherent powers to
investigate a larger conspiracy of siphoning the estate's funds
through fraudulent banking transactions and shell entities.
Therefore, the procedural bars or appellate restrictions under
Section 341 of the CrPC are inapplicable here.
41. At this stage, we may also refer to one of the important
provisions on the backdrop of the submission of the appellant
namely Section 340 of Cr.P.C.
340. Procedure in cases mentioned in Section
195.
(1) When upon an application made to it in this behalf or
otherwise any Court is of opinion that it is expedient in
the interest of justice that an inquiry should be made
into any offence referred to in clause (b) of sub-section
(1) of section 195, which appears to have been
committed in or in relation to a proceeding in that Court
31
or, as the case may be, in respect of a document
produced or given evidence in a proceeding in that
Court, such Court may, after such preliminary inquiry,
if any, as it thinks necessary, -
a) record a finding to that effect;
b) make a complaint thereof in writing;
c) send it to a Magistrate of the first class having
jurisdiction;
d) take sufficient security for the appearance of the
accused before such Magistrate, or if the alleged
offence is non-bailable and the Court thinks it
necessary so to do, send the accused in custody
to such magistrate; and
e) bind over any person to appear and give evidence
before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in
respect of an offence may, in any case where that Court
has neither made a complaint under sub-section (1) in
respect of that offence nor rejected an application for the
making of such complaint, be exercised by the Court to
which such former Court is subordinate within the
meaning of sub-section (4) of Section 195.
(3) A complaint made under this section shall be signed,
a) where the Court making the complaint is a High
Court, by such officer of the Court as the Court
may appoint;
b) in any other case, by the presiding officer of the
Court [or by such officer of the Court as the Court
may authorise in writing in this behalf.]
(4) In this section, "Court" has the same meaning as in
Section 195.
Thus, under Section 340(3)(a) where the Court making the
complaint is a High Court, an officer of that court may be
appointed to make that complaint. Since the High Court is
exercising its testamentary jurisdiction, it is therefore permissible
32
for an officer of High Court registry to make that complaint. The
object and scope of Section 340 is to institute an enquiry and
ascertain whether any offence affecting administration of justice
has been committed in relation to any document produced and
given as evidence in Court. Section 340 of the Code has been held
to be applicable to all proceedings in all Courts in criminal cases
or civil cases irrespective of the fact that whether the matter in
court is one involving an offence mentioned in Section 195.
42. Though the learned senior counsel Mr. Bhushan vehemently
submitted before this Court that as the learned Single Judge and
Division Bench of the High Court issued directions by exceeding
the jurisdiction of the High Court, it causes prejudice to the appeal,
we are unable to accept even this submission of learned senior
counsel, on the contrary, we are in agreement with the
observations of the High Court that the High Court and
particularly, Division Bench in its order that the appellant suffers
no actual or substantive prejudice by the mere initiation of an
investigation. A criminal investigation operates in an entirely
different paradigm. If the appellant Trust genuinely utilized the
funds for bona fide charitable purposes, it will have every
opportunity to place its accounts and records before the
33
investigating agency. It is a settled position of law that an
investigation by the police to uncover the truth does not, by itself,
infringe upon the personal liberty of a corporate or trust entity.
The High Court has merely set the investigative machinery in
motion to assist the Testamentary Court in tracing the siphoned
assets.
CONCLUSION
43. The conduct of the appellants and the associated entities
reveal a concerted, deceitful effort to frustrate the Administrator's
mandate and dissipate the estate of Late Purvez Burjor Dalal. The
High Court was perfectly justified in refusing to be a mute
spectator to this blatant abuse of process. The invocation of Article
215 of the Constitution to direct a court-monitored investigation
was not only legally sound but absolutely necessary to protect the
estate in medio and uphold the majesty of the law.
44. Therefore, we find no infirmity or illegality in the impugned
common final judgment and order dated July 16, 2024, passed by
the Division Bench of the Hon’ble High Court, nor in the
underlying order of the learned Single Judge dated December 21,
2018.
34
45. With the result, the appeals being devoid of merit deserves to
be dismissed and the same are accordingly dismissed. As we are
upholding the judgment of the High Court, we may state here that
in case pursuant to the directions of the High Court, a report is
drawn by Prothonotary and submitted for investigation, the
competent investigation authority to proceed with the investigation
expeditiously and submit the progress report as per the directions
of the High Court.
46. Appeals are accordingly dismissed. Pending applications, if
any, also stand dismissed.
........................................J.
[PANKAJ MITHAL]
.........................................J.
[PRASANNA B. VARALE]
NEW DELHI;
MAY 25, 2026.
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