Smt Chabi Dey vs Sri Ajoy Das And Anr

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GAHC010108552026

2026:GAU-AS:16055
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/231/2026
SMT CHABI DEY
W/O SRI SHIV NATH DEY D/O. LATE NIRANJAN DAS RESIDENT OF
KALIMANDIR PATH, OPP. GYAN SCHOOL, JYOTIKUCHI, P.O-ODALBAKRA,
P.S-FATASIL AMBARI, DISTRICT-KAMRUP(M), ASSAM, GUWAHATI-781034.
VERSUS
SRI AJOY DAS AND ANR
SON OF LATE NIRANJAN DAS, RESIDENT OF CYCLE FACTORY. P.S-
FATASIL AMBARI, P.O- GOPINATH NAGAR, GUWAHATI-781016
2:SRI BIJAY DAS
SON OF LATE NIRANJAN DAS
RESIDENT OF CYCLE FACTORY. P.S- FATASIL AMBARI
P.O- GOPINATH NAGAR
GUWAHATI-781016

::BEFORE ::
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
For the Petitioner : Mrs. B Sarkar, Advocate
For the Respondents : Mr.D Bhattacharjee, Advocate

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Date of Hearing : 15.10.2026
Date of Judgment : 03.11.2026

JUDGMENT & ORDER

1. Heard Ms. B. Sarkar, the learned counsel for the petitioner. Also heard
Mr. D. Bhattacharjee, the learned counsel for the respondent Nos. 1 and
2.
2. This application under Article 227 of the Constitution of India has
been filed by the petitioner, Smt. Chabi Dey impugning the order dated
10/03/2026 passed by the Court of the learned Additional District Judge
No. 1,Kamrup (M) on an application filed by the present petitioner, which
was registered as Petition Number 161/2026, in the Probate TS No.
13/2024, whereby the prayer for restoration of electricity connection in
the shop room owned by the husband of the present petitioner was
rejected.
3. The facts relevant for consideration of the instant case, in brief, are
that the respondents have instituted a probate case, which was
registered as Probate TS No. 13/2024, before the Court of the Additional
District Judge No. 1, Kamrup (M) for grant of probate in their favor in
respect of the last will dated 26/07/2006of their mother, Late Bhanuprava
Das. The present petitioner along with three others, were made
respondents in the said Probate Title Suit.
4. The property, which was bequeathed by the will of which the probate
has been sought for by the respondents is described in the schedule to
the probate application i.e. a plot of land measuring 2 kathas, 10 lechas

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covered by Dag No. 1/135/ 130 of Patta No. 1 of village No. 1, Kahilipara
Non-K, Green Wood Fee Simple Grant, under Mouza Beltola in the district
of Kamrup (M), Assam.
5. Ms. B. Sarkar, the learned counsel for the petitioner submits that the
shop room owned by the husband of the present petitioner is situated
over the property, which is the subject matter of the will in the probate
case. She further submits that, during the pendency of the probate
proceeding, the respondents, on 10/01/2026, disconnected the electricity
connection from shop No. 2, belonging to the present petitioner, which is
run by her husband in the name and style of M/s. Akash Electricals, since
1982. She submits that the present petitioner, who is the defendant No. 3
in the Probate Title Suit No. 13/2024, filed an application under Section
151 of the Code of Civil Procedure in the aforesaid case for reconnection
of the electricity supply in the shop room of the present petitioner.
However, the Probate Court, by order dated 10.03.2026, has rejected the
said prayer, and the said order has been impugned by the petitioner in
the instant CRP (IO).
6. She submits that the probate court erred in dismissing the petition
filed by the present petitioner under Section 151 of the Code of Civil
Procedure, 1908 for restoration of electricity, mainly on the ground that
the probate court does not have jurisdiction to grant relief sought for in
the petition bearing No. 161/2026. She submits that as per Section 295
of the Indian Succession Act, 1925, in any probate proceeding, where the
opposite party opposes the grant of probate, the said proceeding takes
the character of a regular suit and provisions of Code of Civil Procedure,
1908 are applicable in such probate proceeding. She further submits that

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in such a proceeding, the Probate Court can also pass an order of interim
injunction under Section 269 of the Indian Succession Act, 1925.
7. She also submits that the said power may also be exercised by the
court under Section 151 of the Code of Civil Procedure. Hence, she
submits that the probate court was wrong in rejecting the application
filed by the present petitioner, who is one of the defendants (i.e.,
defendant No. 3) in the Probate Title Suit, for restoration of electricity to
the shop room situated over the property, which is the subject matter of
the probate case.
8. In support of her submission, the learned counsel for the petitioner
has cited a judgment of the Coordinate Bench of this court in the case of
Dr. Rama Mukherjee (Bhowmik) -vs- State of Assam and
another (Judgment dated 11.12.2012 passed in Review Petition No.
79/2011). The learned counsel for the petitioner has also relied on the
judgment of the High Court of Patna in the case of Manoj Kumar
Yadav and Anr vs Sudhir Kumar Yadav and Ors (judgment dated
08.09.2025 passed in First Appeal No. 134/2017).
9. On the other hand, Mr. D. Bhattacharjee, the learned counsel for the
respondent submits that there is no error in the order of the probate
court, which has been impugned in this CRP (IO). He submits that the
shop room in question i.e., the shop No. 2 is owned by the husband of
the present petitioner, who is not a party to the probate proceeding, as
such, the Trial Court has rightly rejected the prayer for restoration of
electricity.
10. He further submits that since the only question before the probate

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court is to find out the genuineness of the last will of the mother of the
respondents, hence the dispute pertaining to disconnection of electricity
is beyond the purview of the probate court. He submits that since the
petitioner is not the proprietor of the shop in question, from where the
electricity connection has been disconnected and it belongs to someone
else(her husband), the appropriate course would have been for the
husband himself to approach the appropriate forum seeking redressal
and the present petitioner does not have any locus standi to file an
application for restoration of electricity connection. As such, he prays for
dismissal of the instant CRP (IO).
11. I have considered the submissions made by the learned counsel for
both sides and also gone through the materials available on record. I
have also gone through the rulings cited by the learned counsel for both
the parties in support of their respective submissions.
12. On perusal of the impugned order, it appears that the Probate Court
has rejected the prayer for restoration of the electricity connection in the
shop room where the husband of the petitioner is running the business
by the name and style of M/s Akash Electricals, mainly on the ground
that the dispute regarding electricity connection and payment of
electricity bill by the present petitioner is beyond the purview of the
jurisdiction of the Probate Court in the aforesaid Probate Title Suit. It was
of the opinion that the Probate Court is concerned in the aforesaid
Probate Title Suit only with the question as regards the genuineness of
the Will dated 26.07.2006 of late Bhanu Prabha Das.
13. This Court does not find any infirmity in the impugned order passed by
the Probate Court justifying any interference with the same by this Court

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in exercise of its supervisory jurisdiction, for the following reasons.
14. Section 269 of the Indian Succession Act, 1925 provides for the power
of the District Judge to interfere for protection of the property in respect
of which the probate is yet to be granted. For the sake of convenience,
the provisions contained in Section 269 of the Indian Succession Act,
1925 is quoted herein below:
“ 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 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.”
15. On perusal of the aforesaid provision, it becomes clear that though
Section 269 of the Indian Succession Act, 1925 provides for the power
and duty of the District Judge to interfere for interim protection of an un-

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administered estate, however, there is a specific statutory bar in Section
269(2) of the said Act in case the deceased who bequeathed his property
and whose Will is the subject matter of the Probate Title Suit is a Hindu,
Muhammadan, Buddhist, Sikh, or Jaina, or an exempted person. This
Court is of considered opinion that express statutory bar contained in
Section 269(2) of the Indian Succession Act, 1925 operates as an express
legislative prohibition. As such, in a probate proceeding involving a Will
by Hindu, Muslim, Buddhist, Sikh, or Jain testators, the testamentary
Court cannot bypass Section 269(2) by invoking Section 151 of the Code
of Civil Procedure, 1908 (inherent powers) to issue protective interim
injunction during the pendency of the probate proceedings. There is no
dispute to the fact that the testator in the instant case is a Hindu.
16. In the instant case, apparently there is a dispute regarding payment of
electricity bill by the proprietor of M/s Akash Electricals for last four
years, and said dispute may not be a subject matter of the probate
proceeding, and any party seeking substantive interlocutory injunction
over the estate property may take recourse to instituting an independent
civil suit under the Code of Civil Procedure where the question of
irreparable injury can be properly adjudicated taking into consideration
the rival contentions of both the parties. Further, in the present case,
there is also a question as regards whether the aggrieved party has
approached the Court seeking redressal or not. Though the petitioner has
claimed that M/s Akash Electricals is her concern which is run by her
husband, however, the respondent has contended that the husband of
the petitioner is the proprietor of M/s Akash Electricals; however, he
himself has not approached the Court. As such, the question of locus

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standi of the present petitioner in seeking relief of restoration of
electricity in the shop premises of which her husband is the proprietor is
also a question to be looked into, and same cannot be the subject matter
of a lis where the only question involved is with regard to the
genuineness of the Will of late mother of the petitioner.
17. Moreover, it is also settled proposition of law that High Courts cannot,
on the drop of a hat, in exercise of its power of superintendence under
Article 227 of the Constitution of India, interfere with the orders of the
Court inferior to it, nor can it, in exercise of this power, act as a Court of
appeal over the orders of the Court subordinate to it. In cases where an
alternative statutory mode of redressal has been provided, that would
also operate as restraint on the exercise of the powers of the High Court
under Article 227 of the Constitution of India.
18. In view of the discussions made and reasons stated in the foregoing
paragraph, this Court is of the considered opinion that this is not a fit
case to invoke the supervisory jurisdiction of this Court to interfere with
the impugned order.
19. As such, the instant CRP (IO) is hereby dismissed.
20. The parties are left to bear their own costs.
JUDGE
Comparing Assistant
Nabajyoti
Haloi
Digitally signed by
Nabajyoti Haloi
Date: 2026.11.03
13:20:12 +05'30'