High Courts Retain Plenary Powers in Testamentary Proceedings to Order Criminal Investigation for Protecting Estate in Custodia Legis
1. Introduction
In BAI AVABAI HORMUSJI TATA TRUST v. SHERNAZ FAROUKH LAWYER,
2026 INSC 540, the Supreme Court of India considered whether a High Court,
while exercising testamentary jurisdiction, can direct a criminal investigation
into suspected siphoning and misappropriation of estate assets.
The dispute arose from competing Wills of the deceased, Purvez Burjor Dalal,
a Parsi Zoroastrian bachelor who died leaving an estate valued at over Rs. 100 crores.
One Will was propounded by the respondents, while a later Will was propounded by
Manek Dara Sukhadwalla, who claimed to be the sole executor.
During the pendency of the probate proceedings, the Bombay High Court appointed
an Administrator pendente lite under Section 247 of the Indian Succession Act,
1925. The Administrator later reported suspicious transfers of estate funds to
entities including M/s. Amoha Traders Private Limited and
Bai Avabai Hormusji Tata Trust. Allegations of collusion, fraudulent revival of
a dormant trust, common addresses among entities, and non-cooperation with the
Administrator led the learned Single Judge to direct a court-monitored criminal
investigation.
2. Summary of the Judgment
The Supreme Court dismissed the appeals and upheld the Bombay High Court’s order
directing the Administrator to initiate a criminal complaint, with investigation to
be supervised through reports to the High Court.
The Court held that although a probate court’s primary function is to examine the
genuineness and due execution of a Will, a High Court does not lose its constitutional
character as a superior Court of record merely because it is exercising testamentary
jurisdiction.
The Court approved the High Court’s reasoning that where estate property is
in custodia legis and under the control of an Administrator appointed by the Court,
the Court has inherent and plenary powers to prevent depletion, misappropriation,
or abuse of process.
The Supreme Court therefore held that the order for investigation was legally
sustainable, especially in view of allegations of deceit, suppression of bank accounts,
transfer of funds to suspicious entities, and obstruction of the Administrator’s duties.
3. Analysis
3.1 Precedents Cited
The appellants relied on this precedent to argue that the jurisdiction of a
testamentary court is confined to determining whether a Will is genuine and duly
executed. The Supreme Court accepted that this is the primary function of a probate
court but rejected the broader submission that the High Court is powerless to act
where estate assets are being fraudulently diverted.
The Court clarified that Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon
cannot be read as stripping the High Court of its constitutional and inherent powers
when the estate before it is at risk.
Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.
The appellants relied on this case to contend that the Indian Succession Act, 1925
is a self-contained code and that the High Court could not travel outside its statutory
framework. The Supreme Court rejected this reliance.
It held that Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. deals with exclusion
of general appellate remedies where a special statute provides a specific appellate
mechanism. It does not mean that a Constitutional Court cannot direct investigation
when fraud, criminal breach of trust, forgery, or conspiracy is alleged in relation
to estate property.
Pandurang Shamrao Laud v. Dwarkadas Kalliandas
This precedent was relied upon to explain the legal status of an Administrator
pendente lite. The Court reiterated that such an Administrator is similar to a
receiver and represents the estate for all purposes except distribution.
This supported the conclusion that the Administrator is the “hand of the Court”
and that obstruction of his duties is effectively obstruction of the Court’s control
over the estate.
The Supreme Court referred to this case in the context of a Court Receiver and
applied its reasoning to an Administrator pendente lite. The principle drawn was that
property in the possession of a court-appointed officer is in custodia legis,
and such officer must take reasonable steps to preserve and maintain the property.
The Court also emphasized that if civil or criminal proceedings are necessary for
preservation of the property, the court-appointed officer may seek the Court’s leave
to initiate appropriate action.
M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd.
This was a key authority supporting the High Court’s inherent and plenary powers.
The Supreme Court relied on it to state that High Courts in India are superior Courts
of record with inherent and plenary jurisdiction, unless expressly or impliedly barred.
The Court used this precedent to justify the High Court’s ability to devise
procedural mechanisms suited to the facts of a case, especially where statutory
silence would otherwise allow abuse of process or defeat justice.
The Court approved the reasoning in this Delhi High Court decision that a High Court
exercising testamentary jurisdiction does not cease to be a court with inherent powers
or a court of equity.
This precedent reinforced the proposition that testamentary jurisdiction is not a
narrow procedural silo. The High Court may pass necessary protective orders to
preserve the estate and prevent misuse of its process.
Sahara India Real Estate Case (supra)
The Division Bench of the Bombay High Court had referred to this case for the
broader principle that High Courts may issue appropriate orders under their inherent
powers where the interests of justice require such action.
Though that case concerned media reporting and postponement orders, the principle
applied here was that constitutional courts possess flexible inherent powers to
protect the administration of justice.
The Court cited this case to support the proposition that where a massive fraud or
conspiracy comes to light, private litigants cannot be expected to investigate such
matters themselves.
In such circumstances, the Court may direct investigation by police or a state agency
having statutory powers to collect evidence and submit a report.
A R Antulay v. R.S. Nayak
This precedent was discussed on the concept of jurisdiction. The Supreme Court noted
that jurisdiction is derived from law and that a court cannot confer jurisdiction on
itself where none exists.
However, the Court distinguished the appellants’ argument by holding that the Bombay
High Court did possess jurisdiction as a superior Court of record and as a court
exercising concurrent powers under the Indian Succession Act.
3.2 Legal Reasoning
The Supreme Court’s reasoning rests on four central principles:
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Testamentary jurisdiction is not divorced from constitutional jurisdiction:
A High Court does not cease to be a superior Court of record under Article 215
merely because it is hearing a probate or testamentary matter.
-
The estate was in custodia legis:
Once an Administrator pendente lite was appointed, the estate came under the
Court’s protection. Parties could not unilaterally deal with it in a manner that
risked depletion.
-
The Administrator is the hand of the Court:
The Administrator’s inability to obtain disclosures and recover funds due to
alleged non-cooperation justified stronger judicial measures.
-
Investigation does not by itself cause prejudice:
The Court held that if criminal prosecution is eventually launched, the appellants
will have full opportunity to defend themselves under criminal law.
The Court rejected the appellants’ argument that Sections 211 and 307 of the Indian
Succession Act gave the alleged executor unrestricted authority to transfer estate
funds. It held that an executor’s authority is not a licence to plunder. Where rival
Wills are pending adjudication and the estate is under the Court’s protective control,
unilateral transfers to suspicious or connected entities may amount to intermeddling.
The Court also rejected the contention based on Section 340 of the Code of Criminal
Procedure. It held that the impugned direction was not merely a Section 340 CrPC
proceeding for offences affecting administration of justice, such as perjury. Rather,
it was a broader exercise of inherent powers to investigate suspected siphoning,
fraudulent banking transactions, and misuse of shell or dormant entities.
3.3 Impact of the Judgment
This judgment is significant for testamentary litigation and estate administration.
It establishes that courts are not helpless when probate proceedings reveal possible
criminality in the handling of estate assets.
The ruling will likely influence future cases in the following ways:
-
High Courts may more readily use inherent and plenary powers to protect estates
during pending probate disputes.
-
Executors of disputed Wills will face stricter scrutiny if they deal with estate
assets before probate is granted, especially where rival Wills exist.
-
Administrators pendente lite will be strengthened in their role as court officers
tasked with preserving estate property.
-
Parties cannot shield suspicious transactions behind the argument that probate
courts only decide the genuineness of Wills.
-
Civil and criminal processes may proceed in parallel where the facts disclose
possible criminal conduct connected with estate assets.
4. Complex Concepts Simplified
Administrator pendente lite
An Administrator pendente lite is a temporary administrator appointed by the Court
while a probate dispute is pending. The role is to preserve and manage the estate
until the dispute over the Will is decided.
Custodia legis
Custodia legis means “in the custody of the law.” When property is under the
control of a court-appointed officer, no party can interfere with it without the
Court’s permission.
Plenary and inherent powers
Plenary powers are broad constitutional powers possessed by superior courts.
Inherent powers are powers that courts possess to ensure justice, prevent abuse of
process, and protect the integrity of proceedings, even where no specific statutory
provision directly applies.
Probate jurisdiction
Probate jurisdiction concerns the Court’s authority to decide whether a Will is
genuine and validly executed. This judgment clarifies that while this is the primary
function, the High Court may also act to protect the estate from fraud or depletion.
Intermeddling
Intermeddling refers to unauthorized interference with the property of a deceased
person. In this case, suspicious transfers of estate funds before final adjudication
of the competing Wills were treated as serious enough to justify investigation.
5. Conclusion
The Supreme Court upheld the Bombay High Court’s power to direct a criminal
investigation in a pending testamentary dispute where estate assets appeared to
have been siphoned and the court-appointed Administrator was obstructed.
The key takeaway is that a High Court exercising testamentary jurisdiction remains
a Constitutional Court with inherent and plenary powers. It may act decisively to
protect an estate in custodia legis, prevent abuse of process, and ensure that
probate proceedings are not used as a cover for fraud.
The judgment is an important precedent on the intersection of probate law, court
supervision of estates, and criminal investigation into estate-related fraud.