Vijender Jain, J. (Oral):— The present appeal has been preferred against the order of the learned Single Judge dated 17th January, 2004 granting Letters of Administration in favour of respondent No. 1, namely, Dr. N.P.S Chawla who was the original petitioner in Probate Case No. 22/1991.

2. Briefly stated the facts are that Smt. Ram Pyari Chawla died on 27th October, 1990 leaving behind three sons; namely, H.P.S Chawla, Chawla, Dr. N.P.S Chawla, Shri T.P.S Chawla and a daughter Smt. Nirmal Devi Daniere. She also left a Will dated 4th July, 1986. Consequent to her death, her son Dr. N.P.S Chawla filed a petition seeking grant of Probate/Letters of Administration in respect of Will dated 4th July, 1986. No dispute to the Will was raised by any of the legal heirs except her son T.P.S Chawla whom she denied a share in her property except for a token sum of Rs. 1/-. Her said son filed objections to the Will, but during the pendency of the petition before the learned Single Judge, it was stated by his counsel on instructions from him, that he did not wish to press the objections provided paragraph 4 of the Will which contained reasons as to why the testator denied him a share in her estate except for a token of Rs. 1/-, was expunged while granting Probate/Letters of Administration in favour of the petitioner. The stand of the objector who is respondent No. 2 before us is that paragraph of the Will contains scandalous, defamatory and libelous statements against him and the same is therefore liable to be expunged. The learned Single Judge vide the impugned order dated 17th January, 2004 has held that the Will in question was the last testament of Smt. Ram Pyari Chawla and consequently, appointed the petitioner/respondent No. 1, namely, Dr. N.P.S Chawla as the executor of the Will. The learned Single Judge also agreeing with the submission of respondent No. 2-Shri T.P.S Chawla held that paragraph 4 of the Will which contained reasons for excluding him from the estate of the testator was defamatory/scandalous in nature. Accordingly, it was directed that the Registry would ensure that the instrument of probate would exclude paragraph 4 of the Will dated 4th July, 1986.

3. Shri Arun Khosla, learned counsel appearing for the appellant contended that there was a statutory prohibition on the power of the Court to exclude or expunge any part of the Will containing statement/reasons for exclusion of respondent No. 2 from the estate of the testator while granting Probate/Letters of Administration. It was vehemently urged that a Probate Court cannot go beyond declaring the authenticity of the Will and it therefore cannot alter, modify or delete any paragraph of the Will. In support, reliance was placed upon Sushila Bala Saha v. Saraswati Mondal, AIR 1991 Calcutta 166. In the said case, the Court held as under:

“……..A court of Probate is said to be a Court of Conscience which is not to be influenced by private arrangements of the parties. Either it grants probate to a Will or it rejects such grant. For such a court, it is said, there is no middle path for a happy compromise. The rule of law is stated to be that there can be no probate by consent. Either it is grant or refusal. The Court has to be satisfied in each case whether the Will proposed is truly the Will of a capable testator or not. It is not concerned with any other arrangement. It has been said over and over again that there is no such thing as conditional probate or an amended probate. It is either all or nothing. That seems to be sensible enough law.”

4. Reliance was also placed upon Sisir Kumar Chandra and Anr. v. Smt. Monorama Chandra & Ors. AIR 1972 Calcutta 283.

5. It was also contended by counsel for the appellant that the appellant was also one of the named executors in the Will and, therefore, the order of the learned Single Judge granting Probate and appointing respondent No. 1 alone as executor of the Will was not justified. In this regard, reliance was placed on Sailabala Dasi v. Baidya Nath Rakshit & Anr. AIR 1928 Calcutta 580.

6. As against the above submission of the appellant, Shri Ravinder Sethi, learned senior counsel appearing for respondent No. 2 has contended that no infirmity can be found with the order of the learned Single Judge as this Court which is a successor Court of Lahore High Court through Punjab High Court exercises testamentary jurisdiction and the same has been conferred by the Charter and incorporated in Clause 24 of the Letters Patent of Lahore High Court which has been adopted by the Delhi High Court under Section 10 (2) of the Delhi High Court Act, 1966. Therefore, as a Court of Equity, the High Court would be exercising its inherent power to do justice between the patties and if the High Court is satisfied that the statements made in the Will are scandalous, libelous and defamatory to the calling or esteem of a person without affecting the bequeath or the transfer of property, the High Court would be within its jurisdiction to do so. Shri Sethi also referred to Section 295 of Indian Succession Act which provides for the applicability of Civil Procedure Code and thereby contended that the Court while exercising power under Section 151 of the Code of Civil Procedure can order for deletion of such scandalous material from the Will.

7. In this context, reliance was placed upon Amalgamated Commercial Traders Pvt Ltd. v. C. Hariprasad, AIR 1966 Madras 161. In this case the Court held as under:—

“Sri G. Ramaswami, appearing for the respondent, took a preliminary objection that Order VI, Rule 16 C.P.C, can be invoked only in respect of pleadings and that there is no corresponding provision in respect of affidavits in Order XIX C.P.C Order XIX, Rule 27 of the Supreme Court corresponds to Order VI, Rule 16 C.P.C Order XXVIII, Rule 11 of the Rules of the Supreme Court provides that the court or judge may order to be struck out from any affidavit only matter which is scandalous. Sri G. Ramaswami stressed on the fact that there is no corresponding provision in the Civil Procedure Code and that even in England the said rule is confined only to “scandalous” matters in affidavits. It is clear from Mullah's Civil Procedure Code, 12th Edn., Volume 1 at page 593, that every court has an inherent power, quite independently of Order VI, Rule 16, C.P.C, to strike out scandalous matter in any record or proceeding. In Chriistie v. Christie, (1893) 8 Ch A 499 it is stated that the court has a duty to discharge towards the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matter. In re Clive Durant, ILR 15 Bom 488 the High Court of Bombay refused to allow an application for bail containing defamatory allegations against the trying magistrate to be filed and ordered it to be returned. In Zamindar of Tuni v. Benayya, ILR 22 Mad 155, the High Court of Madras ordered the objectionable passages in a Memorandum of appeal alleging partiality against the Judge who decreed the suit to be expunged. Thus under S.151, C.P.C it is open, to the court to expunge scandalous allegations which are irrelevant to the proceedings, even if they are contained in an affidavit. But as pointed out in the passage in Mulla referred to above it must be noted that nothing can be scandalous which is relevant.”

8. Learned counsel further contended that the certificate containing the Probate or the Letters of Administration is a letter to administer the estate of the deceased in rem and that by deletion of paragraph 4 from the Will neither the bequeath nor the disbursement of the estate would get affected in any manner. As per the counsel, respondent No. 2 came to know about the scandalous and libelous statements contained in the Will only after the death of the deceased when respondent No. 1 had applied for probate of the same. It was therefore contended that since the testator was dead, respondent No. 2 was left with no other recourse to remedy the situation except approaching the Court for deletion of that part of the Will which paints him in bad hues, it was also contended that in terms of Section 151 of the Code of Civil Procedure and Section 561 A of the Cr.P.C 1898 which has now been replaced by Section 482 of the Cr.P.C 1973, the Court in exercise of its inherent powers can expunge scandalous or defamatory material. Reliance in this regard was made to State of Uttar Pradesh v. Mohd. Nairn, AIR 1964 SC 703, more particularly, to the following paragraph:—

“It is now well settled that the section confers no new powers on the High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The section provides that those powers which the court inherently possesses shall be preserved lest it be considered that the only powers possessed by the court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code….”

10. It was also contended that where the codified statute is silent on any point then it is permissible to look to the other laws. To buttress this submission, reference was made to Board of Trustees of the Port of Bombay & Ors. v. Sriyanesh Knitters, (1999) 7 SCC 359.

11. On the other hand, Shri S.C Dhanda the learned counsel appearing for respondent No. 1 submitted that the petition for grant of probate was filed by respondent No. 1 alone and that the appellant did not join him in seeking probate of the Will nor at any time asked for being transposed as co-petitioner with him. As such he could not be appointed executor to the Will as was being claimed by him. It was rather submitted that the appeal filed by him was not maintainable.

12. It was further submitted that the conduct of the appellant in the course of the probate proceedings was totally inconsistent with that of an executor inasmuch as he moved an application for appointment of a receiver which is self-contradictory with the position of an executor. It was also submitted that the appellant got possession of another property i.e farm house in a clandestine manner and lodged a report against respondent No. 1 for trespass and also filed a suit for injunction restraining the Said respondents and other co-sharers from entering the said farm house.

13. We have given our careful considerations to the arguments advanced by learned counsel for all the parties. The law with regard to grant of probate or Letters of administration is settled. The probate court will not go into any question except with regard to the authenticity of the Will, i.e, whether the executor at the time of making the Will was of sound disposing mind and was aware of the bequeath and whether the Will has been attested by the witnesses as required by law. The probate court will also not go into the question of title. At the outset the argument of the appellant that the probate court has no jurisdiction to order for deletion of material which is per se defamatory scandalous or libelous seems to be specious but is it so? We feel otherwise.

14. The propounder of Will approaches the Court exercising the testamentary jurisdiction and once the Court is satisfied about the genuineness of the Will, the Court grants letter of administration or the probate as the case may be. When the letter of administration/probate is granted by the court, the Will is annexed with the certificate. That becomes a document in rem. If it is found by the Court in exercise of its jurisdiction that any material in the Will is irrelevant, scandalous, defamatory, the Court is not expected to sit with folded hands and mechanically grant letters of administration or probate with such scandalous, libelous, defamatory material contained in the Will which neither has any bearing on the properties nor on the bequeath. We rather feel that refusal by the Court to strike off such irrelevant material would tantamount to abdication of its jurisdiction and would bring about a situation where a person who has allegedly been defamed will be left with no recourse for redressal as the person who has made the libelous or scandalous or defamatory statement has since died and no civil or criminal proceedings can be initiated against such a person. But then law does not perceive a situation where a person is rendered remediless. Take a case, hypothetically though, that in a Will the testator has said that something should be done by the beneficiary of the Will which is totally contrary to law or public policy or may be an offence, would it mean that the Court cannot delete or expunge that part of the Will because it only has power to grant or not to grant the Letters of administration or probate? This position, if accepted, will be preposterous and goes against the policy of law. By deletion of paragraph 4, neither the Will is altered nor the distribution of the properties is modified to any extent. One thing more which has to be understood is that when the Court grants Letters of administration or the probate, the original Will is not affected. It is only the Letter of Administration or the probate,.which will not carry paragraph 4 which is a document in rem which finds obliterated from the Will. We fully agree with the submission of the learned counsel for respondent No. 2 that while exercising testamentary jurisdiction, this Court does not cease to be a Court of equity and when provision of Civil Procedure Code applies in terms of Section 295 of the Indian Succession Act, the Court while exercising its inherent powers is not without jurisdiction to delete or expunge material which is scandalous, defamatory or libelous. In Board of Trustees of Port of Bombay (supra), the Court relied upon the following observation of House of Lords in Pioneer Aggregates (UK) Ltd. v. Secretary of State for the Environment, All ER 363:—

“Planning law, though a comprehensive code imposed in the public interest, is, of course, based on land law. Where the code is silent or ambiguous, resort to the principles of private law (especially property and contract law) may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But such cases will be exceptional. And, if the statute law covers the situation, it will be an impermissible exercise of the judicial function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer solution to the problem being considered. As ever in the field of statute law it is the duty of the courts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole.”

15. The learned Single Judge has noted that there is no statutory embargo on the power of Court while granting Letter of Administration to direct a part of the Will containing defamatory statement to be excluded while directing the issuance of probate. We agree with the learned Single Judge and hold that in the absence of any statutory prohibition, the principle of equity would be applicable to do substantive justice between the parties.

16. We find no force in the argument of counsel for the appellant that the appellant was a named executor in the Will and therefore he too was entitled to probate. Section 311 of the Indian Succession Act contemplates that when there are several executors or administrators the power of all may, in the absence of any direction to the contrary be exercised by any one of them who have proved the Will or taken out administration. Reliance placed by the appellant upon Sushila Bala Saha's case (supra) would not be applicable as the facts of that case are different from the facts of the present case. In that case the widow who was the executor had applied for grant of probate, whereas, in this case the appellant not only did not apply for grant of probate as an executor but also got receiver appointed during the course of proceeding for grant of Letters of administration/probate. The authority cited by the learned counsel for the appellant in the case of Sisir Kumar Chandra (supra) is also not applicable to the facts of the present case. In that case the learned Single Judge of the Calcutta High Court held that probate Court cannot pass decree in terms of private agreement between the parties. There is no dispute with the proposition of law as enunciated in the said judgment.

17. Keeping in view of the conduct of the appellant, the learned Single Judge has rightly granted probate in favour of respondent No. 1 and issued necessary directions in the impugned judgment. We find no infirmity with the order passed by the learned Single Judge. There is no merit in this appeal. Dismissed.