M.C. Jain, J.
1. A-3/1-2, A-5. A-8 and A-9. The background concerning the dispute may be related for proper appreciation. The present testamentary case has been filed by one Naveen Chand Seth for the grant of letters of administration in respect of the estate of Smt. Raj Kumari Seth, comprising of her half share in Nazu1 land plot No. 34. George Town. Allahabad. She was the mother of the petitioner and died on February 11. 1999. Smt. Poonam Kakkar and Praveen Chand Seth have been shown as other next of kin of the deceased. Smt. Poonam Kakkar is her daughter whereas Praveen Chand is her another son-brother of the petitioner Naveen Chand Seth. It is an admitted fact that lease deed in respect of the plot in question had been executed on October 23. 1914, to be retrospectively effective from the year 1910 for a period of 90 years subject to renewal after every thirty years. The original lessee was Rai Keshari Naratn Chaddha-predecessor of the parties. He left behind him his son Triyugi Narain Chaddha. After the death of Triyugi Narain Chaddha, lease rights had been inherited by his two sons Satjugi Narain Chaddha and Triloki Narain Chaddha and lease was renewed in their names on 17.9.1946 to be retrospectively effective from 1940. The contest has been offered in these proceedings by Tej Narain Chaddha and Deepak Narain Chaddha. TeJ Narain Chaddha is the son of Triloki Narain Chaddha (deceased) and Deepak Narain Chaddha is the own son of Te] Narain Chaddha. As mentioned above, the second renewal of the lease was made for a period of thirty years effective from 1.1.1940 on 17,9.1946 in the names of Satjugl Narain Chaddha and Triloki Narain Chaddha. Satjugi Narain Chaddha-father of Smt. Raj Kumari Seth expired on 1.1.1962 and it is urged by the petitioner that the right, title and interest owned and possessed by him devolved upon his sole issue, i.e.. daughter Smt. Raj Kumari Seth as his own wife had predeceased him. As per the petitioner. Tej Narain Chaddha and Deepak Narain Chaddha who are claiming through their father and grandfather are entitled only to half share in the leasehold property but they are trying to usurp the entire property including the share of the deceased Smt. Raj Kumari Seth which actually devolved upon her two sons and daughter. The said Tej Narain Chaddha and Deepak Narain Chaddha are trying to create right in their favour by applying for conversion of the property in dispute from leasehold to freehold and they are also trying to transfer the same as also to change the nature of the land, representing themselves to be the exclusive owners and successors-in-interest of the entire property. Their such act is said to have necessitated the filing of the present petition.
2. Simultaneously, the petitioner made an application A3/1-2, praying for passing appropriate order for protection of the property in respect of which letters of administration have been sought. This Court issued notice and in the meanwhile, directed the parties to maintain status quo in respect of the disputed property--Nazul Piot No. 34. George Town. Allahabad, regarding its nature and present condition. There against, Tej Narain Chaddha and his son Deepak Narain Chaddha have made application A5 with affidavit A6 to recall the said order. Their contention may be summarized thus : The petitioner has concealed the material facts and has made false averments to obtain ex parte interim order which amounts to abuse of the process of the Court. On the expiry of the second renewal of the lease in 1970, a fresh lease deed was executed in 1971 between the State Government on the one hand and Tej Narain Chaddha and his father Triloki Narain Chaddha on the other. This fresh lease deed created rights in their favour as lessee of the Nazul Property No. 34 in question. This fact has conveniently been concealed by the petitioner. Triloki Narain Chaddha being the father of TeJ Narain Chaddha and Ganesh Kumari Anand changed the mode of devolution by testamentary disposition in favour of his grandson Deepak Narain Chaddha in the year 1983 by executing a will dated 3.7.1983 (Annexure-2 to the affidavit A6). Writ Petition No. 8585 of 2000. Tej Narain Chaddha and another v. State of U. P. and others, is also pending between the parties in which the petitioner Naveen Chand Chaddha is respondent No. 3 and an interim order dated 22.2.2000 has also been passed. The right of Tej Narain Chaddha was in his own capacity and not through his father Triioki Narain Chaddha. The Government Order erroneously holding half share of Tej Narain Chaddha and Deepak Narain Chaddha has been stayed by this Court in writ petition referred to above. So far as Smt. Raj Kumari Seth is concerned, she does not have any right to the properly in dispute. There is nothing to establish that she had ever been in possession of the same. So far as Naveen Chand Seth and Praveen Chand Seth are concerned, they are residing in one of the houses, i.e.. house No. 34/12. (approximate area about 250 Sq. yards only). So far as this portion of the property is concerned, their possession is not disputed. Nor the same has ever been interfered with in any manner. No objection by Smt. Raj Kumari Seth or her heirs was ever raised after the second renewal of the lease in favour of Tej Narain Chaddha and Triloki Narain Chaddha.
3. Counter and rejoinder-affidavits have been exchanged between the parties and I have heard Sri Navin Sinha learned counsel for the petitioner as also Sri Manish Goel representing Tej Narain Chaddha and Deepak Narain Chaddha who have made application A5 for recall of the restraint order dated 21.4.2000. It appears that as per these persons, Satjugi Narain Chaddha executed a will dated 19.4.1957 bequeathing his right in the Wazul land in question in favour of Tej Narain Chaddha (son of Triloki Narain Chaddha) and in respect of his house constructed on the Nazul land in favour of his wife Smt. Shakuntla Devi and daughter Smt. Raj Kumari Seth. Triloki Narain Chaddha executed a will in respect of lease rights in favour of his grandson Deepak Narain Chaddha son of Tej Narain Chaddha on 3.7.1983. It seems to be so that it was on the basis of the will executed by Satjugi Narain Chaddha in favour of Tej Narain Chaddha on 19.4.1957 that second renewal of lease was made in 1971 in favour of Triloki Narain Chaddha (who was one of the lesses with Satjugi Narain Chaddha in the first renewal of the lease deed executed in 1946) and in favour of Tej Narain Chaddha.
4. On the basis of the will dated 19.4.1957 allegedly executed by Saljugl Narain Chaddha and the will dated 3.7.1983 allegedly executed by Trijugi Narain Chaddha in favour of Deepak Narain Chaddha. they applied for mutation of their names before the Additional District Magistrate (Nazul). Allahabad. Objections were filed by Smt. Raj Kumari Seth but the same were rejected and mutation in favour of Tej Narain Chaddha and Deepak Narain Chaddha was ordered by the A. D. M. It would be recalled that in the second renewal of the lease in 1971, the successors of Satjugl Narain Chaddha had already been excluded from amongst the lessees.
5. It also appears that Smt. Raj Kumari Seth raised objections before the District Magistrate, Allahabad and he cancelled the mutation made in favour of Tej Narain Chaddha and Deepak Narain Chaddha on the basis of the will vide order dated 17.8.1998. The matter was made an issue before the Commissioner by Tej Narain Chaddha by means of a representation and the latter reversed the order of the District Magistrate. The District Magistrate was asked to give a fresh hearing to the parties and thereafter to pass orders. Against it, a Writ Petition No. 15926 of 1999 was filed by the present petitioners. Naveen Chand Seth and others which was dismissed on 5.7.1999 by Hon'ble O. P. Garg. J. A Special Appeal No. 642 of 1999 was preferred before the Division Bench which was decided on 18.8.1999. The relevant last paragraph of the Judgment in special appeal reads thus :
'Accordingly, we dispose of the appeal by making it clear that the parties will be at liberty to seek adjudication upon their right, title and interest in the disputed property through a regular suit which may be filed before the appropriate forum. The finding given by the learned single Judge will have no bearing in so far as such suit is concerned and the competent court, hearing such suit, if filed, would be at liberty to proceed in accordance with law and decide the suit untrammelled by the findings arrived at by the learned single Judge. We further make it clear that the judgment of the learned single Judge will not be given effect to.'
6. In the meantime, another development took place that the Government passed an order dated 9.2.2000 (Annexure-4 to the affidavit A6) that Smt. Raj Kumari Seth. her daughter and sons on the one hand and Tej Narain Chaddha on the other were entitled to half share each as lessee of the plot No. 34 in question. The District Magistrate. Allahabad, was directed to take proceedings for conversion of the property to freehold accordingly. Aggrieved. Tej Narain Chaddha preferred Writ Petition No. 8585 of 2000 in which, a Division Bench of this Court passed an interim order dated 22.2.2000 directing that the District Magistrate would not take any action in pursuance of impugned order of the State Government.
7. So, above is the position where the parties at present stand as per the orders of the Court.
8. On a careful consideration of the material on record and arguments of the learned counsel for the parties, I am firmly of the view that no interim or restraint order is required to be passed in this testamentary case, meaning thereby the restraint order passed on 21.4.2000 deserves to be discharged. I should now state the reasons for the same.
9. It should first be pointed out that the petitioner has not come with clean hands. Material facts have been concealed by him. In the testamentary case filed on 20.4.2000, nothing was averred about the outcome of the Writ Petition No. 15926 of 1999 which was dismissed on 5.7.1999 and in which the present petitioner was one of the petitioners. The outcome of the Special Appeal No. 642 of 1999 was also equally concealed. Not only this, the order dated 22.2.2000 passed in Writ Petition No. 8585 of 2000 was also not brought to the notice of the Court, The fact of the second renewal of the lease having been made in 1971 only in favour of Tej Narain Chaddha and Deepak Narain Chaddha was also concealed, though this fact had earlier been, admitted by the petitioner in his reply to Writ Petition No. 8585 of 2000.
10. Moreover, it is gleaned from the copy of the memo of special appeal preferred by the petitioner, his brother and sister (Special Appeal No. 642 of 1999) against the order dated 5.7.1999, passed by Hon'ble O. P. Garg. J. in Writ Petition No. 15926 of 1999. that the observations contained in the order dated 5.7.1999 would cause prejudice to them in the event of invoking the jurisdiction of the civil court. It can justifiably be inferred that their thrust was of seeking adjudication regarding their alleged right, title and interest in the disputed property through a regular suit. It were they who were aggrieved by the order of the Hon'ble single Judge passed in Writ Petition No. 15926 of 1999 on 5.7.1999 and they had made an issue of the matter in special appeal. It was seemingly because of their such stand that the special appeal was disposed of with the relevant observations (of the order) reproduced in the earlier discussion.
11. It is established position of law that the testamentary court does not decide title of the property in respect of which letters of administration are claimed. Section 220 of the Indian Succession Act provides that letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death. When letters of administration have been granted, the administrator becomes entitled to all the rights which the deceased had at the time of his death vested in him although no right of action accrues to the administrator until he has obtained the letters. The title of the administrator, though it cannot exist until the grant of administration, however, relates back to the time of the death of the person in respect of whose estate the administration has been granted. Hence, the administrator may recover against the wrongdoer who has seized or converted the goods of the estate by an action of trespass or trover. It is also beyond doubt that the testamentary court has the exclusive jurisdiction to adjudicate upon the genuineness or otherwise of a will, which is either relied upon by the petitioner/plaintiff in support of his petition/plaint or is set up by the opposite party/defendant in defence as having been executed by the deceased, to defeat the claim of the petitioner/plaintiff. In the present case also, the opposite party Tej Narain Chaddha is relying on a will dated 19.4.1957 allegedly executed by Satjugi Narain Chaddha (predecessor of the petitioner in favour of Tej Narain Chaddha in respect of his rights in the Nazul land in question). These are the broad principles concerning the testamentary proceedings.
12. The fact is very much there that in the garb of the present testamentary proceedings, the petitioner virtually and in substance seeks to establish his title in respect of half share in the Nazul land in question. No action was brought by him or his mother Smt. Raj Kumari Seth (who died on 11.2.1999) to challenge the second renewal in favour of Tej Narain Chaddha and Triloki Narain Chaddha in 1971. This testamentary court, as observed above, would not decide the title to the property in question. Instead of bringing a proper suit concerning the right or title in respect of the disputed property by means of a regular suit against his opponents, the petitioner has chosen the circuitous route of coming up in this petition for the grant of letters of administration. I do not mean to say that the petition is not maintainable as such. The point that I wish to draw home is that the petitioner has resorted to an indirect way which, even after full culmination, would not declare the right or title, if any, of the petitioner in respect of the disputed property.
13. As is clear from the litigation the parties had in the form of two writ petitions referred to above, neither the Government Order apportioning half share, each in favour of two contesting parties became final, nor the mutation proceedings have taken a final shape. Otherwise also, mutation cannot be a decisive factor to determine the title. In case of dispute, the title has got to be determined by means of a regular suit only which neither party has chosen to file.
14. I should also make a reference to Section 212 of the Indian Succession Act :
'212. Right to intestate's property.--(1) No right to any part of the property of a person who had died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent Jurisdiction.
(2) The section shall not apply in the case of the intestacy of a Hindu, Mohammedan Buddhist, Sikh, Jain or Indian Christian or Parsi.'
15. Sub-section (2) makes it clear that necessity for obtaining letters of administration to support a claim to any part of a property of a person who has died intestate has no application in the case of Hindu, Mohammedan, Buddhist. Sikh. Jain or Indian Christian or Parsi. This sub-section, thus, excludes the property of a Hindu dying Intestate. It necessarily follows that the petitioner, his brother or his sister could straightaway by means of a regular suit claim for the declaration of his/their alleged title in respect of half of the Nazu1 plot in question, without resorting to the present proceedings. It appears that the petitioner has resorted to these proceedings without any legal necessity. His aim is to establish his title in respect of half portion of the plot in question but he has elected/chosen a circumlocutory procedure incapable of delivering goods even if this petition ultimately succeeds. Anyway, the petition would be dealt with as per the law of the land.
16. In view of the above discussion, no interim order is required to be passed in these proceedings. The restraint order passed on 21.4.2000 is discharged. Applications A3/1-2 as well as A5, A8 and A9 under decision stand disposed of accordingly.
The case be now listed after two weeks for further appropriate orders.