ORDER R.R.K. Trivedi, J.
1. This appeal is from the judgment and order dated 8-12-1988, passed by the learned single Judge, in Testamentary Case No. 2 of 1985, tiled by appellant under Seclion 302 of the Indian Succession Act, 1925 (hereinafter referred to as the Act) for giving such directions to the Executor as prayed in the petilion.
2. Brief fads giving rise to appeal are that Lady Kailasa, widow of late Sir J. P. Srivastava executed a will on 14-10-1960 and appointed Shri Rajeshwar Dayal (respondent No. 1), Shri Narottam Sahgal, 1CS, Shri Venkatachari, ICS, and Rani Phool Kumari, Rani of Sherkol, as the executors of the said will. Lady Kailash died on 12-11-1962 leaving behind two sons, namely Jai Krishna Srivastava (petitioner-appellant), Hari Krishna Srivastava (respondent No. 2) and five daughters, namely Lakshmi (since deceased and now represented by her son Siddharth Narain-respondent No. 3), Smt. Sushila (respondent No. 4), Smt. Sarla Sahgal (respondent No. 5), Smt. Shakuntala Masani (respondent No. 6) and Km. Malli Srivaslava (respondent No. 7). District Judge, Lucknow, by order dated 7-12-1963 granted a probate in respect of the aforesaid will. The present dispute is confined to two properties situate at Kanpur. The first property is property No. 4/276-B, Parvati Bagla Road, Kanpur, which was disposed of by Lady Kailash in favour of her three daughters Lakshmi, Sushila and Sarlaunder Clause 3 (b) of the will. Half portion of this property was in occupation of Imperial Tobacco Company as tenant. The other half of the property was in occupation of respondent No. 2 Hari Krishna Srivastava from life limeof Lady Kailash as tenant on token rent of Re. 1/- per month. Clause 3(b) which is relevant for this appeal is being reproduced below : "3(b) : To my daughters Lakshmi, Sushila and Sarla I give the other half of the said property including the tenament now occupied by my son Hari Krishna who shall either vacate the said tenament or pay to my Daughters a fair rent for the same. Any interest which Hari Krishna is to receive under this will is dependant and subject to his paying a fair rent to my daughters for the said tenament, if he continues to occupy it. If he does not agree to pay fair rent to my daughters, then any interest that he is to receive under this will is hereby revoked and such interest shall fall into the residue of my estate. My daughters Lakshmi, Sushila and Sarla shall be entitled to the said half plot with the said lenament absolutely as tenants-in-common in equal shares."
3. The second property known as 'Kailash' located in Nawabganj, Kanpur, was disposed of under Clause 4 of the will in favour of two sons, namely Jai Krishna and Hari Krishna in equal shares with the condition that the sons shall - undertake the liability to pay her debts and medical, testamentary and funeral expenses and the cost of administration of her estate including estate duty and probate duty. Some other conditions were also mentioned. However, they are not relevant for the appeal.
4. The Executor through letter dated 31-1-1967 fixed the liabilities of the testatrix at Rs. 3,50,000/- which was required to be paid by her sons in equal shares, namely Rs. 1,75,000/- each. With regard to the payment of the aforesaid amount disputes were raised from time to time by executor and by petitioner-appellant and respondent No. 2. The executor, respondent No. 1, however, on 15-12-1984 wrote letters to appellant and respondent No. 2 demanding Rs. 5.95,677.42 p. from appellant and further required from him to give an undertaking relating to the payment of the present and future taxes etc. relating to the entire estate. From respondent No. 2, however, he demanded only Rs. 1,75,000/-along with Rs. 24,667.42 p. Aggrieved by the discriminatory demand raised by the executor through the aforesaid letters, appellant filed petition before this Court under Section 302 of the Act seeking the following directions to the executor;
(a) direct the executor not to give effect to the stipulations contained in letters dated 15-12-1984 addressed to the petitioner and respondent No. 2 contained in Annexures 8 and 13 respectively and the letter dated 11-1-1985 issued by the executor contained in Annexure 12.
(b) direct the executor to accept a sum of Rs. 3,50,000/- from the petitioner towards petitioner's liability to avail of the settlement of the entire premises Kailash and direct the executor to give his assent thereto.
5. Appellant's claim for the settlement of entire premises Kailash in his favour is based on his contention that as respondent No. 2 failed to pay fair rent of the tenamcnt in his occupation to the three daughters as contemplated under Clause 3(b) of the will, the appellant is entitled for the entire premises Kailash.
6. After hearing the parties, learned single Judge by the impugned order dated 8-12-1988 has allowed the application of appellant in part and held that the executor's demand of Rs. 5,95,677.42 p. from the appellant by letter dated 15-12-1984 is not justified. The executor has been directed to issue fresh letter making demand from petitioner in accordance with law and in case the petitioner agrees with the said demand which is to be made by the executor now, the executor shall give assent to the petitioner for the vesting of half share of Kailash in him, However, the claim of petitioner-appellant to accept a sum f of Rs. 3,50,000/- from him and to avail the settlement of the entire premises Kailash has been refused. It has been found that the petitioner is entitled only to the half share in Kailash as per desire of the testatrix. It has also been found that respondent No. 2 has not violated the conditions imposed by the testatrix under para 3 (b) and has thus not disentitled himself to the benefit accrued to him under the will in question. Aggrieved by the aforesaiid order this appeal has been filed.
7. We have heard learned counsel for parlies. The dispute in the present appeal is confined to the following questions :--
(i) What criterion should have been adopted by the executor for determining the fair rent of the property in occupation of respondent No. 2 from time to time ?
(ii) Whether a fair rent for the tenament in occupation of respondent No. 2 was agreed upon between the parties and was paid by respondent No. 2 and he complied with the condition under Clause 3 (b) of the Will ?
(iii) Whether the fair rent as agreed in 1964 could not be termed a fair rent for all times to come and it ought to have been increased periodically and paid by respondent No. 2 and the vesting of the property under the will was subject to such payment ?
(iv) Whether respondent No. 2 failed to pay the fair rent as contemplated under Clause 3(b) of the wiil and thus has disentitled himself for the benefits under the will in question including the half share in property known as Kailash ?
8. Before we enter into the consideration of the aforesaid questions, it appears necessary to consider the scope of Section 302 of the Act. Though the learned single Judge has considered the entire claim of petitioner raised before him and recorded findings that respondents No. 2 has not disentitled himself for the half share in the properly of Kailash and appellant is not entitled for the entire estate as claimed by him, but we have serious doubt as to whether such a contentious dispute about title and vesting ofthe property under the will couldbe raised and decided under Section 302 of the Act. Section 302 of the Act reads as under :--
"302. Directions to executor or administrator when probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof."
9. Section 302 isfound in Chapter IV, Part IX of the Act. Part, IX has the heading 'Probate, letters of Administration and Administration of Assets of deceased' and Chapter IV has the heading 'of the practice in granting and revoking probate and letters of administration'. A perusal of Section 302 quoted above shows that it deals with a situation after grant of probate or letters of administration in respect of any estate under the Act. The High Court may, on an application made to it, give to the executor or administrator any general or special direction in regard to the estate or in regard to the administration thereof. As per heading of, Chapter IV, Section 302 has nothing to do with the granting and revoking probate and letters of administration. The only object left as provided in the main heading of part IX is for administration of assets of deceased. The word used in Section 302 is only 'directions' which generally are granted in summary proceedings and are discritionary on the part of the High Court. It capnot be equated with a suit tried in the civil court for determining the questions of title or questions of fact and law. What has been observed above does not mean that under this Section High Court cannot hear the disputed question of fact and law at all but the hearing of the disputed questions of fact and law can only be with regard to administration of the assets of the deceased. Directions whenever required are given to the executor of administrator in order to help them in the administration of the assets. The language used in the Section and its placement in the Act. clearly suggest lhal it has not been provided in the Statute Book for determination of the complicated questions of title alter hearing the parties on the questions of law and fact. Purpose appears to extend help in matters of administration only. The scope of Section 302 has been dealt with in many decisions of other High Courts and the view we are taking about the scope of Section 302 finds corroboration from the following cases :
In case : Provas Chandra Sinha v. Ashutosh Mukherjee reported in AIR 1930 Cal 258, Page J, observed as under at page 261 :
"Lastly, the plaintiff contended that the Court had jurisdiction to grant the relief sought in this proceeding under Section 302 Succession Act (39of 1925). I am unable to accept this contention. Section 302 is found in Chapter IV, Part IX of the Act under the heading-
"of the practice in granting and revoking probate and letters of administration and the Court in exercisingjurisdiclion under that Section is acting in pursuance of the testamentary and intestate jurisdiction with which it is vested under Clause 34 letters patent and not of its ordinary original civil jurisdiction which is the jurisdiction invoked by the plaintiff in the present proceedings. Further, I am inclined to think that the Court would not be competent, on an application under Section 302, to determine any disputed question of title, the jurisdiction of the Court under that Section being confined to the issue of direction to the executor or administrator relating to the management and administration of the estate."
10. A Division Bench of Patna High Court in case Nand Kishore Lal v. Pasupati Nath Sahu reported in AIR 1928 Patna 348 while discussing the scope of Section 302 observed as under :--
"The Court of probate is not in practice a Court of construction and should, generally speaking, construe testamentary documents only in so far as it is necessary to decide that testamentary documents should be admitted to probate or to see if any one and who. is entitled to administration..... Now, in this case probate has already been granted. It is true that the grant was limited in duration and that in the events that have happened its force is exhausted; but it is not shown that the estate has not been fully administered, except in this respect, that the residue which on the appellant's construction of the will ought to come to the Thakurbari mentioned in the will has not been handed over by the executor. Having regard to the length of time that has elapsed since probate was granted more than 14 years before the present application was made, it cannot, with any show of reason, be suggested that any of the debts due to the testator have not been realised or the debts due by the estate have not been paid. The executor then is functus officio and, if he is still in possession of the estate which ought to have been handed over to the legatee, he is in the position of a trustee in respect thereof..... and the proper remedy of the appellant is suit in the Civil Court for the construction of the will and the administration of the estate. On this ground, therefore, I think that the appeal ought to fail, and, in this view, it becomes unnecessary to construe the will."
11. Another Division Bench of Patna High Court in Sudhanshu Mohan Sarcar v. Hurish Chandra Dutta reported in AIR 1940 Patna 194. observed as under at page 195 :
"In some cases it has been doubted whether the High Court is competent on an application under this Section to determine any disputed question of title inasmuch as the jurisdiction of the Court under it is confined merely to issue of directions to theexecutor or administrator relating to the management and administration of the estate.....If this view is correct then present application cannot be entertained at all by this Court. But assuming that this Court is competent to decide even disputed questions of title, it would I think be exercising its discretion wisely if it refuses to give a direction in favour of a party who does not come before it with a clear title and where the title set up by him can be more appropriately decided in acivil suit. In my opinion, the petitioner has failed to make out even a prima facie case for an order under Section 302 and his application cannot, therefore, succeed in any event."
12. Lahore High Court incase Arya Prattnidhi Sabha v. Om Prakash reported in AIR 1934 Lahore 120 has observed as under at page 121 :
"I have no doubt that the power of giving directions for the summary disposal of certain disputes which could be the subject of a suit is vested in the High Court but the exercise of that power is discretionary. I do not think the matter before me is one which can be disposed of in this summary manner. It has been complicated by the compromise arrived at between the executor of the will and sons of the deceased. It is not possible without going into many questions of law and fact that will arise in this case to give any directions to the executor as to the legacy in favour of the petitioner. It seems to me that the proper remedy for the petitioner in the circumstances above described is to bring a suit if so advised."
13. P. B. Mukherjee, J. in case : In the Goods of. Akshoy K. Ghosh. reported in AIR 1949 Calcutta 462 while considering the scope of Section 302, in para 27 held as under :--
"In my opinion. Section 302 should not be read in such a way as to make this section in the Statute a substitute for a suit in any andevery case relating to the e'statc or its administration. The Legislature uses the word 'directions' which in my judgment should receive a construction consonant to the ordinary meaning of that word. The word 'directions' does not in my view mean adjudication and determination of substantive rights, but they mean in my judgment directions to help the executors in the difficulties in respect of practical managementor administration where no disputed question of title or difficult question of construction of will or complicated questions of law are involved....."
14. A learned single Judge of Madras High Court in case Ramamurthy v. President Attur Cooperative Society, Attur, reported in AIR 1955 Madras 417 after comparing Section 302 with Section 34 of the Trusts Act under which the High Court can give directions to the trustees in regard to the administration of the estate and directions contemplated under Order 55 Rule 3 of the Rules of the Supreme Court, 1883. by the Court of Chancery in England construed the scope of Section 302 in following words at page 418 :--
"To sum up the directions which can be given under this Section arc those relating to the administration of the estate, i.e., on questions which could be dealt with in an administration suit..... The only effect of this Section is to enable the High Court to give directions on a originating summons without a regular administration suit. No direction can be given by the Court on questions which could not arise in an administration suit such as for instance questions affecting rights of third persons claiming adversely to the will or those relating to claim in breach of trust."
15. In the above case the High Court refused to give directions claimed under Section 302 of the Act after considering the various judgments on the question.
16. From a perusal of the aforesaid judgments the legal position which emerges is that the complicated questions of title which are required to be determined on the basis of the construction of the will and appreciation of the questions of law and fact cannot be decided under Section 302 of the Act. The High Court under this section exercises summary jurisdiction of discretionary nature and disputed questions of title like vesting of property on the basis of the construction of the will cannot be appropriately done in such limited jurisdiction. We have already formulated questionsearlier which are required to be decided in this appeal on the basis of the arguments advanced by the learned counsel for the panics. There cannot be two opinions with regard to the claim of appellant for the entire properly of 'Kailash' on the basis of the intrcprctation of Clause 3(b) put forward on his behalf by his learned counsel. There is no doubt that such a complicated question of title and vesting of property cannot be decided in the present summary proceedings. From the findings recorded by the learned single Judge and on hearing of the learned counsel for parties, we do not find even a prima facie case for giving a direction of the nature contemplated under S. 302 of the Act.
17. With regard to the determination of the fair rent for Ihc property in occupation of respondent No. 2, his counsel Shri S. N. Verma staled before the learned single Judge as well as before us that his client wants to make it clear that he is not shirking and is not against payment of any increased rent with the passage of time which is fair and it is not the intention of his client that either his sisters or son of one of the sisters should not receive the fair rent and if any offer is made even today, his client is ready to settle il in the wider interest. On the basis of the aforesaid statement, we though at one stage felt inclined to determine the fair rent for this properly, however, when we examined the question closely, in our opinion, this question should also be left to be decided in asuit filed by parlies if so advised, for the following reasons :
(a) The question of determining fair rent and its payment in closely related to the claim of the appellant for settlement of the entire estate of Kailash. Thus determination of fair rent by us and payment in pursuance of the same by respondent No. 2 may affect the aforesaid claim of appellant.
(b) Probate to the will was granted on 7-12-1963 under which executors of the estate of late Lady Kailash Srivastava gave assent to her three daughters to the transfer of property on 1-1-1971, i.e. more than 25 years before and we can assume that since then the executors have not been looking after the administration of the properly and there is no purpose or occasion to give any direction to them with regard to the property with which executors have no concern.
(c) In para 8 of the supplementary affidavit filed by Prabhat Pandey as pairokar of respondent No. 2 it has been said that by gift deeds made in 1989 two-third of the shares in this property which had been bequeathed by lady Kailash in favour of her two daughters has been gifted by Sushila Dayal and Sarla Sahgal to Vikram Srivastava and Beer Srivastava, sons of H. K. Srivastava respondent No. 2. Thus, the inleresl of third parties has intervened which are not before us.
18. For the reason stated above, this appeal is dismissed. The petition of the appellant for the second relief, namely settlement of the entire estate of Kailash in his favour on his payment of Rs. 3,50,000/- shall stand dismissed as not maintainable. Remaining order of the learned single Judge which has not been challenged before us by either party shall remain unaltered. Parlies shall bear their own costs.
19. Appeal dismissed.