Sh. Baldev Raj vs Sh. Man Mohan & Others
2001 Latest Caselaw 777 Del

ORDER

Sanjay Kishan Kaul, J.

1. The appellants filed a suit claiming decree for partition, declaration and permanent injunction in respect of property mentioned in Annexure 'B' attached to the plaint. Along with the suit an application was filed by the appellants under order 39 Rules 1 and 2 read with Section 151 CPC to restrain the respondents from alienating, transferring, selling or parting with possession of House No.2575, Main Road, Raghubarpura No. 2, Gandhi Nagar, Delhi. After the pleadings were completed, learned Single Judge dismissed the application of the appellants by the impugned order dated 10th January, 2001. This order is under challenge in this appeal.

2. The appeal was posted for preliminary hearing on 19th January, 2001 on which date submission of the learned Senior counsel for the appellants was recorded that the alleged will dated 21st March, 1984 propounded by the Respondents had not been produced in original before the learned Single Judge and was not attested in accordance with law due to which the will ought not to have been considered by the learned Single Judge. It was also noticed that this ground has been taken in the Memorandum of Appeal and was stated to have been urged before the learned Single Judge but not dealt with by the learned Single Judge but not dealt with by the learned Single Judge in the impugned order. Since the impugned order did not reflect the aforementioned ground having been urged before the learned Single Judge by the appellants, it was recorded in the said order that it will be open to the appellants to seek a review/clarification of the impugned order in view of the submission of counsel for the appellants to that effect. The appeal was kept pending. It was further directed that status-quo will be maintained by the parties in respect of the suit property.

3. Today when the appeal was taken up for preliminary hearing, learned Senior counsel for the appellants stated that no application for review of the interim order has been filed. The learned Senior counsel for the appellants, however, contended that the allegation of the appellants in respect of the alleged Will dated 21st March, 1984 being a forged and fabricated document is recorded in the impugned order. A copy of the alleged Will is on record before the learned Single Judge. The original was also produced by the counsel for the respondent s for our perusal. The learned Senior counsel for the appellants submitted that the alleged Will is witnessed by only one witness and Mr. Iqbal Bahadur Mathur, Adv., only drafted the Will as is apparent from the endorsement. Learned senior counsel relied on the judgment in Smt. Punni vs. Sumer Chand and Ors. to contend that the signature of a person appearing on the Will only for certifying that he is scribe or identifier cannot be considered as a person signing in the capacity of an attesting witness. Reliance was also placed on the judgment of the Supreme Court in M.L. Abdul Jaffar vs. H. Venkata Sastri and sons for the same preposition.

4. The learned senior counsel for the appellants further contended that there was no reason for the father of the parties to disinherit any person by the alleged Will and there were thus suspicious circumstances in the execution of the Will. Relying on the judgment of the Supreme Court in Gurdial Kaur and Ors. vs. Gurdial kaur and Ors. . Learned senior counsel argued that the mere fact that the alleged Will was a registered Will cannot dispell the suspicion regarding the circumstances or prove the validity of the Will.

5. The learned senior counsel for the appellants further sought to advance the proposition that the suit being one for partition, an injunction must ensure for the benefit of the appellants so that the property is protected and no third party rights are created. Learned counsel relied on the case of Ratanlal Sahdev vs. Krishan Kumar 1993 Rajdhani Law Reporter (Note) 19 to advance his submission that the disposal of the property, in the absence of the interim injunction order is likely to complicate the matters. He further argued that since the alleged Will was in dispute, the appropriate forum to determine the validity of the Will was the Probate Court and not the present suit. The learned senior counsel relied on the judgment of the Supreme Court in D. Venkata Narayana and Ors. vs. Venkata Subbamma and Ors (Smt)(dead) .

6. We have heard and duly considered the submissions made by learned senior counsel for the appellants and have also gone through the pleadings, the documents on record before the learned Single Judge and the Memorandum of Appeal in the present case.

7. The mere fact that a suit for partition is filed cannot imply that an injunction must follow as a matter of course in respect of the suit property. In deciding an interim application under Order 39 Rules 1 & 2 read with Section 151 CPC, the three essential ingredients of existence of prima facie case, balance of convenience and irreparable loss and injury must be met before a plaintiff in the suit becomes entitled to an interim order. The learned Single Judge has, on the facts and circumstances of the case, not found such a case for grant of an interim order. There cannot be any hard and fast rule in this behalf and each case Will turn on its own facts for grant of injunction keeping in mind the principles of the grant of such an injunction order.

8. In so far as the submission of the learned senior counsel for the appellant in respect of the alleged Will is concerned, we are unable to agree with the submission that the validity of the Will cannot be decided in the suit filed by the plaintiff in which the defendant has set up the Will. The validity of Will can always be determined in a collateral proceeding. The present suit is one for partition and the respondents have in their defense prepounded the alleged Will. In determining whether the appellant is entitled to a decree for partition or not, the title of the respondents will depend on the alleged Will and thus the validity of the same can be adjudicated upon in the present proceedings. The Supreme Court in T. Venakata Narayana case(supra) was dealing with a suit for mere injunction and in that context observations were made which have no application to the fact of the present case.

9. It has to be further kept in mind that the alleged Will is a registered Will. This will not mean that the appellants cannot contest the same or bring to the notice of the trial court any circumstances which would show that the Will is not a valid one or executed in suspicious circumstances. The same is a matter of trial and the present suit has not reached such a stage. Thus the question whether the Will is properly attested or not will also have to be considered at the stage of trial of the suit when the validity of the Will will be examined.

10. The question as regards valid attestation of the Will was not urged before the learned Single Judge. However, for our perusal the original will was shown to us by learned counsel for the respondent. Below the signature of the executant against the space meant for signatures of the attesting witnesses against Sr. No.1 one of the attesting witnesses has put his signatures with his description. Similarly, against serial No.2 also there are signatures, which are of the Advocate, who has also described himself to be the scribe of the Will. It is not universal rule that a scribe cannot be treated as an attesting witness. Even in the decision of Himachal Pradesh High Court relied upon by learned counsel for the appellant it has been held that scribe may be an attesting witness of the Will, but it must be shown that the scribe put down his signature for the purposes of attesting the document. Only a prima Facia view has to be taken at this stage of the proceedings. The original will would show that the same Advocate also appeared before the sub Registrar at the time of registration of the Will in whose presence as per the endorsement of the Sub Registrar, the Will was read out and the executant acknowledged correctness thereof. The will is also duly registered. As such prima facie it cannot be inferred that there is any legal infirmity therein. However, it it a matter, which will have to be examined during the course of trial of the suit.

11. The claim of the appellants in the suit is based inter alia on the allegations that in a family partition, with his brother, late Ram Dayal got a property which is now in West Pakistan and thus the said property partakes the character of an ancestral property. Since the property in the suit is stated to have been acquired from the compensation claim, it is argued that the said property in the suit is also an ancestral property. Learned Single Judge has recorded that it has not been pleaded that the property now in West Pakistan was an inherited property by late Ram Dayal and his brother from their father and that it fell to the share of late Ram Dayal on a family partition of assests acquired from joint family nucleus. Thus the learned Single Judge rightly came to a prima facie conclusion that the property in suit stated to have been acquired with the aid of the compensation against the properties left in West Pakistan cannot, prima facie, be stated to partake character of ancestral property. The learned Single Judge has also noted the fact that the initial plaint prior to its amendment was not even based on the ground of the suit property being ancestral in the hands of Ram Dayal.

12. The learned Single Judge in our view thus rightly concluded that the necessary ingredients for the grant of an interim injunction order have not been made out by the appellant.

13. We find no infirmity in the impugned order. The appeal is dismissed. The parties are left to bear their own costs. The interim order granted on 19th January, 2001 stands vacated.