Delhi High Court
Anita Shah & Anr. vs Anil Gami & Ors. on 29 July, 2016
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: July 29, 2016
+ FAO 350/2016
ANITA SHAH & ANR .....Appellants
Through: Mr. Anuj Jain, Advocate
versus
ANIL GAMI & ORS .....Respondents
Through: Mr. Pravir K. Jain, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
ORAL
CAVEAT 649/2016
Mr.Pravir K. Jain, Advocate, appears on behalf of the caveator.
The caveat stands discharged.
C.M.No.26979/2016 (Exemption)
Allowed subject to all just exceptions.
C.M.No.26981/2016 (Delay)
There is delay of 23 days in re-filing of the accompanying appeal.
For the reasons stated in the application, it is allowed and the delay is
condoned. The application stands disposed of.
FAO 350/2016 Page 1
FAO 350/2016 & C.M.No.26980/2016 (Stay)
In a suit for injunction filed by respondents-plaintiffs to restrain the
appellant-defendant, from alienating the moveable assets till conclusion
of pending probate proceedings, an application under Order 7 Rule 11 of
the CPC was filed by the appellant-defendant, which was allowed by the
trial court vide order of 23rd February, 2016. Appellate Court vide
impugned order of 19th May, 2016 has set aside the trial court's order and
directed that the plaint could not be rejected by resort to Order 7 Rule 11
of CPC while holding that once the Will has been challenged, then the
executor/beneficiary is entitled to the benefits only after obtaining the
probate. However, impugned order does not direct the parties to maintain
status quo in respect of movables which are the subject matter of the Will
under challenge in the pending probate proceedings.
The challenge to the impugned order in this appeal is on the ground
that as per both the Wills i.e. of 2004 and 2012, the movables fall in the
share of appellant and without seeking any declaration qua the Will of
2012, simpliciter suit for injunction is not maintainable and, so
respondents' injunction suit has been rightly dismissed by the trial court.
It is pointed out by learned counsel for appellant that even the Will of
2004 relied upon by the respondents-plaintiffs provide that the movables,
except a sum of `2.5 lac are to go to the appellant. Thus, it is submitted
that the impugned order deserves to be set aside and trial court order
ought to be restored.
On behalf of the respondent No.1-plaintiff, it is submitted that due
to filing of the probate proceedings in the year 2015 and the suit for
FAO 350/2016 Page 2
possession in respect of the immovable property, which is the subject
matter of the Will of 2012, there was no requirement of seeking any
declaration and, so on this ground, respondents-plaintiffs' suit was
erroneously held to be not maintainable as Will of 2012 is subject matter
of probate proceedings as well as the suit for possession filed by the
appellant, and so in such a situation, interest of justice demands that suit
for injunction ought to proceed and status quo in respect of the movables
deserves to be maintained till the outcome of the probate proceedings or
the suit for possession.
The submissions advanced by both the sides have been considered
and the impugned order as well as trial court's order and the material on
record have been perused and thereafter, it becomes evident that when
this suit for injunction was filed by the respondents-plaintiffs in the year
2013, a declaration qua Will of the year 2012 being void, ought to have
been sought but with the change in the fact situation i.e. filing of the
probate case and the suit for possession by the appellant, the suit for
injunction filed by the respondents is indeed now maintainable. However,
Appellate Court in the impugned order has gravely erred in setting aside
the trial court's order allowing the application under Order 7 Rule 11
CPC as during the course of hearing, it was not disputed by learned
counsel for respondent that movables except `2.5 lac as per both Wills
has to go to appellant so continuance of suit for injunction (which relates
to movables only) is otherwise impermissible. If the Will of the year 2004
is not set up by the respondent-plaintiff, still as per the Will of 2012
movables except `2.5 lac goes to appellant and therefore, the suit for
injunction qua the movable properties, which is also subject matter of the
FAO 350/2016 Page 3
Will of the year 2012, does not deserve to continue during the currency of
probate proceedings qua the movables.
In light of the aforesaid, this Court finds the impugned order is
unsustainable and is accordingly set aside and trial court order is restored.
(SUNIL GAUR)
JUDGE
JULY 29, 2016
r
FAO 350/2016 Page 4
