1993 (9) TMI 361 - HC - Indian Laws

Summary

Issues Involved:
1. Ad interim injunction.
2. Probate petition and validity of the will.
3. Maintainability of the injunction application in a probate matter.
4. Delay in filing the probate petition.
5. Verification of the probate petition.
6. Ownership and possession of the disputed property.
7. Balance of convenience and irreparable loss.

Detailed Analysis:

1. Ad Interim Injunction:
The petitioner sought an ad interim injunction under Section 151 of the Code of Civil Procedure to restrain respondent No.2 and any other person from carrying out construction or parting with possession over the plot bearing No. A-2/121, Safdarjang Development Residential Scheme, New Delhi, until the disposal of the probate petition.

2. Probate Petition and Validity of the Will:
The petitioner filed a probate petition No. 45/89 seeking probate of a registered will dated February 19, 1973, made by the deceased Smt. Dhan Kaur in favor of the petitioner. The petitioner claimed that the deceased bequeathed the said plot of land to him. Respondent No.2 contested the will, alleging it was forged and fabricated, and claimed to have sold her share of the property to Harmeet Singh Ghai.

3. Maintainability of the Injunction Application in a Probate Matter:
The objector argued that the probate court is not competent to grant an injunction. However, the court concluded that it has concurrent jurisdiction with the District Judge in probate matters, as per Sections 247, 266, and 300 of the Indian Succession Act, and can grant an injunction to preserve the disputed property. The court cited precedents supporting the probate court's power to issue temporary injunctions to prevent property dissipation.

4. Delay in Filing the Probate Petition:
The objector contended that the delay in filing the probate petition cast suspicion on the will. The court dismissed this argument, stating that delay is not fatal to the grant of probate, especially considering the petitioner's non-residency and the circumstances under which the will was traced. The court emphasized that the validity of the will would be adjudicated upon after full evidence is led.

5. Verification of the Probate Petition:
The objector argued that the petition was not verified by at least one of the two attesting witnesses as required under Section 281 of the Succession Act. The court held that this requirement is directory, not mandatory, and non-compliance is a curable irregularity. The petitioner explained that one attesting witness was untraceable, and the other was unwilling to verify the petition.

6. Ownership and Possession of the Disputed Property:
Respondent No.2 claimed to have sold her share of the property to Harmeet Singh Ghai. The objector asserted ownership based on an agreement to sell and a special power of attorney. The court noted that respondent No.2 could only sell her one-third share and not the entire property. The court refrained from adjudicating the validity of title at this stage but emphasized the need to preserve the property until the probate issue is resolved.

7. Balance of Convenience and Irreparable Loss:
The court found that the balance of convenience favored the petitioner, as allowing construction or transfer of possession could cause irreparable loss if the petitioner ultimately succeeded in obtaining probate. The court noted that the objector could not raise construction without municipal sanction, which had been revoked.

Conclusion:
The court granted the application for ad interim injunction, restraining the respondents, their servants, and agents, including the present objector, from raising any construction or parting with possession over any part of the disputed plot until the disposal of the probate petition.