SHARATKUMAR DESAI Vs. KUSUMAKAR DESAI

JUDGEMENT

(1.) FOR the sake of convenience parties are referred to as per their ranking in the Court below.

(2.) THE deceased first respondent made an application under sections 270, 276 and 307 (2) (I) of the indian Succession Act for grant of probate and also for removal of the restrictions imposed in the Will for disposal of the properties mentioned in the Will, in particular the house property called 'badarikashrama' and the open space appurtenant to the said house.

(3.) THE material facts are as follows :-Late Sanjeev Rao Desai executed a Will in question bequeathing properties in favour of his children. The deceased 1st respondent is one of the sons and named as an executor in the Will. One Greeshma kumar the eldest son of the testator was also named as an executor in the Will. The said Greeshma Kumar gave up his right to act as a an executor. Therefore, the deceased 1st respondent was the sole executor. The 1st respondent wanted to sell a plot adjacent to 'badarikashrama' which is the subject matter of the Will. The appellant filed a suit in o. S. No. 342/1981 on the file of Munsiff, Gulbarga, seeking injunction against alienation on the ground that the said open space is reserved for extension of the house 'badarikashrama' and the said property is bequeathed in his favour in the Will. The suit was decreed in favour of the appellant. The first appellate Court reversed the decree. This Court in the second appeal in R. S. A. No. 278/1989 held that the suit for permanent injunction is not maintainable and the executor was advised to approach the competent Court under the Indian Succession Act seeking for necessary permission.