PRACHI PRAKASH PANDIT Vs. SOU PUSHPA SHARAD RANADE

JUDGEMENT

(1.) BOTH these Appeals challenge the order of the trial Court dated 9.9.2004. The appointment of a Court Receiver has been challenged in Appeal From Order No.854 of 2004. The refusal of injunction is impugned in Appeal From Order No.903 of 2004. Appellants in Appeal From Order No.854 of 2004 are Respondent Nos.1 to 3 in Appeal From Order No.903 of 2004. Respondent No.1 in Appeal From Order No.854 of 2004 is the Appellant in Appeal From Order No.903 of 2004. Respondent Nos.2 and 3 in Appeal From Order No.854 of 2004 are Respondent Nos.4 and 5 in Appeal From Order No.903 of 2004. For the sake of convenience the parties will be referred to as arrayed in Appeal From Order No.854 of 2004.

(2.) ONE Anant Vishwanath Pilankar expired on 18.12.1988 leaving behind his sisters Neena Vasant Tarkar, Appellant No.2 in Appeal From Order No.854 of 2004 and Respondent No.2 in Appeal From Order No.903 of 2004 and Pushpa Sharad Ranade, Respondent No.1 in Appeal From Order No.854 of 2004 and Appellant in Appeal From Order No.903 of 2004. It appears that Anant expired leaving behind two wills dated 19.3.1984 and 24.7.1987 and a third will dated 17.1.2001. The Appellants in Appeal From Order No.854 of 2004 who are the executors of the will of the deceased dated 17.1.2001 have filed probate proceedings before the trial Court in which the impugned order came to be passed. Appellant No.3 is the son in law of Appellant No.2 Neena and the husband of Respondent No.3. Respondent Nos.2 and 3 are the children of Neena. Citations and notices have been issued. Respondent No.1 has filed her say to the probate application and has opposed the application. Respondent Nos.2 and 3 have no objection to the probate being granted in favour of the appellants. Respondent No.1 has also filed application at Ex.29 for an injunction and appointment of a Court Receiver in respect of the estate of Anant.

(3.) THE trial Court has accepted the submissions made by Respondent No.1 and has appointed a Receiver while refusing the prayer for an injunction. According to the trial Court, the will of Anant dated 17.1.2001 was not genuine, prima facie and therefore, no probate could be granted. In these circumstances, the trial Court was of the view that since both Neena and Pushpa, Appellant No.2 and Respondent No.1, respectively, would have equal shares in the property of their brother as it would be deemed that he had died intestate. Significantly, all the wills of Anant contain bequests to Neena and her children only. Pushpa has been excluded completely from the will. The trial Court while deciding the application has come to the conclusion that the last will being imperfect and inoperative by implication of law it would mean that Anant had died intestate. Furthermore, it has been observed that in the instant case there may not be any emergent damage or loss demanding immediate action nor was there any element of danger to the property. However, the trial Court has held it would be unreasonable to expect that in every case all the requirements contemplated for appointing a Court Receiver have to be examined or must exist. The trial Court also observed that although several grounds for appointing the Receiver had been made out in the application none of these grounds were pressed by the advocate for Respondent No.1 at the hearing of the application. Despite these findings and observations, the trial Court has thought it fit to appoint a Court Receiver while refusing injunction.