PREM BHAGWANDAS HARJANI Vs. NARAINDAS VENSIMAL HARJANI

JUDGEMENT

(1.) This Notice of Motion has been taken out for the appointment of Court Receiver and the usual injunctions as also for directing the defendants to deposit the amounts collected and received by them in respect of the suit property with interest @ 18% p.a. thereon in a suit for declaration challenging the sale and transfer of the suit property by defendant No.1 to defendant Nos.2 & 3 as invalid and for the consequential relief of injunction in respect of its alienation, further sale and creation of third party rights.

(2.) The suit property is the subject matter of a Testamentary Petition being the estate of one Vensimal Kalachand Harjani under whose will defendant No.1 purported to sell the suit property. The petition for probate is stated to have been filed by defendant No.1, 42 years after his death. The plaintiff sought the relief of injunction against further alienation in the testamentary suit. The relief came to be refused under the order dated 05.01.2011 of this Court in its T & I jurisdiction upon the ground that the property was sold in the year 2010. The plaintiff thereafter filed this suit for the grant of the injunction upon the same facts on 14.08.2013. The plaintiff applied for what was called "urgent ad interim reliefs" on 23.10.2013 in the aforesaid Notice of Motion taken out on 17.10.2013.

(3.) This Court by its order dated 23.10.2013 refused ad interim relief. The Court recorded that the same reliefs were sought from the Testamentary Court and which were rejected on the ground that the property had been sold in the year 2010 and that the Notice of Motion was not maintainable before the Testamentary Court. This Court further recorded that except for stating that the plaintiff is a 66 years old lady and was unwell, no reason as to why this Court was not approached in the last more than 2 1/2 years is given. The Court, therefore, held that the plaintiff was not entitled to any urgent ad interim relief without giving an opportunity to the defendants to file their affidavitinreply. The defendants were directed to file their affidavitinreply. The Notice of Motion was adjourned.