RUPINDER SINGH ANAND Vs. GAJINDER PAL KAUR

JUDGEMENT

(1.) This order shall also govern the disposal of M.A. No. 3197/09 as in both the appeals, parties are one and same and both the appeals are arising out of Civil Suit No. 2-A/08. In M.A. No. 3195/09 the appeal is filed against the order dated 7-10-2009 passed by District Judge, Indore whereby the application filed by the appellant under Order XXXIX, Rules 1 and 2, Civil Procedure Code was dismissed in part. In M.A. No. 3195/09 cross-objections have also been filed by the respondent No. 1. In M.A. No. 3197/09 the appeal is against the order dated 14-10-2009 whereby LA. Nos. 5/08 and 29/09 filed by the appellant for restraining the respondent Nos. 1 to 3 from appropriating/alienating the immovable property was dismissed.

(2.) Short facts of the case are the respondent No. 1 is mother of the appellant. Respondent No. 2 is the widow of deceased Jaspreet Singh Anand who happens to be brother of the appellant. Respondent No. 3 is adopted son of respondent No. 2 while respondent No. 4 is sister of the appellant. Respondent Nos. 7 to 9 are wife and children of the appellant while respondent Nos. 10 to 12 are children of respondent No. 4 Jagjitsingh who was father of appellant and husband of respondent No. 1 and had died on 23-4-2008. After his death a suit for partition was filed by the appellant against the respondents on 28-8-2008 wherein it was alleged that deceased Jagjitsingh was resident of H.N. 630/2, New Palasia Indore and was owner of many immovable properties besides other properties in the nature of vehicles, cash in deposits in bank, gold, jewellery and bonds etc., details of which were mentioned in para-13 of the plaint. It was further alleged that deceased Jagjitsingh Anand has not made any Will and died interstate and, therefore his estate would devolve on his wife, respondent No. 1, appellant his sister-respondent No. 4 and his late brother's widow Manmeetsingh-respondent No. 2 and her adopted son-respondent No. 3. It was alleged that on the demise of his father, appellant asked for a partition from the respondent Nos. 1 and 2 of the assets left behind by the deceased as on date of his death claiming his one-fourth. It was alleged that deceased Jagjitsingh has left behind the property i.e. cash, fixed deposits, share and bonds approximately Rs. 20 Crores. It was alleged that since the appellant is having one-fourth share in the property left by Jagjitsingh which includes immovable and movable, therefore it was prayed that suit be decreed and after partition, one-fourth share be given to the appellant. Apart form other pleadings it was also alleged by the appellant in the plaint that there is a Will alleged to have been executed by Jagjitsingh on 28-6-2003 and a Codicil dated 4-1-2008 and validity of these Will and Codicil were challenged by the appellant. Along with the suit an application was field by the appellant under Order XXXIX, Rules 1 and 2, Civil Procedure Code wherein it was alleged that the respondent Nos. 1 and 2 have started negotiation with the brokers for the properties situated at Mumbai. It was alleged that appellant is having prima facie case and balance of convenience is in his favour. It was prayed that respondent Nos. 1 and 2 be restrained from alienating any part of the estate of the deceased, failing which the appellant would suffer substantial and irreparable injury and would be compelled to litigate with third parties. In the application it was prayed that respondent Nos. 1 to 3 be restrained by issuing temporary injunction from alienating or creating third party rights.

(3.) The suit and the application filed by the appellant was contested by respondent Nos. 1 to 4 by filing separate written statement. In the written statement filed by the respondent Nos. 1 to 4 it was not disputed that various properties were left behind by the deceased Jagjitsingh but it was alleged that all the properties were self earned properties and in his lifetime Jagjitsingh had made arrangement vide registered Will dated 28-6-2003 and registered Codicil dated 4-1-2008, according to Will property devolves to the respective legatees which includes the appellant and other members of his family. It is also submitted in the written statement that appellant separated himself from his father Jagjitsingh in his lifetime vide agreement dated 1-6-1991. It was alleged that in the agreement itself it was mentioned that appellant shall have no title or interest in the property left with Jagjitsingh. It is submitted that appellant has not come with clean hands and appellant has not at all mentioned this fact in the plaint or application. It was also stated that in the list of properties the properties which belong to respondent Nos. 1 and 2 personally has also been included mala fide. It is submitted that suit and the application filed by the appellant be dismissed.