RAM KUMAR Vs. SHANKER LAL

JUDGEMENT

(1.) By this appeal, the appellant has challenged the order of the Trial Court dated 30-8-2001 by which the learned Trial Court dismissed injunction application of the plaintiff-appellant.

(2.) Brief fact of the case are that the plaintiff filed the suit for partition with respect to the property of one Shri Badridas. How it alleged to have come to the share of the plaintiff is having a chequered history as per the facts of the case. It is stated that Baridas Daga was having immovable properties mentioned in Schedule -'Ka' annexed to the plaint. Badridas Daga executed a Will on 16-9-1962. After death of Badridas, Badridas's wife Smt. Chanda Bai, Badridas's brother Ramnath Daga, Ramnath's son Shankerlal presented an application for grant of probate before this Court, upon which the High Court granted probate by order dated 29-10-1968. As per the probate, Smt. Chanda Bai, Ramnath Daga and Shankerlal were appinted as executors as per the provisions of the Will. It was also provided in para No. 4 of the Will that Smt. Chanda Bai will be the owner of the immovable properties situated in the city of Bikaner and the properties mentioned in Schedule-'Ka' are the properties situated in Bikaner. Therefore, Smt. Chanda Bai became owner of the above property after the death of Badridas. Smt. Chanda Bai expired on 6-1-1993 at Mumbai.

(3.) It is alleged by the plaintiff that since Badridas Daga and Smt. Chanda Bai had no issue, therefore, the property was to go in the hands of close relations of Badirdas Daga, who was none else than Ramnath Daga, one of the executors of the Will and since Ramnath Daga expired before Smt. Chanda Bai on 26-1-1973, therefore, after the death of Smt. Chanda Bai on 6-1-1993, the property which was originally belonging to Badridas Daga got by Smt. Chanda Bai by virtue of Will dated 16-9-1962, came in the hands of successors of Ramnath Daga. According to the plaintiff, the plaintiff and the defendants No. 1 to 3 are the sons of Ramnath Daga. In these circumstances, the plaintiff is claiming l/4th share in the entire property mentioned in Schedule-'ka' and the defendants No. 1 to 3 are having 1/4th share each according to the plaintiff, the property was never partitioned and the defendant non-petitioners No. 1 to 3 are not agreeing for partition and the executors did not acted bonafidely. They have not passed on the benefits to the beneficiaries and, in the above circumstances, the plaintiff requested defendant Nos. 1 to 3 to partition the property but the defendants did not take any interest. Instead of agreeing for partition, the non-applicant No. 1(respondent No.1) through his son defendant No. 1 published an advertisement on 28-7-2000 for sale of the Bikaner Glass Factory, one of the properties in dispute, therefore, the plaintiff filed the suit for partition and also sub-mitted an application for injunction that during the pendency of the suit, the respondents be restrained from alienating the property mentioned in Schedule-'Ka'.