KALPANA SAMANTA Vs. RABINDRA NATH SAMANTA

JUDGEMENT

(1.) This interlocutory application has been filed under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure for restraining the respondent from alienating the suit property in any manner during the pendency of this miscellaneous appeal.

(2.) Mr. V.P. Singh, learned senior counsel appearing for the appellants petitioners submitted as follows. That after the partition suit was filed by the petitioners, their brother-respondent filed Probate Case No. 3 of 1990 for grant of probate with respect to the purported Will dated 26.2.1965 executed by the father of the parties, who died on 28.12.1976. Another probate case being Probate Case No. 2 of 1990 was filed for probating the purported will dated 26.12.1988 executed by the mother of the parties. That the said cases were filed only with a view to frustrate the right, title and interest of the appellants. That the said wills are forged and fabricated and they have been obtained by practicing fraud. That the prayer for probating the will was time barred. That even the joint family properties, in which petitioners also have share, are the subject matter of the wills. That after filing this appeal, the respondent has sold one of the suit properties and has executed power of attorney for sale of other properties. That there are strong chances of success of the appellants in this appeal. That if third party's rights are created, it will create unnecessary complications and it would be very difficult for the appellants, both being ladies, to indulge in litigations. He relied on Krishan Kumar Sharma v. Rajesh Kumar Sharma, 2009 11 SCC 537.

(3.) On the other hand, Mr. P.K. Prasad, learned senior counsel appearing for the respondent, submitted as follows. The wills in question could also be granted for joint family properties which will naturally be relatable only to the extent of share of executor. That neither the petitioners have alleged nor the respondent intends to alienate the residential house in any manner. That the probate cases were not time barred. That the properties vested in the respondent on the death of the executors of the wills. That probate cases were filed only when cause of action arose. That as the respondent has got the judgment under appeal in his favour and, therefore, he should be allowed to enjoy the properties covered under the will, during the pendency of this appeal. That any transaction made by the respondent with regard to the suit properties will naturally be governed by the principles of lis pendens. That this injunction petition was filed on 14.12.2007 and, therefore, there is no occasion for grant of injunction at this belated stage. He relied on Mandali Ranganna and Ors. v. T. Ramachandra and Ors., 2008 11 SCC 1, Kanhaiyaji Sahay and Ors. v. Kamla Prasad and Anr.,1990 1 PLIR 661 and Bali Ram Dhote v. Bhupendra Nath Banerjee and Ors., 1978 AIR(Cal) 559.