IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.196 of 2007 URMILA DEVI & ORS Versus SUDHIR KUMAR SINGH ----------- 7/ 26.09.2008 This Misc. Appeal has been directed against the order dated 07.03.2007 passed by Vth Additional District Judge, Patna, in Misc. Revocation Case No. 1 of 2005, whereby and whereunder, the petition filed under Order 39 Rule 1 & 2 read with Section 151 of the C.P.C. filed on behalf of Urmila Devi and others who are also appellants here has been rejected. Heard learned counsel for both the sides. It was prayed on behalf of the appellants who are petitioners in the court below, to pass an order restraining the opposite party Sudhir Kumar Singh from alienating the suit property or any part thereof till final disposal of the suit and also to maintain status quo with respect to the properties in question. Misc.Revocation case for setting aside the probate decree passed in Probate Case No. 105 of 2004 on 5.3.2005 in favour of opposite party Sudhir Kumar Singh who is respondent here, was filed on the plea that the probate of the will executed by one Late Savitri Devi was obtained by committing fraud upon the petitioners as also on the court, some fake lady was introduced by impersonating herself as sister of the deceased Late Savitri Devi. Petitioners-appellants have been claiming as nearest legal heirs of the deceased Late Savitri Devi. Urmila Devi is the husband’s brother’s wife (gotani) of the Savtiri Devi and petitioner Sheela Kumari Singh is daughter of the Urmila - 2 - Devi. On the other hand, they have challenged that Sudhir Kumar Singh happens to be a stranger to the defendant. It has been submitted that simple prayer of the appellant for the present is that the property which is under challenge in will, should be preserved so as to safeguard the future interest of the appellant in case they ultimately succeed in getting the order of probate revoked. Learned counsel for the respondent has submitted that no injunction order could be passed unless there is some suit for title and consequential relief is sought for. So, the petition of injunction, restraining a party to the suit property as provided under Order 39 Rule 1 & 2 of the C.P.C. is not at all maintainable in this revocation of probate matter. In view of the fact that a separate procedure for such revocation and challenging grant of probate is provided in the Indian Succession Act itself. Besides submission of the respondent is that a title suit in the year 2004 was also filed by the appellants in which they have prayed for grant of injunction which was refused. Moreover, appellants have not challenged any other property of Late Savitri Devi besides the property in will. On the other hand, it has been submitted on behalf of the appellant that their simple prayer is to preserve the property of will, so that in case they ultimately succeed in their purpose by filing of petition for revocation of will, created on the basis of forged and fabricated document, should not be frustrated. Having heard the learned counsel of both sides at length and - 3 - gone through the impugned order and on consideration of fact and circumstance it is admitted position that an order of probate was passed ex parte which was under challenge. The balance of convenience thus, tilts in favour of the appellant for the reason that their ultimate goal should not be frustrated in case they succeed in final stage of the proceeding, for the revocation of will matter is pending. In case the properties kept intact and unalienated the respondent will not suffer any loss rather the irreparable loss likely to be sustained by the appellants in case prayer of the appellant is refused and they succeed in the revocation matter, they can not be compensated on any count because of creation of deeds in respect of transfer of the will property and thereby multiplicity of interested parties. In the facts and circumstances, the order impugned cannot be said to be sustainable on facts, law and equity. So, it requires interference. In the result, the impugned order is hereby set aside and the court below is directed to dispose of the matter preferably within six months from the date of receipt/communication of this order and the court below should avoid all unnecessary adjournments. With the aforesaid directions and observations, this Misc. Appeal is allowed. Sanjeet (Subash Chandra Jha, J.)