spb/- 1 nms2244-06.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2244 OF 2006 IN SUIT NO. 1570 OF 2006 Smt. Sabita Vaishwanath Adapa ... Plaintiff. V/s. Mr. Ashok Thimmaya Shetty & Ors. ... Defendants. . ----- Mr. P.K. Shetty for the Plaintiff. Mr. Gajanan Shinde i/by M.P. Vashi for the Defendants. ----- CORAM : D. G. KARNIK, J. DATE : 05th JULY, 2011. P.C. : 1 Request for adjournment made by the counsel for the defendants is refused. Learned counsel for the defendants thereafter reports no instructions. 2 Plaintiff is the daughter and the defendant No.1 is the son of late K. Yamunabai Thimayya Shetty who died on 12th August, 2004. The plaintiff has filed the suit for administration of estate of late Smt. K.Yamunabai Shetty. 3 By this Motion, the plaintiff has prayed for injunction, restraining spb/- 2 nms2244-06.sxw the defendants from selling, transferring or alienating the property of the deceased. Counsel for the plaintiff does not press any relief in respect of the property mentioned in paragraph 2(b) and 2(c) in the plaint. It is the case of the plaintiff that the property mentioned in the plaint in paragraph 2(a) and 2(d) belonged to Smt. Yamunabai and on her death the plaintiff has inherited 25% share therein. Defendant no. 1 on the other hand claims that late Smt. Yamunabai has left behind her last Will dated 24th November, 1998 and he has filed proceedings for probate of the Will which is numbered as Suit No. 28/2007. The defendant no.1 claims that he has become absolute owner of the suit property under the Will of late Smt. Yamunabai. 4 Under section 213 of the Indian Succession Act, no right as an executor or a legatee can be established in any court of law unless a court of competent jurisdiction has granted probate of the Will under which the right is claimed. Since the petition for probate of the alleged Will of the deceased Yamunabai is pending and grant of probate of the Will is contested by the present plaintiff, it cannot be said that the defendant has established that he is the absolute owner of the suit property. Consequently, the plaintiff would be entitled to an injunction, restraining the defendants from selling, transferring or alienating the suit spb/- 3 nms2244-06.sxw property to the extent of the plaintiff’s share which according to her is 1/4th . At this stage it may be mentioned that the plaintiff does not press prayer for appointment of a Receiver. Hence, I pass the following order : ORDER i Defendant No. 1 is hereby restrained from selling, transferring or alienating the Plaintiff’s share , which according to her is 1/4th in the property described in paragraphs 2(a) and 2(d) of the plaint. The plaintiff shall also not part with exclusive possession of the properties mentioned in paragraphs 2(a) and 2(d) of the plaint. [D.G. KARNIK, J.] .....