IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.94 of 2009 Bharat Prasad, son of Late Dindayal Prasad @ Langatu Mahato, resident of Mohalla-Company Bagh, Ratanpura, P.O.-Bhagwan Bazar, P.S.-Bhagwan Bazar, District- Saran. …………………………………………. Plaintiff/Appellant Versus 1. Smt. Sushila Devi, wife of Chandrika Pandey. 2. Chandrika Pandey, son of Mahabir Pandey, resident of Village-Chand Barawan, P.O.-Chand Barawan, P.S.- Mashrak, District-Saran. 3. Smt. Manju Devi, daughter of Raja Ram Singh and wife of Hari Shankar Prasad Singh, resident of village- Senduar, P.O.-Rampur, Binda Lal, P.S.-Ekma, District- Saran. At present resident of Mohalla-Ratanpura, Thana Road Bhagwan Bazar, P.O. & P.S.-Bhagwan Bazar, District-Saran. 4. Gautam Prasad, son of Late Sudama Prasad, resident of Mohalla-Ratanpura, Thana Road, Bhagwan Bazar, P.O. & P.S.-Bhagwan Bazar, District-Saran. 5. Hari Shankar Prasad Singh, son of Late Ram Chandra Singh, resident of Village-Senduar, P.O.-Rampur, Binda Lal P.S.-Ekma, at present resident of Mohalla- Ratanpura Thana Road, Bhagwan Bazar, P.O. and P.S.- Bhagwan Bazar, District-Saran. …………………………………………… Defendants/Respondents ----------- 4. 5.5.2009 Heard Mr. Shashi Shekhar Dwivedi, learned Senior counsel for the appellant and Mr. Shree Nandan Prasad Singh for the contesting respondents. It is quite elementary that the trial court while passing an order on an injunction petition must take into account all the documents which are brought by the parties on record in course of consideration of a prayer for injunction. From the impugned order, which is a reasoned order, it would transpire that the court below was 2 aware that the plaintiff-appellant had based his case on a deed of gift dated 23.7.1996. The said document in fact is the basis of the suit and yet its effect has not been taken into account by the court below in the impugned order. The said document, Annexure 1 to this appeal, would itself go to show that an earlier Will dated 17.8.1987 had already been cancelled by a registered document dated 20.4.1995 and therefore, even if the court below was impressed on the content of the Will dated 17.8.1987 it was duty bound to also consider the effect of subsequent registered deed of gift dated 23.7.1996 which came into existence upon cancellation of the aforesaid will dated 17.8.1987 and that too by a registered document dated 20.4.1995. The court below unfortunately has given undue and uncalled for importance to the unprobated Will dated 17.8.1987 and in process has ignored most important document, the registered deed of gift dated 23.7.1996. It could have been a different story had the court below considered the registered deed of gift in favour of the plaintiff- 3 appellant and yet could have come to a finding of there being no prima facie case, balance of convenience and/or irreparable loss. That however has not been done. Mr. Shree Nandan Prasad Singh, learned Counsel for the defendant-respondent while supporting the impugned order rejecting the prayer of injunction however, would submit that the Will had an executor and though the executor had already come in possession and therefore, if on the basis of un-probated Will the executor had remained in possession he had acquired a right to remain in possession or to alienate the property. In this context he also refers to a Division Bench judgment of this Court in the case of Dr. Harish Chandra Prasad vs. Jagarnath Prasad & ors., reported in AIR 1985 Patna 283. The aforesaid submissions of Mr. Singh cannot be accepted for more than one reason including there being no legal value of an un-probated will dated 17.8.1997 which had stood cancelled by a registered deed dated 20.4.1995. In this regard even the reliance placed on the judgment of this Court in the case of Dr. Harish Chandra 4 Prasad (supra) if wholly misplaced inasmuch as from the discussions made therein it would be found that the will in that case had already been probated and the importance and value of such a probated will along with the right of the executor had been discussed and upheld. One fails to understand how the ratio of the aforementioned judgment will be applicable to the facts of the present case, where the Will of the year 19897 even after the death of the testator in 1997 had not been made subject matter of any probate case. That being so, even otherwise this Court would find that there was sufficient force in the case of the plaintiff appellant for his being granting injunction. As this Court has noted the cases of the rival parties and when it finds a strong prima facie case, balance of convenience and irreparable injury in favour of the plaintiff appellant this Court would set aside the impugned order and direct the parties to maintain status quo ante in respect of the suit property as was existing on 12.3.2008, the day on which this Court 5 had initially granted adinterim injunction in this appeal. Both the parties are, however, restrained from changing physical feature of the suit property and/or selling or otherwise transferring the suit property till the final disposal of the suit. With the aforesaid observations and directions, this appeal, to the extent indicated above, is allowed. (Mihir Kumar Jha,J.) Surendra/