IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.469 of 2010 Saroj Devi, Wife of Sri Braj Kishore Mishra and Daughter of Late Bhagwat Nath Tiwary, Resident of village – Tarwalia, P.O. Tarwalia, P.S. Semra/Bagha, District – West Champaran. ………… Applicant – Appellant. Versus Smt. Shanti Devi, wife of Sri Agastya Mishra, Daughter of Late Kamalnath Tiwary, Resident of village – Mangurahan, P.O. Mangurahan, P.S. Govindganj, District – East Champaran At present resident of B-201 Hari Radha Apartment Sardar Patel Path, North Sri Krishna Puri, Boring Road, Patna – 13. ………… Opp. Party – Respondent. ----------- 03/ 03.08.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the order dated 23.04.2010 passed by the learned 2nd Additional District Judge, Bagha, West Champaran in Probate Case No. 34 of 2004 by which the petition filed by the appellant under Order XXXIX Rule 1 and 151 of the Code of Civil Procedure has been rejected. Learned counsel for the appellant, however, contended that the appellant filed a Probate Case for probate of a will. The respondent, who claimed herself to be the sister of the appellant, appeared to contest the probate case and since she raised objection, probate case was converted into contested suit. It has been contended that in the said suit for grant of - 2 - injunction, a petition was filed under Order XXXIX Rule 1 of the Code of Civil Procedure by the appellant praying inter alia to restrain the respondent sister to sell the land concerning with the will executed in favour of the respondent which is pending for to be probate and she has challenged the will in the said probate case and contested the probate case. The petition filed under Order XXXIX Rule 5 stating that the respondent - opposite party Smt. Shanti Devi is negotiating for alienating the suit property to the appellant and it will give rise to multiplicity of the litigation. However, the probate case was converted into a contested suit and the petition for injunction was rejected on the ground that the appellant did not come with clear hands and she had mere apprehension in her minds and that no irreparable loss was to be caused to her. However, the learned lower court held that nothing has been filed to show that Saroj Devi had sold any land nor there is any statement about with whom she was negotiating and further held that the appellant was not able to prove that the opposite party was selling the land to some one and hence rejected the petition. - 3 - However, it is pertinent to mention that in a suit for probate the court has a limited issue to decide whether the will is genuine or not. The court does not have the jurisdiction to decide the right of the parties and therefore, the injunction petition in such case is not maintainable. In view of the above discussion, this Court comes to a conclusion that the learned court below was justified in rejecting the petition of the appellant for injunction. This miscellaneous appeal has no merit and it is, accordingly, dismissed. Kundan (Gopal Prasad, J.)