- (1.) This application is at the instance of the plaintiff and is directed against the Order dated July 29, 2009 passed by the learned Additional District & Sessions Judge, 5 th Fast Track Court, Alipore in Misc. Appeal No.170 of 2006 thereby affirming the order dated March 23, 2006 passed by the learned Civil Judge (Junior Division), 1 st Court, Alipore in Title Suit No.91 of 2006.
(2.) The facts necessary for the purpose of disposal of this application are etymologized below:- i) One Swarna Prova Guha Neogy executed a Registered Deed of Gift on October 27, 1961 in favour of Renu Nandy @ Guha Neogy. The said Renu Nandy @ Guha Neogy constructed a two-storied building on more or less 1 cottah and 6 chittacks of land and one structure with brick wall and asbestos roof on 11 chittacks of land and remaining 1 cottah of land kept vacant. ii) The said Renu Nandy executed her last will on September 9, 1987 and the said will was registered. According to the will, the Eastern portion of the property in question was bequeathed to the mother of the petitioner and after the death of the mother of the petitioner, the petitioner became the owner of the same. Renu Nandy also bequeathed other parts of the building to three other sisters including the opposite party no.3. One cottah vacant land was to be used by the three sisters including the mother of the petitioner and the opposite party no.3. iii) In 1995, she was attacked with parkinson coupled with dementia and so, she could not sign her name properly. In 1996, she lost her capacity to sign her name. In order to withdraw the pension from the bank, one medical certificate was required to be produced in support of the withdrawal slip accordingly. iv) Smt. Renu Nandy @ Guha Neogy died on December 1, 1999. In 2000 onwards, the petitioner requested the defendant no.3 to obtain a probate of the will of the deceased Renu Nandy executed on September 9, 1987. Accordingly, the opposite party no.3 prepared an application for grant of probate and placed the same papers to the petitioner for consent. The petitioner, upon believe that the will dated September 9, 1987 was going to be probated, was asked to sign on papers. She signed on good faith. v) Ultimately, on July 27, 2005 she came to know that the opposite party no.3 obtained a probate in respect of a forged will dated March 6, 1997 and that a forged and manufactured deed of gift in her favour had been prepared on March 20, 1997. The property involved in the said forged deed of gift is the subject matter of the suit. vi) Thereafter, the petitioner filed a suit being No.91 of 2006 for declaration that the impugned deed of gift dated March 20, 1997 is forged, fabricated, manufactured and not binding upon the petitioner as well as the impugned deed of conveyance dated July 15, 2005 executed by opposite party no.3 in favour of the opposite party no.s 1 & 2 is void, illegal and inoperative. vii) The rectification of the impugned grant of probate is pending before the Court of the learned District delegate. viii) On March 23, 2006, the plaintiff preferred an application for injunction under Order 39 Rule 1 & 2 of the C.P.C. before the learned Civil Judge (Junior Division), 1 st Court, Alipore in the said Title Suit No.91 of 2006. Upon hearing the learned Trial Judge, inter alia, was pleased to refuse the prayer for ad interim injunction. ix) Being aggrieved, the petitioner preferred an appeal being Misc. Appeal No.170 of 2006 before the learned District Judge, Alipore and the said misc. appeal was dismissed by the impugned order. x) Being aggrieved, this application has been preferred.
(3.) Now, the question is whether the impugned order should be sustained.;