- (1.) Joginder Pal alias Joginder Nath filed suit for mandatory injunction against Punjab and Sind Bank, Police Lines Road, Gurdaspur and District Red cross Society (in short the Society), Gurdaspur, defendants 1 and 2 respectively, directing them to disclose the locker number lying with defendant No. 1 in which the property of Ms. Raj Mohini including ornaments has been deposited after her death that took place on 27-4-88 and further directing defendant No. 2 to hand over the keys of said locker number and direct defendant No. 1 to allot the plaintiff to operate that locker. It is alleged in the plaintiff that the plaintiff is the real maternal uncle's son of Ms. Raj Mohini who executed will dated 12-6-87 in his favour which is a genuine and valid will. She died on 27-4-88 leaving behind this will as her last will and testament. He has become owner of all moveable and immovable property of Ms. Raj Mohini on the strength of that will. District Red Cross Society, Gurdaspur illegally, without any authority took hold of the entire property of Ms. Raj Mohini including her moveable assets and misappropriated them. Plaintiff filed civil suit No. 23 of 1992 directing the society to disclose all moveable and immovable property but the society replied in that case that the society had not taken hold of any property of Ms. Raj Mohini nor the society was in possession of moveable or immovable property of Ms. Raj Mohini. In the said case, Om Parkash Executive Secretary of the Society appeared on 8-10-92 and stated that they had seized the property of Ms. Raj Mohini which was lying in their custody. He had also stated that some ornaments of Ms. Raj Mohini were also deposited in Punjab and Sind Bank in locker No. 212 which was opened in the name of the society. He disclosed the contends of the locker also. It was submitted that Ms. Raj Mohini revoked will dated 2-4-85 which had been executed in favour of the society and the genuine and valid will had been executed on 12-6-87 in his favour. During her lifetime Raj Mohini moved an application before the Deputy Commissioner, Gurdaspur requesting for the withdrawal of will dated 2-4-85 and Shri D.S. Kalha, Deputy Commissioner, Gurdaspur vide order dated 10-2-88 permitted her to withdraw the will. It was further submitted that the society filed false and frivolous succession case No. 10 of 1989 with a view to obtaining succession certificate relating to the property of Ms. Raj Mohini. In that case issues were framed and validity of will dated 2-4-85 and 12-6-87 was considered by Shri S. C. Arora, Sub-Judge First Class, Gurdaspur. Shri Kartar Singh who was produced by the society as witness had admitted that will dated 2-4-85 had been revoked by Raj Mohini and further admitted that when an application for withdrawal of will was moved by Raj Mohini, she was identified by A. S. Diwana, Advocate. It was submitted that the society illegally detained all the moveable property and hence committed criminal breach of trust etc. Society filed appeal which was dismissed by Shri I.C. Aggarwal, District Judge Gurdaspur on 20-8-96 and declared that plaintiff was the only legal heir and successor of Ms. Raj Mohini. It was submitted that succession case under S. 388(3) of the Indian Succession Act is final. Society has intentionally denied having propounded panchnama of the list of moveable property under Ss. 11, 12 of the Red Cross Act, society can receive only gift. Will cannot be equated with gift. Under Ss. 223, 236 of the Indian Succession Act, society can obtain succession certificate. It was also submitted that no further separate succession certificate was needed regarding locker and claimed that he is lawful owner of the property of Raj Mohini. probate case was filed in the Court of Shri Bihari Lal, Sub-Judge First Class, Gurdaspur and the society moved application under Section 10, CPC for staying the proceedings of the probate case saying that the same matter was involved in the succession case.
(2.) Defendant-society contested the suit urging that the plaintiff is not entitled to compel the society for the performance of the act as sought in the relief of mandatory injunction. It was also urged that the suit was not maintainable and was liable to be stayed under S. 10, CPC as similar suits are pending. It was denied that the plaintiff was the maternal uncle's son of Raj Mohini. It was denied that Raj Mohini executed any will in favour of the plaintiff on 12-6-87. Rather she had executed a valid will dated 2-4-85 in favour of the society whereby she had bequethed the entire of her estate in favour of the society. It was denied that Ms. Raj Mohini sought to withdraw the will dated 2-4-85 and D.C. Gurdaspur permitted her to withdraw that will dated 2-4-85 vide order dated 10-2-88. It was denied that the society is bound by any admission of Kartar Singh that the will dated 2-4-85 had been revoked by Raj Mohini. Order granting succession certificate qua the debts/securities which were the subject matter of the succession case are not final and nor can the decision given in succession case operate as decision regarding any property beyond those debts or securities.
(3.) On these pleadings of the parties, the following issues were framed :- 1. Whether plaintiff is entitled to mandatory injunction prayed for? OPD 2. Whether present suit is barred under Order 2, Rule 2, CPC as alleged? OPD 3. Whether suit is liable to be stayed under S. 10, CPC as alleged? OPD.2 4. Whether plaintiff has no cause of action to file the present suit as alleged? OPD 2 5. Whether suit has not been propertly valued for the purposes of Court-fee and jurisdiction as alleged? OPD.2 6. Relief.;