Ram Chand Gupta, J. - (1.) C.M. No. 4969 -CII of 2011.
(2.) APPLICATION is allowed subject to all just objections. Civil Revision No. 1204 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing of impugned order dated 21.8.2010, Annexure P3, passed by learned Additional District Judge, Ludhiana, vide which order dated 16.10.2007, Annexure P2, passed by learned Civil Judge, Junior Division, Ludhiana, has been modified.
(3.) I have heard learned Counsel for the Petitioners and have gone through the whole record carefully including the impugned orders passed by learned Courts below. Facts relevant for the decision of present revision petition are that dispute is regarding inheritance of property left by Gurcharan Singh, father of Respondent -Plaintiff Harpreet Kaur and Petitioner No. 2 -Defendant No. 2 -Jasmeet Singh and husband of Petitioner No. 1 -Defendant No. 1 -Rajinder Kaur. Suit has been filed by Respondent -Plaintiff, who is daughter of deceased Gurcharan Singh on the basis of natural succession claiming ownership to the extent of 1/3rd share in the property left by her father Gurcharan Singh. Present Petitioner -Defendants are claiming ownership of the entire property on the basis of an unregistered Will dated 18.5.2000 allegedly executed in their favour by Gurcharan Singh deceased. However, execution of the Will by Gurcharan Singh has been denied by Respondent -Plaintiff. She has taken the plea that Will is a forged and fabricated document and the same has been prepared just to deny her rights in the property. Hence, it has been rightly observed by learned courts below that execution of the Will is yet to be proved by the present Petitioners, who are profounder of the same as per requirements of Evidence Act and the Indian Succession Act. Petitioners are also required to remove all the suspicious circumstances before the same is accepted as a last Will of the testator. Learned appellate Court vide impugned order has allowed application of Respondent -Plaintiff only to the limited extent that present Petitioner -Defendants have been restrained from alienating the suit property to the extent of 1/3rd share of Respondent -Plaintiff during the pendency of the suit by observing as under: As far as alienation of the suit property is concerned, it is clear that both the parties are claiming ownership of the suit property and disputing the rights of each other. As the Will is yet to the established on the file, if the Defendants/Respondents succeeded in alienating the suit property, then the Plaintiff/Appellant would suffer an irreparable loss and injury if she later on succeeded to prove her case. In, 2005(1) CCC 430 (SC) in case titled as Maharwal Khewaji Trust Regd. Faridkot v. Baldev Dass, it has been held by Hon'ble Apex Court that temporary injunction cannot be declined on the basis that alienation will be subject to law of lis pendens and construction raised will be at own risk or on the basis of undertaking that there will be no alienation and construction will be at own risk. Unless and until a case of irreparable loss or damage is made out by the party to the suit, court should not permit the nature of the property being changed which also includes alienation or transfer of property which may led to loss or damage being caused to the party who may ultimately succeed and may further led to multiplicity of the proceedings. The law laid down in this citation is fully applicable to the facts of the case in hand. When there is dispute between the parties and both are claiming ownership, then the subject matter of the suit must be protected/preserved by stay of alienation thereof during litigation. Section 52 of Transfer of Property Act will also apply. As such, Plaintiff/Appellant is entitled to the injunction thereby restraining the Defendants/Respondents from alienating her 1/3rd share in the suit property till the final decision of this case. Prima facie case and balance of convenience is in favour of the Plaintiff/Appellant. If injunction is not granted then she will suffer an irreparable loss and injury which cannot be compensated in terms of money. The order of the trial Court to that extent is perverse and is liable to be set aside. Accordingly, the order of the learned trial Court is partly set aside and the Respondents are restrained from alienating the suit property to the extent of 1/3rd share till the final decision of this case.;