This writ petition sought an injunction to exclude the respondent brother from a suit property based on an unchallenged will. The High Court dismissed the petition, finding that the will was not produced within two years of the testator's death as admitted by petitioners, precluding judicial interference.
The writ petition was dismissed.
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Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8930 of 2018
Petitioner :- Phoolchand Dubey And Another Respondent :- Badri Nath Dubey Counsel for Petitioner :- Suresh Chandra Varma,Padmaker Pandey
Counsel for Respondent :- Ashok Kumar Singh
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the parties.
The petitioners are claiming injunction with regard to the suit property to the exclusion of brother of the petitioner no. 1 on the basis of a Will deed dated 11.12.2003 allegedly executed by their mother Smt. Narmada Devi who died on 5.8.2012.
The suit for injunction namely the original suit no. 1169 of 2014 has been filed after two years of the death of Smt. Narmada Devi who was admittedly owner and occupier of the suit property.
Both the Courts below have recorded a categorical finding that the Will allegedly executed by Smt. Narmada Devi had not seen the light of the day for a period of two years i.e. till the presentation of the injunction suit, by the petitioners/plaintiffs.
The question as to whether the 'Will' is a genuine document and the plaintiffs would get a declaration in their favour to the exclusion of their brother is subject matter of evidence.
The submission of learned counsel for the petitioners that the will has not been challenged by the defendant would not be a ground to assail the orders impugned, in view of the admitted fact that has come up on record that the plaintiffs did not assert their right on the basis of the 'Will' prior to filing of the present injunction suit.
For the aforesaid, no infirmity can be attached to the order impugned.
The present petition is, accordingly, dismissed .
Order Date :- 5.12.2018 Brijesh
1 issue framed by the court
Whether the High Court can intervene in impugned orders rejecting the petitioners' claim of injunction based on a will not presented within two years of the testator's death.
Phoolchand Dubey
Badri Nath Dubey
Sunita Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
