Allowed

Jagdeep Singh v. Swarn Singh @ Sarwan Singh and Anr.

Uttarakhand HC7 May 2013AO/427/2012

Case brief

AI extract

What is this about?

This appeal challenged a temporary injunction restraining the appellant from mutating or transferring property based on a registered will. The High Court held that civil courts cannot restrain mutation or transfer under a valid will without first cancelling the will under Section 331 of the UP Zamindari Abolition Act and Section 41 of the Specific Relief Act.

What did the court decide?

Impugned order dated 30.05.2012 granting temporary injunction set aside. Defendant directed not to create third party interest pending suit disposal.

Jagdeep Singh Vs Swarn Singh @ Sarwan Singh and Anr. — Partition | Uttarakhand HC (2013)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Appeal From Order No. 427 of 2012

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Jagdeep Singh S/o Late Sri Tota Singh R/o Gram Majri Grant, Tehsil Rishikesh, District Dehradun.

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….…..Defendant/Appellant

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Versus

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Shri Swarn Singh @ Sarwan Singh S/o Late Sri Tota Singh

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Sri Gyan Singh S/o Late Sri Tota Singh R/o Gram Majri Grant Tehsil Rishikesh, District Dehradun.

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…….Plaintiffs/respondents

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Mr. Piyush Garg, Advocate, present for the defendant/appellant. Mr. R.K.S. Verma, Advocate, present for the plaintiffs/respondents.

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Hon’ble Prafulla C. Pant, J.

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This appeal, preferred under Order 43 Rule 1 of Code of Civil Procedure, 1908, is directed against order dated 30.05.2012, passed by Civil Judge (Senior Division), Rishikesh, in Original Suit No. 25 of 2011, whereby said court has granted temporary injunction disposing off application 6C2, against the defendant with direction that he shall not seek mutation, or transfer of the property in suit , regarding which, he claims to have inherited the same through a ‘Will’ dated 21.06.2010.

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2) Heard learned counsel for the parties.

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Brief facts of the case are that plaintiffs and defendant are real brothers. After the death of their father they alongwith their mother inherited the land situated in Village Majri Grant, Pargana Parwadoon, Tehsil Rishikesh, District Dehradun, details of which are mentioned at the foot of the plaint. Plaintiffs Swarn Singh and Gyan Singh instituted the suit No. 25 of 2011, against the defendant (present appellant) stating that the parties alongwith their mother Dhan Kaur were collectively cultivating the land of their father late Tota Singh. It is alleged in the plaint that the defendant fraudulently, got executed the ‘Will’ dated 21.06.2010, in respect of share of their mother and intend to dispose of the same after mutating his name.

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The defendant contested the suit and pleaded that the partition of the property between the plaintiffs, defendant and their mother had already taken place during the life time of father of the parties to the suit. Defending the ‘Will’ executed in favour of the defendant by his mother, on the ground that the same was executed in a fit set of mind by her, it is pleaded by the defendant that the plaintiffs are not entitled to the relief claimed by them.

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The trial court after hearing the parties granted temporary injunction and restrained the defendant from taking steps for mutation, transferring the land and interfering with it on the basis of the ‘Will’ dated 21.06.2010.

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Learned counsel for the appellant (defendant) submitted that the ‘Will’ in question is a registered document. The plaintiffs have not sought cancellation of the ‘Will’ executed by their mother in favour of the defendant. It is also contended that under Section 169 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, mother of the defendant had right to bequeath her share in the property.

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Having considered submission of learned counsel for the appellant, and after going through the impugned order, this Court is of the view that the temporary injunction granted by the trial court that the defendant is restrained from seeking mutation on the basis of the registered ‘Will’, executed by his mother, is directly hit by Section 331 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and Section 41 of Specific Relief Act, 1963, particularly when cancellation of the document has not been sought by the plaintiffs.

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Therefore, this appeal is allowed. Accordingly, the impugned order dated 30.05.2012, passed by Civil Judge (Senior Division), Rishikesh, in Original Suit No. 25 of 2011 is set aside. However, it is directed that till the disposal of Suit, the defendant shall not create any third party interest in respect of the property said to have been inherited by him on the basis of ‘Will’ in question (Stay Application No. 13618 of 2012, also stands disposed of).

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(Prafulla C. Pant, J.)

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07.05.2013 JM

Jagdeep Singh v. Swarn Singh @ Sarwan Singh and Anr.

Case brief

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Jagdeep Singh v. Swarn Singh @ Sarwan Singh and Anr.

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