Birdhi Lal @APPELLANT@Hash Suresh

Under challenge is the order dated 17.05.2018 passed in Civil Misc. Appeal No.184/2017 upholding the order dated 08.09.2017 whereby the trial court

had dismissed the petitionerplaintiff’s (hereinafter ‘plaintiff’) application under Order 39 Rule 1 and 2.

Mr.Pradeep Kalwania, counsel for the plaintiffs submitted that a suit interalia for cancellation of the will dated 29.02.2016 executed by one Jagdish

their brother/uncle has been filed. By the said will, Jagdish has allegedly bequeathed his 1/3rd share in the joint agricultural property with his two

brothers Birdhi Lal and Badri, aside of his entire non- agricultural property as also FDRs as aggregating to Rs.7,74,092/- to Suresh and

Purushottamâ€" respondent-defendants, his sister’s son who had no affinity within him while he was alive. The will is obviously forged, executed

as it is in suspicious circumstances disinheriting the testator’s immediate family of his own brothers, contrary to custom. Jagdish had no dispute

with his brothers with whom he had common interest in agricultural property jointly held. It has been submitted that the said purported will was

allegedly executed on 29.02.2016 immediately prior to Jagdish being admitted to the hospital where he died on 13.03.2016. It has been submitted that

in the event the respondents Suresh and Purshottamâ€"the alleged beneficiaries of the impugned will dated 29.02.2016, were to act upon the said will

and alienate the immovable properties and appropriate the fixed deposits, were the suit for cancellation of the will to be decreed and the purported will

were to be set aside, the decree would be rendered illusory and futile. It has been submitted that the courts below have overlooked these material

facts on record and dismissed the T.I. application as also the Civil Misc. Appeal perversity, in an irregular of exercise of their jurisdiction.

Ms.Anita Agarwal, counsel for the respondent-defendant submitted that will is a registered one and there is no causation except sterile suspicion to

doubt its authenticity. She further submitted that the trial court as also the Appellate court have noted that there was no proof laid by the plaintiff even

prima facie with regard to the deceased Jagdish suffering from any disability and lacking in capacity to execute the will in issue. It has been further

submitted that the defendants are none other than the sons of the sister of the deceased testator Jagdish. And in view of the close relationship

between them it is obvious that the testator had love and affection for his nephews for reasons of which the will was executed and registered.

Heard. Considered.

The issue in the underlying suit relates to the devolution of the immovable property both agricultural and non-agricultural of the deceased Jagdish as

also certain FDRs standing to his name. The plaintiff are the brothers and the sons of the deceased testator Jagdish. The case set up by them cannot

be dismissed out to hand. Serious triable issues on facts pleaded need to be adjudicated. During the period, the properties in dispute need preservation.

In the circumstances, I am of the considered view that it would be appropriate to preserve the estate of the deceased Jagdish constituted of both

movable and immovable property till the conclusion of the trial in the suit. All ingredients for exercise of the discretion to grant interim injunction

obtain.

I therefore in the facts of the case would quash and set aside the orders dated 17.05.2018 and 08.09.2017 respectively passed by the trial court and by

the appellate court and would direct that the status quo with regard to all immovable properties of the deceased testator be maintained by both the

parties during the pendency of the suit. Status quo with regard to the FDRs also be maintained and they be continued in fixed deposits for next five

years with the bank where they presently obtain and further as necessary.

The trial court is directed to decide the underlying civil suit within a period of 12 months from the date of presentation of a certified copy of this order.

Adjournments in the suit not be granted without just cause and should, when warranted for unavoidable reason be on a proper application filed to the

satisfaction of the trial Court after a decision by a reasoned order. For effectuating this order, the trial court should adhere the observations of the

Hon'ble Supreme Court in case of M/s. Shiv Cotex Vs. Tirgun Auto Plast (P) Ltd. & Others [(2011) 9 SCC 678], as also to Order 17 Rule 1 CPC.

It is made clear that in the event of plaintiffs resort to deliberately delaying the trial in the suit to enjoy the order of status quo passed by the Court, the

defendants shall be free to move an application for recalling of this order and dismissal of the petition.

The petition stands disposed of accordingly