RAVINDRA KUMAR versus SPECIAL JUDGE/ADJ ALIGARH AND ANOTHER

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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Ravindra Kumar v. Special Judge/Adj Aligarh And Another - WRIT - C No. 77511 of 2005 [2006] RD-AH 111 (2 January 2006)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                    COURT NO. 54

CIVIL MISC. WRIT PETITION NO. 77511 OF 2005

Ravindra Kumar..........................Plaintiff/Petitioner.

                                    Versus

Special Judge/Additional District Judge Aligarh and another.....................................Defendant/Respondents.

Hon. Mrs. Poonam Srivastava, J.

Heard Sri Atul Tej Kulshrestha, learned counsel appearing for the petitioner and Sri M.K. Gupta, Advocate, appearing for the caveator/respondent.

This writ petition has been filed challenging the orders dated 1.3.2004 and 25.7.2005 refusing to grant temporary injunction.  Submission on behalf of the petitioner is that he claims his right over the disputed property house no. 19/4 on the basis of unregistered Will in his favour.  He stakes his claims as an adopted son of the deceased.  However, it is admitted that house no. 19/4 Gandhi Nagar is joint family property and the contesting respondent is nephew of the deceased, who claims his right over the property of the petitioner on the basis of a registered Will, which is prior in time.  The courts below have refused to grant injunction, as the registered document can only be set at naught by another registered document.  No doubt, it is settle principle of law that Will is an exceptional circumstance where it need not be registered.  It is always subsequent Will which take precedence. However, it is yet to be decided in the suit as to whether the subsequent Will is a valid document or not.  I, therefore, refrain to give any opinion on this subject.

The injunction application has been annexed as annexure no. 2 to the writ petition, where the prayer is for restraining the defendant, who is nephew of the deceased from interfering in petitioner's possession over the property in question. It is also settled principle of law that one co-owner cannot be granted injunction against other co-owner.    The courts below have rightly refused to grant injunction restraining the co-sharers to use the property in question.   The writ petition lacks merit and is, accordingly, dismissed.

Dt. 2.1.2006

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