TMI Blog1993 (9) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... of land. (3) The petitioner is not a resident of India and has been residing continuously abroad. The petitioner received from the Delhi Development Authority, respondent No.5, addressed to the testatrix Smt. Dhan Kaur that the lease in respect of the said plot of land would be cancelled if the constructions were not raised on the said plot of land as the lease in respect of the said plot was granted for the purpose of raising construction for residential purposes. In the above said circumstances the petitioner requested his sister i.e. respondent No.2 to approach the Dda for the property being mutated in favor of the heirs of the testatrix i.e. the petitioner and respondents No.2 and 3 as the petitioner at that time was not in possession of the original will nor a copy thereof. In view of the above, the said property was got mutated in the joint names of the petitioner and respondents No.2 and 3 in order to preclude the Dda from cancelling the lease deed in favor of the deceased. Later on, certain constructions were raised on the said plot of land (for short 'the disputed property'). A completion certificate was also issued. (4) The petitioner came to India on Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed property to the objector in her personal capacity as an attorney for and on behalf of the petitioner and respondent No.3. The objector are in actual and physical possession over the disputed property for the last two years. The Court while dealing with the probate petition is not competent enough to grant any injunction. The injunction application is thus false and frivolous and is liable to be dismissed. (8) Learned counsel for the objector Mr. G.L. Rawal during the course of his arguments has raised a preliminary objection with regard to the maintainability of the present petition. According to the learned counsel, the present Court is dealing with a probate petition and, as such, this Court is not competent enough to grant an injunction. According to the learned counsel, the inherent powers of the High Court on its Original Side cannot be invokved in such.a case. The application, according to the learned counsel, is thus liable to be dismissed on this short ground alone. (9) Learned counsel for the petitioner Mr. Endlaw, on the other hand, has contended that this Court even in a probate matter is fully competent under its inherent jurisdiction to grant an injuncti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appointment of an administrator pendente lite. If such powers are exercised in probate cases by a probate court, there is no reasonable chance of any property being dissipated, pending the actual grant of a probate or the appointment of an administrator . (14) To the same effect are the observations of their Lordships of the Supreme Court as (Manohar Lal Chopra V. Rai Bahadur Rao Raja Seth Hiralal).... Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the fact of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has but been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code . (15) In view of the above, I conclude that the present application is maintainable and this Court can grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Succession Act. Hence, the present petition is liable to be flung away to the winds on this short ground alone. It is true that the present petition has been filed without the verification by one of the two as required under Section 281 of the Succession Act. However, to my mind the said require- ment is not mandatory but only directory and no petition can be dismissed on the said score. The petitioner has himself explained (vide para 8 of the petition) as to under what circumstances the present petition was filed without the verification from one of the said two witnesses. According to him, Shri Bhola Dutt, one of the attesting witnesses is not traceable. The other attesting witness Shri Yogender Pal was not coming forward to verify the petition. (19) The above view was given vent to in (Nand Kishore Rai and another V. Mst. Bhagi Kuer and others). It was observed Verification of a petition required under S. 281 similar to verification required of pleadings, including a plaint, under 0.6 R.15, Civil Procedure Code .. and has no greater effect or value. Omission to verify, or defective verification of, a pleading is a mere irregularity within S.99.C.P.C., and is never fatal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he co-owners Kulbir Singh and Smt. Loveleen Mehta. A perusal of the same further reveals that she executed that agreement to sell in respect of her one-third share only. As I have already observed above, it is not open to this Court to go into the validity of title particularly so while dealing with an injunction application, it is premature to adjudicate upon the rights of the parties at this stage. (22) There is yet another aspect of the matter. Learned counsel for respondent No. 1, Mr. K.R. Gupta, during the course of his arguments has placed on record an order dated July 7, 1993 passed by the Additional Commissioner (Engg), Mr, Pradeep Singh. A perusal of the same shows that the sanction to raise any construction on the disputed property has been revoked. Thus, the objector cannot raise any construction in the absence of a permission from the municipal authorities to do so. (23) The petitioner by the institution of the present petition has raised a substantial question that Smt. Dhan Kaur i.e. the mother of the petitioner executed a will in his favor on February 19,1973. He thus wants that a probate be granted on the basis of the said will. The said question is to be gone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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