1. This order shall also govern the disposal of M.A. No. 3197/09 as in both the appeals, parties are one and same and both the appeals are arising out of Civil Suit No. 2-A/08. In M.A. No. 3195/09 the appeal is filed against the order dated 7-10-2009 passed by District Judge, Indore whereby the application filed by the appellant under Order 39, Rules 1 and 2, Civil Procedure Code was dismissed in part. In M.A. No. 3195/09 cross-objections have also been filed by the respondent No. 1. In M.A. No. 3197/09 the appeal is against the order dated 14-10-2009 whereby I.A. Nos. 5/08 and 29/09 filed by the appellant for restraining the respondent Nos. 1 to 3 from appropriating/alienating the immovable property was dismissed.

2. Short facts of the case are the respondent No. 1 is mother of the appellant. Respondent No. 2 is the widow of deceased Jaspreet Singh Anand who happens to be brother of the appellant. Respondent No. 3 is adopted son of respondent No. 2 while respondent No. 4 is sister of the appellant. Respondent Nos. 7 to 9 are wife and children of the appellant while respondent Nos. 10 to 12 are children of respondent No. 4 Jagjitsingh who was father of appellant and husband of respondent No. 1 and had died on 23-4-2008. After his death a suit for partition was filed by the appellant against the respondents on 28-8-2008 wherein it was alleged that deceased Jagjitsingh was resident of H.N. 630/2, New Palasia Indore and was owner of many immovable properties besides other properties in the nature of vehicles, cash in deposits in bank, gold, jewellery and bonds etc., details of which were mentioned in para-13 of the plaint. It was further alleged that deceased Jagjitsingh Anand has not made any Will and died inter-state and, therefore his estate would devolve on his wife, respondent No. 1, appellant his sister-respondent No. 4 and his late brother's widow, Manmeetsingh-respondent No. 2 and her adopted son-respondent No. 3. It was alleged that on the demise of his father, appellant asked for a partition from the respondent Nos. 1 and 2 of the assets left behind by the deceased as on date of his death claiming his one-fourth. It was alleged that deceased Jagjitsingh has left behind the property i.e. cash, fixed deposits, share and bonds approximately Rs. 20 Crores. It was alleged that since the appellant is having one-fourth share in the property left by Jagjitsingh which includes immovable and movable, therefore it was prayed that suit he decreed and after partition, one-fourth share be given to the appellant. Apart form other pleadings it was also alleged by the appellant in the plaint that there is a Will alleged to have been executed by Jagjitsingh on 28-6-2003 and a Codicil dated 4-1-2008 and validity of these Will and Codicil were challenged by the appellant. Along with the suit an application was field by the appellant under Order 39, Rules 1 and 2, Civil Procedure Code wherein it was alleged that the respondent Nos. 1 and 2 have started negotiation with the brokers for the properties situated at Mumbai. It was alleged that appellant is having prima facie case and balance of convenience is in his favour. It was prayed that respondent Nos. 1 and 2 be restrained from alienating any part of the estate of the deceased, failing which the appellant would suffer substantial and irreparable injury and would be compelled to litigate with third parties. In the application it was prayed that respondent Nos. 1 to 3 be restrained by issuing temporary injunction from alienating or creating third party rights.

3. The suit and the application filed by the appellant was contested by respondent Nos. 1 to 4 by filing separate written statement. In the written statement filed by the respondent Nos. 1 to 4 it was not disputed that various properties were left behind by the deceased Jagjitsingh but it was alleged that all the properties were self earned properties and in his lifetime Jagjitsingh had made arrangement vide registered Will dated 28-6-2003 and registered Codicil dated 4-1-2008, according to Will property devolves to the respective legatees which includes the appellant and other members of his family. It is also submitted in the written statement that appellant separated himself from his father Jagjitsingh in his lifetime vide agreement dated 1-6-1991. It was alleged that in the agreement itself it was mentioned that appellant shall have no title or interest in the property left with Jagjitsingh. It is submitted that appellant has not come with clean hands and appellant has not at all mentioned this fact in the plaint or application. It was also stated that in the list of properties the properties which belong to respondent Nos. 1 and 2 personally has also been included mala fide. It is submitted that suit and the application filed by the appellant be dismissed.

4. After hearing the parties learned Court below allowed the application filed by the appellant in part whereby respondent Nos. 1 to 3 were directed to maintain status quo with respect to immovable properties alleged in the plaint. Respondent Nos. 1 to 3 were also restrained from alienating the suit property by creating any third party rights so as to avoid further litigation till disposal of the suit. They were also directed to submit statement of movable property such as cash in hand, jewellery, Bank receipts, share certificates, Bonds etc. in the Court within one month. After passing of the order impugned herein, on 14-10-2009, a separate application under Order 39, Rules 1 and 2 was filed by the appellant which is marked as I.A. No. 29/09 wherein it was prayed that pending disposal of the suit, respondent Nos. 1 to 3 be restrained from appropriating to themselves any part of the movable property. It was also prayed that respondent Nos. 1 to 3 be ordered to produce inventory/cash flow of the movable assets. At that time another application was pending which was marked as I.A. No. 5/08 wherein the prayer was that respondent Nos. 1 to 3 be restrained from appropriating to themselves the interest accumulating on the fixed deposits in the Bank. Both these applications were also opposed by the respondent Nos. 1 to 3. Both these applications were dismissed by the learned trial Court vide order dated 14-10-2009. against which another appeal i.e. M.A. No. 3197/09 has been filed by the appellant.

5. Learned counsel for the appellant submits that impugned order so far as it relates to dismissal of the application of the appellant with regard to movable property is concerned, is illegal, incorrect and deserves to be set aside. Learned counsel submits that undisputedly Jagjitsingh was father of the appellant who died and, therefore appellant and respondent Nos. 1, 2 and 3 and 4 each are entitled 25% of the share in the property left by the deceased. It is submitted that in order to defeat the claim of the appellant, the respondent Nos. 1 to 3 are placing reliance on the Will dated 28-6-2003 and Codicil dated 4-1-2008 which are forged and not valid documents for various reasons. It is submitted that even otherwise no reliance can be placed on these documents because no probate has been obtained by the respondent Nos. 1 to 3 on the basis of the said Will and Codicil. For this contention, reliance is placed on section 213 read with section 57 of the Indian Succession Act, 1925 which reads as under :

Section 57. Application of certain provisions of Part to a class of Wills made by Hindus - The provisions of this part which are set out in Schedule III shall, subject to the restrictions and modification specified therein, apply -

(a) to all Wills and codicils made by any Hindu, Buddiest, Sikh or Jaina, on or after the first day of September, 1870 within the territories which at the said date were subject to the Lieutenant- Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territorial and limits so far as relates to immovable property situate within those territories or limits; and

(c) to all Wills and codicils made by any Hindu, Buddist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b),

Section 213. Right as executor or legatee when established. - No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted Probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an unauthenticated copy of the Will annexed.

(2) This section shall not apply in the case of Wills made by Muhammadans, and shall only apply,

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) ****

6. Learned counsel placed reliance on a decision in the matter of Ghanshyamdoss Naravandos v. Gulab Bi Bai, AIR 1927 Madras 1054, wherein question before the Full Bench of Madras High Court was that "Can a defendant resisting a claim made by the plaintiff as heir-at-law rely in defence on a Will executed in his favour at Madras in respect of property situated in Madras when the Will is not probated and no letters of administration with the Will annexed have been granted, and the same was answered that "the mere existence therefore, of a Will does not necessarily displace the plaintiff's title. It is necessary for the defendant to go further and to prove that some one other than the plaintiff has title under the Will. This he cannot do by virtue of the provisions of section 187. In the circumstances, it was therefore held that the defendant cannot use an unprobated Will as a defence.

7. Learned counsel further placed reliance on a decision in the matter of Clarence Pais v. Union of India, (2001) 4 SCC 325, wherein it was held that "the scope of section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a Will without production of a probate and sets down a rule of evidence and forms really a part of procedural requirements of the law of forum. The section is a bar to everyone claiming under the Will whether a plaintiff or defendant, if no probate or letters of administration is granted."

8. Lastly reliance was placed on a decision in the matter of Binapani Kar Chowdhary v. Sri Satyabrata Basu, (2006) 10 SCC 442, wherein it was held that "the words of section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration or the Will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained or the Will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor, whosoever wish to establish that right whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right or to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the Will under which the right as a legatee or executor is claimed is followed by the grant of a probate or letters of administration. It is submitted that the probate is required for the classes of the Wills which are mentioned under section 57(a) and (b) of Indian Succession Act. It is submitted that since the Will is covered under Clause-b of section 57 of Indian Succession Act, therefore, as per section 213 of the Act probate/letter of administration is necessary.

9. It is submitted that on the strength of aforesaid position of Law, the appeal filed by the appellant be allowed and impugned order passed by the learned Court below whereby the application filed by the appellant for temporary injunction relating to movable property was dismissed, be set aside and injunction be granted against the respondent Nos. 1 to 3.

10. Learned counsel for the respondent Nos. 1 to 3 submits that no illegality has been committed by the learned Court below in dismissing the application so far as it relates to movable property. Learned counsel submits that learned Court below committed error in passing the impugned order whereby injunction has been granted relating to entire immovable property included in the plaint. It is submitted that learned Court below has not bothered to see that those properties which are the separate properties of the respondent Nos. 1 to 4, were also included while seeking injunction. It is also submitted that appellant is having no prima facie case. His claim for 1/4th share in the properties left behind by Jagjitsingh Anand is on the footing that he died intestate, is not maintainable in view of the two valid, operative, registered and duly executed Will and Codicil which are sported not only by defendant No. 4 who is sister of the appellant, but also by appellant's wife (respondent No. 7) and his sons (respondent Nos. 8 and 9) who are claiming their legacy under the same Will and codicil and insisting upon respondent No. 1 to part with that legacy. Learned counsel further submits that no probate is necessary for claiming rights on the basis of Will which was executed by deceased Jagjitsingh. For this contention reliance is placed on a decision of Division Bench of this Court in the matter of Phoolsingh v. Smt. Kosa Bai, 1999(1) MPJR 352, wherein Division Bench of this Court has held as under :

"Will executed by Hindu outside the territories of presidency towns, obtaining of probate is not necessary and Civil Court can consider the genuineness of the Wills. It was further held that obtaining of probate is not necessary even in case of rival Wills."

11. Further reliance was placed on a decision in the matter of Vijendra Singh Yadav v. Rajkumari Yadav, 2005(4) MPLJ 160. Wherein after placing reliance on a decision in the matter of Phoolsingh (supra), this Court has held that judgment of Division Bench of this Court was binding.

12. It is submitted that apart from that, no irreparable injury is going to be caused to the appellant. On the contrary if any injunction is granted then irreparable injury would cause to respondent No. 1, it is also submitted that balance of convenience is in favour of respondent No. 1, it is also submitted that cross-objections have also been filed by the respondent No. 1 wherein it is prayed that impugned order passed by the learned trial Court whereby it is mentioned that respondent No. 1 undertakes not to alienate the property be set aside. It is submitted that respondent No. 1 is a senior citizen and an old widow lady. It is submitted that undertaking was given relating to immovable property by the respondent No. 1 with a hope that suit would be decided within a short time but it appears that appellant is not at all interested in getting the suit disposed of as appellant has moved more than 35 applications so far which is evident from the record. It is submitted that the respondent No. 1 has lost hope that the litigation which has started after the death of her husband will end in her lifetime. It is submitted that in the facts and circumstances of the case, the cross-objections filed by the respondent No. 1 be allowed and while dismissing the appeal filed by the appellant the impugned order whereby the respondent No. 1 has been restrained to alienate the immovable property be set aside.

13. At the outset a preliminary objection is raised by the counsel for the appellant relating to cross-objections filed by respondent Nos. 1 to 3. Learned counsel submits that in an appeal filed under Order 43, Rule 1, Civil Procedure Code no cross objections are maintainable. It is submitted that since no appeal has been filed by respondent Nos. 1 to 3 against the impugned order therefore, the validity of the order so far as it relates to in favour of appellant cannot be looked into. It is submitted that cross-objections filed by respondent Nos. 1 to 3 be dismissed.

14. So far as interlocutory applications are concerned, learned counsel for the appellant fairly concedes that number of interlocutory applications were filed by the appellant before the learned Court below from time to time but most of them were allowed, which shows that interlocutory applications filed by the appellant were based on bona fides. It is submitted that to move interlocutory application is a right of a party to the litigation, which cannot be denied.

15. So far as maintainability of cross-objections is concerned, it is true that cross-objections can be filed in appeal against impugned judgment/order under Order 41, Rule 22, Civil Procedure Code. Section 108 makes Chapter VII apply to all appeals, irrespective of whether they arise from decrees or orders. Order 43, Rule 2, clearly lays down that the rules of Order 41 shall apply, so far as may be, to appeals from orders. It appears from this that the intention is to allow all matters covered by Order 41 so far as they can be made applicable to appellate orders and appeals therefrom as well. It is quite clear therefore that a cross-objection in an appeal against an order appealable under Order 43. Rule 1, Civil Procedure Code can be made. This aspect of the case has been taken into consideration by this Court in the matter of Beniprasad Agarwal v. Hindustan Lever Ltd., Bombay, 1957 MPLJ 676 = AIR 1958 Madhya Pradesh 348, wherein this Court held that cross-objections in appeal against such order can be made and the cross- objections be placed as an appeal after it is filed.

16. In view of the aforesaid position of law, preliminary objection raised by the appellant that the cross-objection filed by respondent Nos. 1 to 3 are not maintainable, is not tenable.

17. From perusal of the impugned order passed by the learned Court below it is evident that while passing the impugned order whereby respondent Nos. 1 to 3 were restrained. Learned Court below has observed that for just disposal of the application for grant of temporary injunction it is required to be considered whether plaintiff has prima facie case, whether balance of convenience is in his favour and whether irreparable loss will be caused, if injunction is not granted in favour of plaintiff, but in the later part of the order, none of the aspects were taken into consideration by the learned trial Court. However, the application was allowed in part so far as it relates to immovable properties only upon the undertaking given by the respondent No. 1.

18. From perusal of the record it is evident that deceased Jagjit Singh Anand was the father of the appellant and husband of respondent No. 1, who passed away on 23-4-2008. Age of respondent No. 1 is mentioned in the plaint as 69 years in the year 2008, when the suit was filed, it appears that number of important aspects were not taken into consideration by the learned Court below while passing the impugned order, which are as under :

i. Property in dispute is self earned property of late Shri Jagjit Singh Anand and is not the ancestral property.

ii. Vide document dated 1-6-1991 late Shri Jagjit Singh Anand in his lifetime. In the said agreement itself there is a recital in para-7, which reads as under :

"That, all the properties which are in possession and control of the party of the First Part, (deceased) either movable or immovable are self-earned properties of the Party of the First Part, they are not ancestral properties and the Party of the Second Part (appellant) shall not be entitled to claim any right and interest therein and the Party of the First Part shall be entitled to deal with those properties in any way he likes and will be further entitled to alienate those properties to any one by way of transfer be gift, sale, will etc., and the party of the second part will not be entitled to have any grievance and will have not objection and any way of even if, he claims his claims his claim will be deemed to be unjust and illegal and devoid of any force."

iii. Execution of this document is not disputed by the appellant. This document is attested by two witnesses namely Mr. G. S. Kohli s/o B. S. Kohli R/o Scheme No. 74-C, Indore and Mr. Ramesh Pahuja s/o Shri Vishandas Pahuja, R/o 64 Manishpuri Colony, Indore. The Will dated 28-6-2003 and the codicil dated 4-1-2008 are not only registered but also attested by the same witnesses, of whom photographs are affixed on the Will and codicil. These witnesses have also submitted affidavits to the effect that the Will and codicil were executed by the deceased in his lifetime on the dates mentioned in the document in their presence and both of them has also signed the abovementioned documents in his presence. These two witnesses were also witness of the agreement dated 1-6-1991 which was executed between the appellant and deceased Jagjitsingh Anand. Apart from this the Will and codicil dated 28-6-2003 and 4-1-2008 are challenged for importunity and undue influence. It is also challenged on account of unsound mind, signatures/thumb impression are forged. On that ground only the genuineness and the validity of the Will is under challenge.

iv. In the Will dated 28-6-2003 there is a specific recital to the effect that the testator (deceased) had effected the partition during the year 1991 in favour of appellant and accordingly the share amongst the property had been bequeathed to him, henceforth there will not remain any right/share of appellant and his successors in any/all of the movable and immovable properties.

v. The Will gives the description of various properties left by the deceased out of which two properties are situated at Mumbai and also at Delhi. In para 5 of the Will there is a description that after his death the properties, which are bequeathed to the wife of the deceased as absolute owner for her to use, consume, occupy and enjoy. After the demise of his wife (respondent No. 1) all movable and immovable properties transferred in her name shall go to her grandson Angad, which will be looked after, arranged and maintained by his mother respondent No. 2 as a testamentary guardian till he attains majority and becomes an adult. On attaining adulthood and majority, the Will remain available the legal right and possession to Angad respondent No. 3 to possess and enjoy the said properties herein bequeathed by appellant in his favour by virtue of this Will.

vi. According to the appellant the share of respondent No. 4 is 1/4th in the suit property being daughter/legal representative of deceased Jagjit Singh Anand, while she is not getting that much of property by the said Will and codicil. In spite of that she is supporting the case of respondent No. 1 and admitting the execution of Will and codicil. The admission of the respondent No. 4 is self harming admission and is not the self serving, which can be treated as the best piece of evidence.

vii. Respondent Nos. 7 to 9 (wife and sons of appellant) are claiming their rights on the basis of Will and codicil. From the record it is evident that appellant and respondent Nos. 7 to 9, are living together, Apart from this it is not the contention of the appellant that the respondent Nos.7 to 9 are living separately or not in his control. Before the learned trial Court when the applications were filed by respondent Nos. 7 to 9 claiming the movable and immovable properties as per the Will, the appellant has submitted a reply wherein it was alleged that appellant has no objection in deposit of above amount in Court and original documents of flat at Delhi in Court provided till decision of this partition suit the title of the aforesaid properties remains estate of (Late) Shri Jagjit Singh Anand.

viii. Apart form all the aforesaid on the top of it the respondent No. 1 is the widow and is a senior citizen. The span of life of respondent No. 1 can be said to be short and limited.

ix. In the codicil, which is titled as amended Will dated 4-1-2008, it is further proceeded that after the death of the testator whatsoever the properties devolve on his wife, she would not be entitled to transfer and/or alienate those properties on her own to anyone else in any manner. Respondent No. 1 is only entitled to make the use, occupation and possession and enjoyment of the properties left by the deceased.

19. So far as legal question which has been raised by the appellant to the effect that no right can be claimed by the respondent Nos. 1 to 3 in the properties left by deceased Jagjit Singh Anand on the basis of Will and codicil as no probate has been obtained which is mandatory requirement of law is concerned, in all the cases cited hereinabove either the properties under the Will are situated in the ordinarily civil jurisdiction of the High Courts of Judicature at Madras and Bombay or in the jurisdiction of M.P. In none of the cases properties were situated at both the places. While in the case in hand most of the properties are situated in M.P. and only some of the properties are situated at Delhi and within the local limits of the ordinary original civil jurisdiction of High Court of judicature at Mumbai. Thus on facts all the case laws submitted are distinguishable. However, suffice to say that both the parties has placed reliance on a decision of Hon'ble Apex Court in the matter of Clarence Pais (supra) wherein Hon'ble Apex Court observed that a combined reading of sections 213 and 57 of the Act would show that where the parties to the Will are Hindus or the properties in dispute are not in territories falling under section 57(a) and (b), sub- section (2) of section 213 of the Act applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a Will made outside those territories or covering the immovable properties situated out side those territories. In view of this, prima facie it can safely be said that while deciding the application under Order 39, Rules 1 and 2 of Civil Procedure Code the registered Will and codicil cannot be ignored only because it is unprobated.

20. So far as balance of convenience is concerned, keeping in view the age of respondent No. 1 and also keeping in view the fact that the respondent No. 2 is young widow and is none else but the wife of brother of appellant, this Court is of the view that the balance of convenience is in favour of respondent Nos. 1 and 2, as appellant has already got the property in the lifetime of late Shri Jagjit Singh Anand vide agreement dated 1-6-1991 and also there is a provision in the Will for the appellant and his family. I

t will not be out of place to mention that on 1-6- 1991 when some properties were given to appellant, there is nothing on record to show that properties were also given to respondent Nos. 1 to 3. 21. So far as irreparable injury is concerned, it is going to cause to respondent Nos. 1 and 2, if an injunction is granted, because the way in which the suit is going on, it may take its own time and by the time the dispute is finally decided, respondent No. 1 may not be available to enjoy the properties left behind by none else than her husband. 22. It is true that in case appellant succeeds in his suit, then appellant is entitled 1/4th share in the suit property left by Late Shri Jagjit Singh Anand, in that case his interests are well protected by the codicil itself wherein the riders are put on the respondent No. 1 and again under the principle of lis pendens enacted in section 52 of Transfer of Property Act. So far as apprehension of appellant that respondent Nos. 1 and 2 started negotiation with the brokers for the properties situated at Mumbai is concerned, is without any basis. 23. It is true that respondent Nos. 1 and 2 gave an undertaking before the learned Court below to the effect that they are not going to dispose of the suit property and they would not sale, transfer or create any third party rights. But this undertaking was given before one year and in spite of lapse of considerable time, there is not progress in the suit. On the instance of appellant, record of Civil suit is also called which is lying here unnecessarily. In the facts and circumstances of the case, in the opinion of this Court it will not only unjust but also harsh to freeze 3/4th undisputed share of respondent Nos. 1 to 3 for the disputed 1/4th claim of appellant. 24. In view of this both the appeals filed by appellant is dismissed and the cross-objections filed by respondent Nos. 1 and 2 are allowed. It is made clear that respondent Nos. 1 to 3 shall enjoy the properties left by deceased as per the wishes of the deceased. So far as movable properties are concerned, respondent Nos. 1 to 3 shall be at liberty to enjoy the same, but shall keep accurate account of the same, which may be required to be submitted in execution, in case the suit filed by the appellant is decreed. 25. With the aforesaid observations, both the appeals stands disposed of. Record be sent back forthwith. Learned Court below is directed to frame the issues within a period of one month from the date of appearances of parties and conclude the trial at the earliest within a period of six months. Direction of early disposal of the suit is being given as no injunction is granted to the appellant and respondent No. 1 is not only the widow but also a senior citizen. It is made clear that the lower Court shall proceed uninfluenced by observations made in this order. Copy of this order be placed in the record of M.A. No. 3197/03. C.C. as per rule. Appeals dismissed.