Mr. Praveen Agrawal, Mr. Sunil Kumar Ms. Lucky Rani, Advs v. SAJJAN PASARI ANR

Judgment

1. Through this appeal, the Appellant herein assails the correctness of the Judgment dated 14.05.2025, passed by the learned Single Judge in two applications being I.A. No. 6201/2022 and I.A. No. 9027/2023 Signature Not Verified FAO(OS) 81/2025 Page 1 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09 filed in CS(OS) 225/2022, titled as Asha Jain vs. Sajjan Pasari and Anr., wherein the ex parte ad-interim Order dated 01.08.2022

directing the Respondents/Defendants to maintain status quo with regards to title of all the properties listed in Schedule A of the plaint, was vacated. 2. On 21.04.2022, as alleged by the learned Senior Counsel for the Respondents, the Plaintiff/Appellant herein filed a suit for partition against the Respondents, asserting her claim as a co-sharer in the properties left behind by her deceased father, late Shri Banwari Lal Pasari, who passed away on 22.05.1999. 3. It is claimed that late Shri Banwari Lal Pasari was survived by two daughters, namely, Asha/Appellant and Sarita/Respondent No. 2 and a foster son, namely, Sajjan Pasari/Respondent No. 1. 4. At the outset, the learned counsel appearing for the Appellant submitted that this Court has territorial jurisdiction to entertain the suit as one of the suit properties is located in Delhi. 5. Respondent No.1 filed a written statement in the suit, submitting that most of the suit properties were transferred by late Shri Banwari Lal Pasari in favour of the Defendants through deeds. Details of the property and its owners were disclosed as follows: Sl. No. A. Property Details Ownership List of Documents Item A of Schedule A: W-52, Second Floor, Greater Kailash-II, New Delhi Sandeep Mr. Kataria and Ms. Bhavna Kataria NA Signature Not Verified FAO(OS) 81/2025 Page 2 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09 B. Item B of Schedule A: H. No. 4 and 4-A, Rainey Park, Kolkata - 700019 Purushottam Das Shankar Lal HUF C. Item C of Schedule A : Property at : 12-A and 12-B, Russel Street Kolkata Purushottam Das Pasari for 12-A Russel Street [Uncle Plaintiff] Hindustan Auto Distributors is the recorded for 12-B Russel Street a. Registered Indenture dated 19th December, 1946 executed favour of Laxmi Devi Pasari. b. The Last Will and Testament of Laxmi Devi 11th Pasari 1991 with September, Bhagirath Pasari as named Executor. The said property bequeathed to the HUF which has already been given effect to. c. Probate of Laxmi Devi Pasari dated 18th May, 2001 granted to Bhagirath Pasari by the High Court of Calcutta as a result of which the said property vested in the said HUF. d. Mutation Certificate dated 21st February, 2024 issued by the Kolkata Municipal Corporation. e. Latest Tax Receipt for the four quarters of FY 2024-2025 issued by the Municipal Kolkata Corporation on 3rd May, 2024. Indenture a. Registered dated 22nd January, 1960 executed favour of Purshottam Das Pasari. b. Tax Receipts issued by the Kolkata Municipal Corporation for the period the Financial Year 2024-2025 showing Purshottam Das Pasari as the recorded owner of 12A Russel Street. Signature Not Verified FAO(OS) 81/2025 Page 3 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09 c. Tax Receipts issued by the Kolkata Municipal Corporation for the period the Financial Year 2024-2025 showing HAD as the recorded owner of 12B Russel Street. a. Registered Indenture dated 27th December, 1960 by virtue of which India (1960) Automobiles Limited absolute owner. b. Order dated 16th May, 2005 passed by the High Court Calcutta sanctioning a Scheme of Arrangement business outgoing undertaking 1 of India (1960) Automobiles Limited was transferred to I.A. Builders (P) Ltd. became passed became sanctioning a. Registered Indenture dated 12th March, 1965 by India virtue of which (1960) Automobiles Limited absolute owner. b. Order dated 16th May, 2005 Hon’ble High Court of Calcutta a Scheme of Arrangement where outgoing business India undertaking 1 of Automobiles (1960) Limited was transferred to I.A. Property Developers (P) Ltd. Indenture a. Registered dated 16th January, 1996 in favour Parmeswar Estates Private Limited. b. Name Change ROC D. Item D of Schedule A: 62-A, Hazara Road, Kolkata, Approx 122 Katha I.A. Builders (P) Ltd E. Item E of Schedule A: 2, Ripon Street, Kolkata (35,000 office sq.ft. block) I.A. Developers Ltd. Property (P) West Estates Pvt. Ltd. Wing F. Item F of Schedule A: Shop No. G-3C, Ground Floor, Shree Manjari Building Sir William Jones Sarani, Camac Street, Kolkata – 8/1A Signature Not Verified FAO(OS) 81/2025 Page 4 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09 700071 Showroom) (Airtel G. H. Item G of Schedule A: India Automobiles 1960 Ltd. 9, Old Post Office Street, opposite High Court Full Building India Automobiles (1960) Ltd. Item H of Schedule A: FMC Fortuna Plot No. 234/3A, 3rd Floor, AJC Bose Road, Kolkata 6000 sq.ft. area M/s. Banwari Lall Pasari [a registered partnership firm] I. Item I of Schedule A: Chirawa, Rajasthan, Villa Ancestral Property Owned jointly by three members of the Pasari family Rahul Pasari, Chandrakant Pasari and Sajjan Pasari Certificate of Parmeswar Estates Private Limited to West Wing Estates Pvt. Ltd. with effect from 16th November, 2011. a. Registered dated 5th June,1964 favour Automobiles (1960) Ltd. Indenture India a. Registered Indenture dated 5th February, 1997 in Flat A1 regard purchased directly by the said partnership firm. b. Registered Indenture dated 5th February, 1997 in regard Flat A2 purchased directly by the said partnership firm. Indenture c. Registered dated 5th February, 1997 in regard Flat A3 purchased directly by the said partnership firm. Also see: d. Deed of Reconstituted 25th Partnership May, 1999. e. Deed of Reconstituted Partnership dated 1st April, 2002. f. Deed of Reconstituted Partnership dated 1st April, 2013. g. Supplementary Deed of Partnership dated 1st April, 2015. Indenture a. Registered dated 13th October, 1958 executed favour of Gayatri Devi Pasari (wife of Late Purshottam Das Pasari brother of Banwari Lal Pasari. b. Probate dated 18th Signature Not Verified FAO(OS) 81/2025 Page 5 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09 December, 2009 granted this High Court of Calcutta. Originally, property was bequeathed to the Purushottam Das Shankar Lal HUF. 2006 c. By a Codicil dated 28th July, property was bequeathed to three members of the Pasari family being Rahul Pasari, Chandrakant Pasari and Sajjan Pasari and a fresh Probate thereof was granted on 24th November, 2022.

6. It was further submitted that late Shri Banwari Lal Pasari bequeathed the entire property in favour of Sajjan Pasari vide Will dated 04.05.1999, which was duly probated in proceedings being PLA No. 315/2000 instituted before the High Court of Calcutta. 7. Taking into account all these facts, it is contended that the learned Single Judge conclusion Plaintiff/Appellant has failed to make out a prima facie case in her favour and also lacks balance of convenience, and therefore, will not suffer any irreparable loss and injury in case the interim order dated

01.08.2022 is vacated. 8. Learned counsel representing the Appellant has made the following submissions in the present appeal: 8.1 Respondent No. 1/ Defendant No. 1 had no locus to seek vacation of interim order dated 01.08.2022 through an application under Order XXXIX Rule 4 read with Section 151 of the Code of Civil Procedure, 1908, as he was not an affected party.

8.2 The preservation of the suit property should be maintained during Signature Not Verified FAO(OS) 81/2025 Page 6 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09 the pendency of the suit, and hence, the learned Single Judge ought to have continued the interim stay granted vide Order dated

01.08.2022.

8.3 An application for recall of the Probate Order dated 15.09.2000 is pending before the High Court of Calcutta, and therefore, the learned Single Judge ought to have waited for the conclusion of the recall of Probate proceedings before vacating the injunction. 8.4 The Plaintiff/Appellant was not granted an adequate opportunity to examine the affidavit of Defendant No. 1/ Respondent No. 1 filed in his defence.

9. Per contra, the learned Senior Counsel for Respondent No. 1, while drawing our attention to the information compiled in the table extracted hereinbefore, submits that the Appellant has also filed an application for grant of injunction, while filing an application for recall of the Probate Order dated 15.09.2000. However, no injunction has been granted. 10. It is further contended that the prayer for vacation of stay was submitted by Respondent No. 1 before the learned Single Judge, as the continuation of the stay was adversely impacting him. He submits that the rights of Respondent No. 1 were prejudiced because of the said interim Order. 11. This Court has considered the submissions made on behalf of the parties. 12. We have had the benefit of the able assistance of the learned counsel representing the parties at length and, with their able assistance, also perused the paperbook. 13. It is evident from the tabulated information that late Shri Banwari Lal Pasari was not the owner of most of the suit properties on Signature Not Verified FAO(OS) 81/2025 Page 7 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09 the day of his death, and in any case, he bequeathed the property in favour of Sajjan Pasari/Respondent No. 1, which was later probated in his favour. The judgment passed by a Probate Court is a judgment in rem and not in personam. Even if the Appellant was not a party to the probate proceedings before the High Court of Calcutta, it is still binding on her unless it is recalled. 14. Before an injunction can be granted, the Appellant must establish the three well-settled tests: (i) a prima facie case in her favour, (ii) a balance of convenience in her favour, and (iii) that she will suffer irreparable loss and injury if the injunction is not granted at this stage. However, she has failed to make out a case for grant of injunction because as of now she neither has a prima facie case in her favour nor the balance of convenience lies in her favour. She would also not suffer any irreparable loss if injunction is not granted. 15. The Appellant further prays for restraining the Respondents from alienating the property in any manner. Section 52 of the Transfer of Property Act, 18821 protects the Appellant and encapsulates that any alienation of property during the pendency of the suit shall not affect her rights. 16. The sole Appellant is a married daughter of the testator, namely, late Shri Banwari Lal Pasari. To the best of the parties' knowledge, the second daughter has not filed any suit. Moreover, admittedly, there was only one property located within the jurisdiction of Delhi, which was sold by the parties including the Appellant, on 10.05.2022, that is, during the pendency of the suit. 17. Additionally, the Appellant has already applied for an interim order while filing an application for recall of probate in favour of Signature Not Verified FAO(OS) 81/2025 Page 8 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09 Respondent no. 1. The High Court of Calcutta has not granted any injunction in her favour. By way of a separate suit for partition, the Appellant seeks to achieve the same objective that has not been permitted by the learned Probate Court. 18. Concerning the last submission, it will be noticed that the affidavit of Defendant No. 1/Respondent No. 1 was served on the Appellant on 16.04.2025, whereas the impugned Judgement was passed on 14.05.2025; therefore, nearly one month was available to the Appellant to respond. In any case, the suit for partition filed by the Appellant is pending before the learned Single Judge, and Section 52 of the TP Act continues to be applicable, even after vacating the injunction order. 19. Hence, finding no merit, the present appeal alongwith pending application(s), if any, is dismissed. ANIL KSHETARPAL, J. JULY 24, 2025/v/er HARISH VAIDYANATHAN SHANKAR, J. 1 TP Act Signature Not Verified FAO(OS) 81/2025 Page 9 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:02.08.2025 17:05:09