Legal Question in Wills and Trusts in
My father died on 1.2.1994. My brother filed probate case in 1999, in respect of only some properties on the basis of a forged Will, which I am contesting that Will is forged, which is still pending in court A. I filed suit for injunction in July, 2010, that brother may not siphon the assets of deceased and declaration that Will is nullity. This is pending in court B. Brother has contested this suit, interalia, that it is hit by order 10 of CPC.
My question: 1) Is our suit maintainable or time barred? 2) what are case laws in our favour?
Kumud
1 Answer from Attorneys
Your suit simpliciter for injunction is not maintainable. In my opinion, case law would be against you. section 10 CPC, however, may not even apply. First, probate case filed first in court A is not a suit. Secondly, the probate court A cannot grant the relief sought in court B. Therefore section 10 will not apply. Be as that it may, for second suit, you had to either ask for a declaration of title in your favour and as a consequential relief permanent injunction could have been asked for. See, if the probate case fails or the will is declared forged, then you will get share in the property by inheritance law. It is that declaration which you had to seek.
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