The main legal point established in the judgment is the importance of disclosing a cause of action for the reliefs claimed, the significance of territorial jurisdiction in property disputes, and the limitations imposed by the Specific Relief Act on seeking the relief of permanent injunction.

Rajiv Sahai Endlaw, J.

1. The defendants No. 1 and 2 have filed this application under Order 7 Rule 11 CPC for rejection of the plaint as premature and not disclosing any cause of action and on the ground of claim therein being barred by the Benami Transactions (Prohibition) Act. Vide order dated 2nd May, 2007, the plaintiff was also called upon to satisfy on the territorial jurisdiction of this Court to entertain the suit.

2. One Shri Ashok Malik was the father of the plaintiff and the defendant No. 2 and the husband of the defendant No. 1. Shri Ashok Malik died on 4th January, 2003. It is the case of the plaintiff that Shri Ashok Malik has left a Will dated 29th October, 2002 of which probate has been applied for by its executor before this Court and is pending as Testamentary Case No. 3/2006. It is the case of the defendants No. 1 and 2 that the said Shri Ashok Malik left a Will dated 28th February, 1998 and they have applied for probate of the same in the courts at Chandigarh. The plaintiff has instituted the present suit (a) for declaration that the agricultural land situated at Rajasthan and Haryana and the flat at Belvedere Tower, DLF City Phase II, Gurgaon are the properties of Shri Ashok Malik and the plaintiff alone is entitled to the said properties in accordance with the Will dated 29th October, 2002; (b) for further declaration that in terms of the said Will, the defendants do not have any share in the aforesaid properties; (c) for declaration that certain other properties in Gurgaon and Rohtak, which the defendant No. 1 has got transferred to her name on the basis of the Will set up by the defendant No. 1, is bad and; (d) for further declaration that certain other properties again at Haryana in the joint names of Shri Ashok Malik and the defendant No. 1 or in the sole name of the defendant No. 1 are, in fact, the properties of Shri Ashok Malik only and in terms of the will dated 29th October, 2002 of Shri Ashok Malik the plaintiff alone is entitled to the said properties; (e) for permanent injunction restraining the defendants from dealing with the said properties.

3. The counsel for defendants No. 1 and 2 has argued that all the immovable properties with respect to which declaration is claimed are situated outside the territorial jurisdiction of this Court; Under Section 16(d) of the CPC the suit for determination of any right or interest in immovable property can be filed only in the court within whose jurisdiction the property is situated. It is further urged that in the present case all the parties also are outside the jurisdiction of this Court. Reliance was also placed on Harshad Chiman Lal Modi v. DLF Universal Ltd. AIR 2005 SC 4446 to canvass that the bar of territorial jurisdiction is statutory bar within the meaning of Order 7 Rule 11(d) CPC

4. The counsel for defendants No. 1 and 2 relied upon Ram Shankar v. Balakdas AIR 1992 MP 224 to contend that the jurisdiction of civil court to adjudicate on validity of Will is barred owning to the exclusive jurisdiction of the Probate court. Reliance is further placed on Smt. Rukmani Devi and Ors. v. Narendra Lal Gupta AIR 1984 SC 1866 ; Rukn-ul-Mulk S. Abdul Wajid and Ors. v. Mrs. Gajambal Ramalingam and Ors. AIR 1950 Mys 57 and Alagammai and Ors. v. V. Rakkammal AIR 1992 Mad 136 to urge that the judgment of the probate court would be a judgment in rem and would have binding effect as it is the probate court alone which can go into the question of the validity of the Will. It was urged that the plaintiff, till the probate of the Will on the basis of which title to properties is claimed had no legal character within the meaning of Section 34 of the Specific Relief Act and of which declaration could be claimed.

5. The defendants/applicants also urged that the reliefs that properties in the name of defendant No. 1 or in the joint names of defendant No. 1 and her deceased husband (father of plaintiff and defendant No. 2) were the properties of deceased onl