Point of Law: No petition for probate filed under Section 276 of the Act. In the absence of any such petition, the court below cannot invoke the provisions under Section 295 of the Act.

JUDGMENT :

ANIL K. NARENDRAN, J.

1. The appellant is the 3rd respondent in Probate O.P. (Caveat) No. 28 of 2017 on the file of the District Court, Kozhikode, filed by the 1st respondent herein, under Section 284 of the Indian Succession Act, 1925 and I.A. No. 309 of 2017 filed in that Probate O.P. (Caveat) under Sections 268 and 269 of the said Act, read with Order XXXIX Rule 1 and Section 94 of the Code of Civil Procedure, 1908. In I.A. No. 309 of 2017, the 1st respondent sought for an interim injunction against the respondents therein, restraining and preventing them from alienating, converting, transferring or dealing with any of the rights, title or interests of the parties over all or any one of the items of properties described in the petition schedule or creating any adverse third party interest, transferring any shares held in M/s. Malabar Produce and Rubber Company Ltd.

2. The 1st respondent herein is the eldest daughter of an Indian Christian couple, late M.O. Thomas and late Jolly Thomas. The 2nd respondent herein is the second eldest son, the 3rd respondent herein is the younger son and respondents 4 to 6 herein are the children of the 2nd respondent herein. The 7th respondent is the son of the 3rd respondent herein and the 8th respondent is the daughter of the 1st respondent herein. The appellant herein, who was arrayed as the 3rd respondent in I.A. No. 309 of 2017 and in Probate O.P. (Caveat) No. 28 of 2017, is the executor appointed in a registered Will bearing No. 111/2004 dated 31.08.2004 of the Sub Registrar Office, Kozhikode, stated to have been executed by Jolly Thomas. M.O. Thomas died intestate, on 23.09.1972, at Velloor Medical College, and his estate vested with his spouse and children. Later, Jolly Thomas died on 16.12.2016.

3. The 1st respondent herein filed O.P. (Caveat) No. 28 of 2017 before the District Court, Kozhikode, anticipating the institution of testamentary proceedings in respect of the Will executed by Late Jolly Thomas, bearing document No. 111/2004 dated 31.08.2004 of the Sub Registrar Office, Kozhikode. In the affidavit filed in support of I.A. No. 309 of 2017, an application filed under Sections 268 and 269 of the Act, read with Order XXXIX, Rule 1 of the Civil Procedure Code, it is alleged that after the death of Jolly Thomas, in a joint meeting of the siblings, a copy of Will executed by the mother was presented. The 1st respondent is not aware of the authenticity or veracity of the Will. The properties described in the Will are mostly that owned by M/s. Malabar Produce and Rubber Company Limited. The appellant herein, a stranger to the family, has been appointed as the executor of the Will and named as legatee. It was in such circumstances, the 1st respondent herein filed Probate O.P. (Caveat) No. 28 of 2017 and also the interlocutory application, i.e. I.A. No. 309 of 2017, under Section 269 of the Act, seeking an interim injunction.

4. The court below granted interim injunction in I.A. No. 309 of 2017 in Probate O.P. (Caveat) No. 28 of 2017. Before the court below, it was pointed out that the properties described in the Will executed by Late Jolly Thomas on 31.08.2004 are mostly owned by M/s. Malabar Produce and Rubbers Company Ltd. which is a company incorporated under the Companies Act, 1956. In the counter statement filed by the appellant herein, it was contended that a petition for interim injunction without the said company in the party array is not maintainable in law.

5. After considering the rival contentions, the court below found that the 1st respondent herein could not prove a prima-facie case and that, no irreparable injury will be caused to her if the interim injunction sought for is not granted. The court below has also noticed the filing of O.S. No. 40 of 2018 by the 4th respondent before the Sub Court, Kozhikode, on the strength of a Will stated to have been executed by Jolly Thomas on 17.07.2016. Therefore, by the order dated 23.05.2018, the court below vacated the inter