The necessity of probating a will for filing a suit for specific performance of contract and the applicability of Section 41 of the Specific Relief Act.

1. The petitioner is defendant in O.S.No.2238 of 2006 on the file of the IV Asst. Judge, City Civil Court, Chennai. The respondent has filed the suit for permanent injunction against this petitioner restraining her from alienating the suit property to third parties. Pending the trial of the suit, the petitioner filed an application under Order 14 Rule 2 and Section 151 CPC to try the maintainability of the suit as preliminary issue and to dispose of the suit on the said issue.

2. In the affidavit, she has alleged that the suit property belongs to her, that she entered into an agreement of sale with the respondent on 25.07.2005 to sell her property, that the said agreement is not a concluded contract and that she got the property by means of a sale dated 17.12.1997 executed by her father which has to be probated and since no letters of administration was obtained, the agreement of sale is abandoned. The respondent/plaintiff agreed to receive the advance amount alone. Section 41, Specific Relief Act bars filing of the present suit. The plaintiff has to file the suit for specific performance and hence the preliminary issue is being raised to be tried. The respondent retained all original documents of title. This petitioner is ready to return the advance amount of Rs.10,00,000/-. The agreement is not enforceable in law. Hence, the Court may please to try the maintainability of the suit as preliminary issue and dispose the suit itself.

3. In the counter filed by the respondent, it is stated that on the date of agreement, the petitioner handed over all the original title deeds and also the registered will dated 17.12.1997 executed by her father for the purpose of obtaining probate from the High Court. The vendor has agreed to get probate of the will from the High Court in the agreement. Unless the will is probated, the title will be conferred on the petitioner. This respondent engaged a lawyer to get the will probated from the High court. The petitioner signed vakalat after the learned counsel for the respondent drafted necessary petitions for the letters of administration, obtained signatures of the petitioner in the petition and also got the signatures of attesting witnesses and filed the same into the court. This respondent paid necessary court fee and all the formalities for the probate OP was pursued by this respondent. It was numbered as OP No.788 of 2005. The petitioner never turned up to give evidence. The matter was adjourned time and again for the evidence of the petitioner and the Master posted the OP before Judge for disposal for non-compliance.

4. In addition to lawyers letters, the respondent personally approached the petitioner to give evidence but in vain. The petitioner was not inclined to complete the sale transaction. Unless the will is probated, this respondent cannot file the suit for specific performance of contract of sale and a suit for bare injunction was filed restraining the petitioner from alienating the property. This respondent has also filed a petition under Order 2 Rule 2 of CPC seeking permission of the Court to file a suit for specific performance after the will is probated. The said petition is pending. When such petition is filed, the petitioner cannot file the present petition. The respondent is always ready and willing to purchase the property after paying the balance sale consideration. The petition has been filed with malafide intention after a lapse of nearly one year. Hence, the petition may be dismissed.

5. After hearing both sides, the Court below has dismissed the application, observing that without the will being probated, the respondent could not file a suit for specific performance of contract and there is no wrong on her part in filing the suit for permanent injunction. This is the order challenged before this Court in this revision.

6. The suit property belonged to the petitioner by means of a will dated 08.01.1998 executed by her father late Vijayaraghavan. After his deat