IMPORTANT POINTS
(1) Registered Will – There is no statutory requirement that Will must be registered within lifetime of testator – Registration of Will is not even mandatory under Indian law – What is material for Will is its valid execution and attestation.
(2) Injunction – Injunction should not be granted against a co-sharer, except in exceptional cases, and especially not when issue of relationship and legitimacy itself is partly contested between parties.

JUDGMENT (CAV)

Ramachandra D. Huddar.—These three Miscellaneous First Appeals are filed by defendant Nos. 1 and 2 in O.S.No. 135/2021 on the file of Senior Civil Judge and J.M.F.C, at Sira under Order XXXIX Rule 1 (A) of Code of Civil Procedure (for short, “CPC), being aggrieved by the common order dated 08.04.2025 passed by the said Court. These appeals concern three interlocutory applications - I.A.No.3 filed by the defendants, seeking to restrain the plaintiff from interfering with his fencing activity on the suit schedule property and I.A.Nos.4 and 5 are filed by the respondent/plaintiff seeking injuctive relief’s against the appellants. By the impugned common order, the Trial Court dismissed the appellant’s application and allowed those applications filed by the plaintiff, directing the parties to maintain status quo, while also granting liberty to the plaintiff to erect fencing.

2. The parties to this appeal are referred to as per their rank before the Trial Court for convenience.

3. The facts so narrated by the appellant in brief are as under:

The plaintiff claims to be the daughter of one late Sri.K.Vishwanatha, allegedly born through his first wife Smt.Lakshmidevamma. It is further claimed that, defendant Nos. 3 to 7 in the suit are her siblings, all are children of the said Vishwanatha and Lakshmidevamma. According to the plaintiff, the suit schedule properties are the joint family ancestral properties and she is entitled to a share by birth therein. She asserts that, the properties remain undivided and are jointly possessed by the members of the family. Thus, she filed a suit against the defendants seeking the relief of properties and separate possession of the suit schedule properties by metes and bounds.

4. Before the Learned Trial Court, the appellant/defendant appeared and it is defendant No. 2 disputes the very relationship of the plaintiff with late Sri.K.Vishwanatha. According to the defendant, Smt.Lakshmidevamma was never the legally wedded wife of Vishwanatha, but merely a caretaker. He contends that he is the only son and legal heir of Sri.Vishwanatha, born to his lawful wife, i.e., Smt.Devamma (now deceased). It is a specific case of the appellants that, the suit schedule properties are not ancestral in nature, but were originally self-acquired by one Sri.Kadurappa (father of K.Vishwanatha), who executed a registered Will dated 15.11.1982 in favour of his son. Later, on 02.05.2018 the said Vishwanatha is said to have executed a registered Will bequeathing all his properties in favour of the defendant. The said Will was presented for registration and it was registered posthumously on 15.02.2019, following the death of Vishwanatha on 16.07.2018.

5. The records of this case do reveal that, a dispute arose regarding possession and enjoyment of the properties. During the pendency of the suit, as stated above, the defendant filed I.A.No.3 under Order XXXIX Rule 1(A) read with Section 151 of CPC, seeking temporary injunction against the plaintiff, praying that, she be restrained from obstructing the fencing of the schedule properties. The defendant contended that, when the fencing was necessary to prevent encroachment by third parties and was not intended to disturb possession or alter the character of the land.

6. Simultaneously, the plaintiff also filed I.A.Nos.4 and 5 under Order XXXIX Rule 1 and 2 of CPC seeking injunction against the present appellant/defendant No. 2 restraining him from interfering with her alleged joint possession and from obstructing her right to erect fencing around Item Nos. 1 to 3 of the suit schedule properties.

7. In support of her application, the plaintiff produced the photographs, school certificates, ration cards, obsequies invitation cards and other documents to show her relationship with late. Vishwanatha and to establish a prima facie case for claiming the relief so claimed in her application.

8. The present appellant/defendant No.2 opposed these applications reiterating that,