JUDGMENT : A.J. Desai, J. 1. With consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing because the pleadings are completed in the matter and the documents, which have been produced before the learned trial Court and other documents, which have been produced by appellant under Order XLI Rule 27 of the Code of Civil Procedure, 1704. 2. The brief facts arise from the record are as under: 2.1. One Harishankar Kunvarji Dave had died leaving behind him three sons and two daughters namely Dhanvantrai Harishankar Dave, Dinkarrai Harishankar Dave, Shankarlal Harishankar Dave and Jasuben G. Bhatt and Muktaben C. Pandya. Dhanvantrai Harishankar Dave and Dinkarrai Harishankar Dave were granted a piece of land on lease by Bhavnagar Municipality at Survey No. 2922, Ward No. 7 admeasuring 2061.32 sq. mtrs. by passing appropriate order on 17.01.1965 and the nature of the lease is perpetual. 2.2 Both the brothers constructed their independent houses on the said property in question. By a written family arrangement on 05.03.1975, they agreed to distribute the land among themeselves along with house. As per said family agreement between the brothers, they had mutually agreed that they would not have any right, title or interest with regard to the other part of the land and house constructed thereon. 2.3 Dhanvantrai died on 08.12.1975 and the name of his widow namely Kundanben was mutated in the record of City Survey of Bhavnagar Municipality. Dinkarrai also passed away on 23.08.1989 and name of his widow namely Shardaben was mutated in the record of City Survey, Bhavnagar Municipality with regard to the property in question. 2.4 Both the widows submitted an application on 09.11.1992 to the City Survey, Bhavnagar Municipality and requested that the entries may be made in the record of the City Survey about the family arrangement arrived at between the parties according to the application, out of 2061.32 sq. mtrs. of the land, Kundanben widow of Dhanvantrai got 1059.04 sq. mtrs. and also Shardaben, widow of Dinkarrai got the remaining piece of the land admeasuring 1002.28 sq. mtrs. and the entries accordingly mutated on 21.11.1992. 2.5 Dhanvantrai and Kundanben had not child out of their wedlock. However, Dinkarrai and Shardaben had three children namely Kiranbhai Dinkarrai Dave (now deceased), Druvbalaben wife of Dipakbhai Raval and Kirshoriben wife of Shaileshbhai Joshi. mtrs. and also Shardaben, widow of Dinkarrai got the remaining piece of the land admeasuring 1002.28 sq. mtrs. and the entries accordingly mutated on 21.11.1992. 2.5 Dhanvantrai and Kundanben had not child out of their wedlock. However, Dinkarrai and Shardaben had three children namely Kiranbhai Dinkarrai Dave (now deceased), Druvbalaben wife of Dipakbhai Raval and Kirshoriben wife of Shaileshbhai Joshi. The third brother Shankarlal Dave had four children namely Harpalbhai Shankarlal Dave (now deceased), Pramodbhai Shankarlal Dave (expired during pendency of the present proceedings), Vinaben Acharya and Varshaben Joshi. 2.6 Pramodbhai Shankarlal Dave was residing along with his family with Dhanvantrai and Kundanben in the house and using the portion of the land, which was granted in favour of the Dhanvantrai as per his family arrangement of 1975. Kundanben had executed a WILL on 30.07.2007 and the property was granted to son of Pramodbhai Dave i.e. Om Pramodbhai Dave, who was minor at that time. Pramodbhai Dave was appointed as executor of the WILL. Kundanben expired on 05.12.2006. 2.7 Subsequent to death of Kundanben Dhanvantrai Dave, Pramodbhai Dave son of Shankarlal, who was residing with Kundanben, produced a copy of the WILL before the authority for appropriate entries in the revenue record. The authority, after following the procedure, mutated the name of Pramodbhai Dave as a guardian of minor Om Dave in the record of City Survey. 2.8 Pramodbhai Dave filed an application in the Court of learned Additional District Judge, Bhavnagar being Misc. Civil Application No. 178 of 2010 under Section 31 read with Section 29 of the Guardian and Wards Act requesting the learned District Judge, Bhavnagar to permit him to sell the property in question since the same was bequeathed to his minor son. The said application was allowed by the District Judge, Bhavnagar on 25.01.2011 after following the procedure prescribed under the provisions of Guardian and Wards Act. 2.9 Though, the permission was granted by the District Court, Bhavnagar way back in the year 2011, Pramodbhai Dave did not sale the property in question. The said application was allowed by the District Judge, Bhavnagar on 25.01.2011 after following the procedure prescribed under the provisions of Guardian and Wards Act. 2.9 Though, the permission was granted by the District Court, Bhavnagar way back in the year 2011, Pramodbhai Dave did not sale the property in question. 2.10 Kiranbhai Dave, son of Dinkarrai Dave and Shardaben Dave filed the a suit being Special Civil Suit No. 43 of 2015 in the Court of learned Principal Civil Judge, Bhavnagar against Pramodbhai Dave and his son Om Dave, who had attained the age of majority before 2015 and challenged the validity of the WILL dated 30.07.2005 executed by Kundanben, by which the property was bequeathed to Minor Om Dave. It is further prayed in the suit that the defendants shall be permanently restrained from transferring the property (a piece of land admeasuring 1059.04 sq. mtrs.), which was bequeathed by Kundanben. 2.11 The plaintiff also filed an application under Order 39 Rule 1 and 2 of the Code of the Civil Procedure, 1908 and prayed for interim relief requesting the Court to grant stay against transfer of the property in question during pendency of the trial. 2.12 The defendants have appeared before the learned trial Court and filed written statement objecting grant of any relief as prayed for by the plaintiff. During pendency of the hearing of the proceedings before the trial Court, Kiranbhai - original plaintiff expired and therefore, his legal heirs have been brought on record. The learned 8th Additional Senior Civil Judge, Bhavnagar, by judgment and order dated 27.07.2016, rejected the application filed by the present plaintiff. 3. Hence, this appeal from order. 4. The respondents - original defendants have appeared and have filed affidavit-in-reply and an additional affidavit since my predecessor had an occasion to hear the matter for some time, had asked the parties to file such affidavit. 5. Mr. M.B. Gandhi, learned advocate appearing for the appellants-Original Plaintiffs, has vehemently submitted that the property in question was granted jointly by Bhavnagar Municipality only to Dhanvantrai Dave and Dinkarrai Dave and there was no right of Pramodbhai in the said property, who is nephew of allottees. He would further submit that Kundanben had no right over the property in question since the land was granted in the joint name of two brothers only. He would further submit that Kundanben had no right over the property in question since the land was granted in the joint name of two brothers only. He would further submit that in absence of any child to Dhanvantrai and Kundanben, the property in question would go to the legal heirs of Dinkarrai and Shardaben and thereafter, Kiranbhai being a son of Dinkarrai and Shardaben would have right over the property in question. 6. He would further submit that the appellants have challenged the WILL, which alleged to have been executed by Kundanben on the ground of fraud committed by all concerned. By taking me through, a xerox copy of the WILL executed by Kundanben, he would submit that the date of the WILL referred as 30.07.2005, whereas, the stamp, upon which the same is typed, is purchased on 04.08.2005. He would further submit that the Notary has registered the said WILL on 12.08.2005 at 1.30 p.m., which creates doubt about the existence of such WILL. He would further submit that the certificate issued by the Notary about issuance of WILL, which was notarized by him, a thumb impression of Kundanben is obtained, which is not required. He would submit that the same aspect was under consideration before the Coordinate Bench of this Court in a Writ Petition being Special Civil Application No. 7454 of 2010 filed by the present respondents, it has been observed by the Coordinate Bench of this Court in the oral judgment and order dated 28.09.2016, prima-facie, it appears that the WILL is doubtful and therefore, he would submit that when the WILL itself is under doubt, the Court would restrain the parties from transferring the property in question during pendency of the suit. 7. He would further submit that the respondents have produced a hand written WILL dated 30.07.2005, which does not bear any signature or thumb impression of the deceased Kundanben. However, the WILL, which was typed on the stamp paper of Rs. 100/-, reflects the thumb impression of the deceased Kundanben and two witnesses. However, the dates of the stamp paper etc. is different as submitted by him and therefore, the existence of the WILL, upon which the respondents have put heavy reliance, is suspicious and therefore, the respondents are required to be restrained from transferring the property in question during pendency of the suit. However, the dates of the stamp paper etc. is different as submitted by him and therefore, the existence of the WILL, upon which the respondents have put heavy reliance, is suspicious and therefore, the respondents are required to be restrained from transferring the property in question during pendency of the suit. In support of his submissions, he has relied upon the decision in case of Janki Narayan Bhoir V. Narayan Namdev Kadam reported in AIR 2003 SC 761 and would submit that mandatory provisions with regard to the WILL are not fulfilled, the WILL is required to be deprecated and therefore, when this aspect is yet to be considered by the learned trial Court, the parties must be restrained from dealing with the property in question, which is under challenge before the learned trial Court. He has also relied upon the decision in case of Joseph Antony Lazarus (D) by legal representatives V. A.J. Fancis reported in AIR 2006 SC 1895 and would submit that the WILL executed in suspicious circumstances, the genuineness of the WILL becomes doubt, which in the present case, the appellants are able to establish and therefore, the interim relief as prayed for is granted. 8. He would further submit that the Coordinate Bench of this Court, while issuance of notice, asked the parties to maintain status quo in respect of property in question and therefore, if the trial Court is directed to dispose of the suit in expeditious manner and further directed the parties to maintain status quo till the decision of the suit, there would be irreparable loss to the respondents - original defendants. 9. On the other hand, Mr. Anshin Desai learned Senior Advocate assisted by Ms. Venu Nanavaty learned advocate appearing for the respondents, by taking me through the plaint of the suit as well as the prayers made therein, would submit that the appellants - plaintiffs have not claimed any share in the property in question and have challenged only the WILL, which was executed by Kundanben way back in the year 2005. He would submit that the land admeasuring 2061.32 was granted by the Bhavnagar Municipality jointly in the name of Dhanvantrai and Dinkarrai in the year 1965. He would submit that the land admeasuring 2061.32 was granted by the Bhavnagar Municipality jointly in the name of Dhanvantrai and Dinkarrai in the year 1965. When both these brothers namely Dhanvantrai and Dinkarrai were alive, a family arrangement was arrived at between them on 05.03.1975 and they had agreed to divide the land, upon which, they had independently constructed their houses. By taking through the said family arrangement of 1975, he would submit that they have inter-se agreed for settlement by dividing the land into two parcels of land, upon which, the different houses were constructed. He would further submit that during the life time of the predecessor of the appellants namely Dinkarrai, who expired on 23.08.1989, never raised any objection with regard to the existence of family arrangement arrived at between the parties. The entry of Kundanben in the City Survey record was also not challenged by him. He would further submit that subsequent to death of Dinkarrai, both the widow namely Kundanben widow of Dhanvantrai and Shardaben widow of Dinkarrai filed an application jointly in the year 1992 to the City Survey Superintendent, Bhavnagar Municipality and requested to mutate their names as per the settlement arrived at between the brothers way back on 05.03.1975. According to the said application, their names were mutated in the record of City Survey, Bhavnagar. By taking me through the record of City Survey, Bhavngar, he would submit that two separate shares specifying the measurement of the land were mutated, wherein, share of land admeasuring 1002.28 sq. mtrs. was granted to the branch of Dinkarrai and rest of the land was granted to the Kundanben widow of Dhanvantrai and accordingly, entries were mutated in the record of City Survey, Bhavnagar. He would further submit that subsequent to the death of Kundanben, when the respondents approached the authority for mutating their names relying upon the WILL in existence, the authority issued notice under Section 135(d) of the Gujarat Land Revenue Code way back in the year 2007. Having received no objections from any of the parties including the present appellants, the entries were mutated. Accordingly, entry No. 2529 was certified on 18.05.2007, wherein, the name of Pramodbhai Shankarlal Dave, as guardian of minor Om Pramodbhai Dave was mutated with regard to the land 1059.04 sq. mtrs. Having received no objections from any of the parties including the present appellants, the entries were mutated. Accordingly, entry No. 2529 was certified on 18.05.2007, wherein, the name of Pramodbhai Shankarlal Dave, as guardian of minor Om Pramodbhai Dave was mutated with regard to the land 1059.04 sq. mtrs. He would further submit that this entry has never been challenged by the present appellants before the competent authority. He would further submit that the notice was issued to Shardaben, widow of Dinkarrai, who had not raised any objection with regard to the entry. He would further submit that even Shardaben has not challenged entry, which was mutated in the year 2007, who died on 30.10.2008. 10. As far as the WILL is concerned, he would submit that the WILL, which is produced before the Court as per the oral direction, was prepared by one of the witnesses on 30.07.2005. However, ultimately, it was typed on the stamp of Rs. 100/-, which was purchased on 04.08.2005 and got it executed on 11.08.2005. Through oversight and bona fide mistake, 30.07.2005 date has been typed on which the WILL was prepared. He would further submit that the WILL is a notarized WILL and the two witnesses have identified the thumb impression of the deceased Kundanben. He would further submit that those witnesses have filed affidavits before the trial Court in support of the WILL. He would further submit that the WILL was notarized before a Notary at Bhavnagar, who had issued a certificate. He would further submit that the affidavit has been filed by the Notary clarifying that the mistake has been committed about the writing correct facts. Instead of 1.30 p.m. he has stated 1.30 a.m. and has filed affidavit and has categorically stated that the thumb impression is of Kundanben on the WILL and the said thumb impression was applied by Kundanben in his presence and the WILL was attested by him. Dr. Rajiv Oza, Consultant Physician has put his signature on the WILL as well as the certificate issued by the notary about the notarization of the WILL. Dr. Rajiv Oza, Consultant Physician has put his signature on the WILL as well as the certificate issued by the notary about the notarization of the WILL. He would further submit that the observations made by the Coordinate Bench of this Court are tentative in nature and all these aspects were not brought to the notice of the learned Single Judge of the Coordinate Bench of this Court, who was dealing with the matter under the provisions of Payment of Gratuity Act. He would further submit that the dispute with regard to the gratuity issue has now settled since the respondents had paid the amount to the employee. 11. He would further submit that deceased Pramodbhai Dave and his family members were residing with Dhanvantrai and Kundanben for the entire life and had served them. He would further submit that after the death of Kundanben, when the needs arose for financial assistance to the family, an application was preferred before the competent District Court, Bhavnagar for transferring the property in question since the property was bequeathed to minor Om Dave, son of Pramodbhai Dave. The District Court, Bhavnagar after following the due procedure including the issuance of public notice in the newspaper and inviting the objections, permitted the respondents to sell the property in question way back in the year 2012. He would further submit that the appellants did not raised any objections before the District Court, Bhavnagar when the property in question was sought to be transferred. At no point of time, the objections were raised by the appellants. He would further submit that the suit has been filed with ulterior motive only after selling the property by the appellant/plaintiff, which was granted to Dinkarrai and Shardaben. By taking me through the sale deed executed by the appellants, he would submit that the property admeasuring 1002.28 sq. mtrs has been sold on 10.03.2015 and after selling their share, the present suit has been filed within a period of only three days i.e. on 13.03.2015. Therefore, the conduct of the appellants are required to be deprecated. He would further submit that one of the parties, who has acted upon the family arrangement, cannot claim any rights over the share of the other parties. In support of his submissions, he has relied upon the decision in case of Narendra Kante V. Anuradha Kante & Ors. Therefore, the conduct of the appellants are required to be deprecated. He would further submit that one of the parties, who has acted upon the family arrangement, cannot claim any rights over the share of the other parties. In support of his submissions, he has relied upon the decision in case of Narendra Kante V. Anuradha Kante & Ors. reported in (2010) 2 SCC 77 and would submit that it has been held by the Hon'ble Apex Court that if the family settlement is acted upon by one of the parties, he cannot challenge the validity of such settlement. He would submit that the settlement is also not challenged by them. By relying upon an unreported decision of this Court in case of Meman Mamad Haji Abdul Sakur V. Abdul Gafar Haji Abdul Sakur passed in Civil First Appeal No. 130 of 1977 dated 27.11.1992 and would submit that the trial Court has dealt with all the submissions, which have been made before this Court and has rejected the application filed by the present appellants under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908, which does not call for any interference of this Hon'ble Court. 12. He would further submit that since the appellants have sold the property known to Dinkarrai Dave, sisters of the deceased Kiranbhai Dave namely Kishoriben Shaileshbhai Joshi and Dhruvbalaben Dipakbhai Raval have filed Special Civil Suit No. 57 of 2015 in the Court of Principal Senior Civil Judge, Bhavnagar and have claimed their shares in the property belongs to their father Dinkarrai, which has been sold by the deceased Kiranbhai Dave. He would further submit that concerned Civil Court has restrained the respondents to that case from further transferring the property in question. He would submit that none of the branches of Harishankar Dave has claimed any right in the property in question. 13. I have heard learned advocates appearing for the respective parties and perused the documents. 14. It is an undisputed fact that Dhanvantrai Harishankar Dave and Dinkarrai Harishankar Dave were granted a piece of land on lease by the Bhavnagar Municipality at Survey No. 2922, Ward No. 7 admeasuring 2061.32 sq. mtrs. by passing appropriate order on 17.01.1965 and the nature of the lease is a perpetual one. Both the brothers namely Dhanvantrai and Dinkarrai constructed independent houses and started living with their family. mtrs. by passing appropriate order on 17.01.1965 and the nature of the lease is a perpetual one. Both the brothers namely Dhanvantrai and Dinkarrai constructed independent houses and started living with their family. Dhanvantrai and his wife Kundanben, having no child, started residing with their nephew namely Pramodbhai Dave whereas Dinkarrai started residing with his family members. When both the brothers were alive, a written family arrangement was made and they agreed that they shall not claim any right, title and interest over the part of the land, upon which, they have independently constructed the house. The said agreement has never been challenged either by Dinkarrai himself, who survived upto 1989 or Kundanben Dhanvantrai Dave, who survived upto 30.12.2006 or Shardaben Dinkarrai Dave, who survived upto 30.10.2008. Even subsequent to death of Shardaben Dinkarrai, till date the family arrangement is not challenged. 15. In the year 1992, Kundanben widow of Dhanvantrai and deceased Shardaben widow of Dinkarrai filed a joint application to the City Survey Superintendent, Bhavnagar to make entries in the record of City Survey about the family arrangement arrived at between the brothers way back in the year 1975. Accordingly, the entries were made and a piece of land admeasuring 1059.04 sq. mtrs was granted to deceased Kundanben widow of Dhanvantrai, whereas, rest of the land admeasuring 1002.28 sq. mtrs. was granted to Shardaben widow of Dinkarrai. Kundanben widow of Dhanvantrai having no child executed a WILL and bequeathed the property in question to minor Om Dave son of Pramodbhai Dave and appointed him as her heir. Pramodbhai Dave, being a nephew of Danvantrai and Kundanben, started living with family along with Dhanvantrai and Kundanben and served them and therefore, prima-facie, it appears that the property in question was bequeathed in favour of Om Dave, son of Pramodbhai Dave. It is pertinent to note that subsequent to death of Kundanben, when Pramodbhai Dave requested the concerned revenue authority to make entry in the revenue record as per the WILL, a notice under Section 135(D) of the Gujarat Land Revenue Code was issued to all concerned in the year 2007 including Shardaben widow of Dinkarrai Dave and deceased Kiranbhai Dave etc. but neither Shardaben widow of Dinkarrai nor Kundanben raised any objection about the notice. Subsequently the entry was mutated as per the WILL executed by deceased Kundanben widow of Dhanvantrai. 16. but neither Shardaben widow of Dinkarrai nor Kundanben raised any objection about the notice. Subsequently the entry was mutated as per the WILL executed by deceased Kundanben widow of Dhanvantrai. 16. It is also pertinent to note that when Pramodbhai Dave filed an application in the Court of learned District Judge, under the provisions of Guardian and Wards Act for selling the property. A public notice was issued with regard to the same. At that time also, the appellants/original plaintiffs have not raised any objections and have not claimed any right over the property in question. Ultimately, the District Court, Bhavnagar granted permission to sell the property way back in the year 2012. 17. As far as the arguments advanced by Mr. M.B. Gandhi, learned advocate appearing for the appellants about the validity of the WILL is concerned, I have perused a hand written WILL, prima-facie, it appears to have been prepared on 30.07.2005 and the same does not bear any thumb impression or signature of Executor of the WILL. The WILL, which has been typed on a stamp of Rs. 100/-, prima-facie, it appears to have been purchased on 04.08.2005, however, the same has been notarized on 11.08.2005. I have also perused the certificate issued by the Notary with affidavit in support of the notarized WILL and the affidavits of the witnesses of the WILL, which have been supported the case. 18. Considering the above fact that when the family arrangement has been acted upon by the brothers way back in the year 1975 and acted upon by all the parties and has never been challenged and the revenue record so far produced on record as well as the permission granted by the District Judge, Bhavnagar for selling the property and considering the fact that the appellants have sold the property in question just three days prior to filing of the suit and when they themselves are not claiming the rights over the property in question pursuant to the family arrangement as well as also considering the decision in case of Narendra Kante V. Anuradha Kante & Ors. reported in (2010) 2 SCC 77 and the decision in case of Meman Mamad Haji Abdul Sakur (supra), I am of the opinion that the trial Court has not committed any error in refusing the interim relief by the impugned order dated 27.7.2016 passed in Special Civil Suit No. 43 of 2015 by learned 8th Additional Senior Civil Judge, Bhavnagar. Hence, the present appeal from order is hereby dismissed. Interim relief granted earlier stands vacated. 19. Request made by the learned advocates appearing for the appellant to stay the order is hereby refused. 20. In view of the order passed in Appeal from Order, the present civil application does not survive and accordingly stands disposed of. Disposed off