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2014 DIGILAW 1277 (RAJ)

Ashok Kumar v. Vimal Kumar

2014-06-26

SANDEEP MEHTA

body2014
JUDGMENT : Sandeep Mehta, J. Heard learned counsel for the parties. Mr. S.L. Jain, learned counsel for the appellant, has moved an application for dispensing with the service of the respondents No. 13 to 46. By way of the application, it is claimed that the contesting parties are only the respondents No. 1 to 12, therefore, the service on the respondents No. 13 to 46 may be dispensed with. 2. Mr. Sajjan Singh has entered caveat on behalf of the respondents No. 1, 2, 3 & 9. 3. The instant appeal has been preferred by the appellant/plaintiff against the order dated 13.03.2014 passed by the learned Additional District Judge, Sujangarh in Civil Misc. Case No. 2/2014 whereby the application filed by the appellant/plaintiff under Order 39 Rule 1 and 2 CPC seeking temporary injunction was dismissed. 4. Facts in brief are that the plaintiff/appellant filed a suit for declaration, cancellation of will dated 10.07.1991 and permanent injunction in the Court of Additional District Judge, Sujangarh. An application under Order 39 Rules 1 & 2 CPC was also moved along with the suit seeking temporary injunction with the prayer to restrain the defendants from alienating, transferring the suit premises and from making alterations/raising construction therein. It was also prayed that the defendants be restrained from interfering in the right of the appellant and his family members to use and enjoy the suit property. 5. As per the facts set out in the plaint, the plaintiff/appellant and the defendants are the descendants of late Sh. Dan Chand and his sister Smt. Basanti Bai. It was averred in the plaint that Basanti Bai was married to one Ridhkaran Bohra resident of Sujangarh. Shri Ridhkaran Bohra was neither having any source of livelihood nor was he having any residence at Sujangarh and thus, Dan Chand used to provide assistance to his sister Basanti Bai. A property owned by Bhanwar Lal & Nathmal both sons of Inder Chand Oswal was mortgaged with Dan Chand and as the mortgage could not be redeemed, they decided to sell the property to pay the mortgage. Dan Chand wanted to provide a roof on the head of his sister and, therefore, he purchased the said property admeasuring 2556 sq. yards at Kothari Road, Kasba Sujangarh against the mortgage amount and constructed a single storied haveli thereupon. Dan Chand wanted to provide a roof on the head of his sister and, therefore, he purchased the said property admeasuring 2556 sq. yards at Kothari Road, Kasba Sujangarh against the mortgage amount and constructed a single storied haveli thereupon. The plot and haveli were procured for the sole benefit of Basanti Bai and, therefore, the title documents thereof were executed and registered in her name on 17.08.1928. It was further averred that the actual owner of the property was Dan Chand and Basanti Bai was residing therein as a trustee. 6. Smt. Basanti Bai executed a registered will in the office of Registrar of Calcutta on 29.05.1933 and bequeathed the property to Dan Chand. The will bore a recital that the property had been purchased by Dan Chand and the building thereon was also constructed by Dan Chand. It was further mentioned in the will that in the event of Basanti Bai passing away without any male heir, the property would devolve upon Dan Chand and his heirs. 7. The plaintiff claimed that he was the grand son of Dan Chand and upon the death of Dan Chand and Basanti Bai, Dan Chand's legal heirs became the owners of the property on the strength of the will. It was further averred that presently, Basanti Bai' successors Vimal Kumar and Kamla Devi were residing in the premises as licensees. As per the averments in the plaint, some portions of the property were in the possession of the plaintiff and his family member from the time of their grand father Dan Chand. The plaintiff claimed that he and the other successors of Dan Chand were living outside Rajasthan in the pursuit of their respective businesses and in their absence, the defendants started damaging the property in question and also started misappropriating the valuable articles lying therein. On coming to know of these illegal acts of the respondents, the plaintiff came to Sujangarh on 05.01.2014 and warned the defendants No. 1 & 2 to refrain from their nefarious activities. The defendants No. 1 & 2 paid no heed to this warning and declared that they would dismantle the haveli and construct a commercial complex on the land. 8. The defendants No. 1 & 2 paid no heed to this warning and declared that they would dismantle the haveli and construct a commercial complex on the land. 8. Faced with this situation, the plaintiff was left with no other option but to file a suit for permanent injunction in the Court of Civil Judge (J.D.), Sujangarh accompanied with an application for temporary injunction. 9. Upon the notices of the suit being issued, the defendants No. 1 & 2 appeared in the Court on 09.01.2014 and filed on record a copy of the will dated 10.07.1991 and a deed of partition along with the reply. At this stage, the plaintiff appellant realised that the defendants No. 1 and 2 had prepared a false and fraudulent will in order to deprive the plaintiff and his co-sharers of the suit property. As per the plaintiff, he was having no previous knowledge of the will dated 10.07.1991 and thus, he could not take any action in relation thereto at an earlier point of time. After coming to know of the will, the plaintiff realised that a suitable and appropriate relief could not be sought in the suit filed before the Civil Judge and thus, an application for withdrawal of the suit was filed and thereafter, the present suit was preferred in the court of Additional District Judge, Sujangarh. 10. It was averred in the plaint that the will dated 10.07.1991 which was filed by the defendants No. 1 & 2 in the Civil Court was forged and fraudulent. It bore the forged thumb impression of Basanti Bai. As per the plaintiff, the property in question was purchased exclusively from the income of Dan Chand. The registered will dated 29.05.1933 bequeathed the property to Dan Chand and his legal heirs and thus, the subsequent will on which the defendants relied was void, illegal and ineffective. Basanti Bai had a ready relinquished all rights over the property when she executed the registered will in favour of Dan Chand on 29.05.1933 and thereafter, she ceased to have any rights over the property and was thus not competent to execute any further will in relation to the same property. Basanti Bai was an educated woman and used to sign in Hindi. The will dated 29.05.1933 bore signatures of Basanti Bai, on the other hand, the will dated 10.07.1991 was having her thumb impressions. Basanti Bai was an educated woman and used to sign in Hindi. The will dated 29.05.1933 bore signatures of Basanti Bai, on the other hand, the will dated 10.07.1991 was having her thumb impressions. Basanti Bai was aged 93 years when she executed the will of 1991. She was suffering from paraplegia for the last about 10-15 years. She was almost comatose for the last two years before her death and thus, it was not possible for her to have executed the will in question. It was thus submitted that the will being forged and fabricated gave no rights to the defendants. 11. Almost similar averments were made i n the application for temporary injunction. 12. The defendants No. 1 to 3 appeared and filed a reply to the temporary injunction application. It was specifically pleaded in the reply that the defendants No. 1 to 12 are the first class legal heirs of Basanti Bai. The plaintiff and the proforma defendants were not the legal heirs of Basanti Bai. She will dated 29.05.1933 was not in relation to the suit premises and even if any such will existed, then too, in view of the fact that Basanti Bai executed two more wills first dated 19.02.1958 in favour of her two daughters. Kesar Devi @ Bhani Bai and Kamla Devi @ Suraj Devi and the second dated 10.07.1991 in favour of Umrao Singh, Dhanraj and Jaskaran sons of Kamla Devi, the earlier will dated 29.05.1933 became nonest. In pursuance of the last registered will dated 10.07.1991 and upon the death of Smt. Basanti Bai, Umrao Singh, Dhanraj and Jaskaran became the absolute owners of the suit premises. 13. The will dated 29.05.1933 became ineffective in view of the subsequent two registered wills. Rights under a will are created only on the death of testator and as Dan Chand, who was beneficiary of the will of 1933, expired much before the testator Smt. Basanti Bai, the said will would not create any rights in favour of Dan Chand or his legal heirs. The reply was supported by affidavits of the two witnesses who attested the will dated 10.07.1991. 14. It was submitted that the plaintiff filed a suit for injunction in the Court of Civil Judge, Sujangarh but when he failed to procure any order therein, the same was withdrawn. The defendants prayed that the application for temporary injunction be rejected. 15. The reply was supported by affidavits of the two witnesses who attested the will dated 10.07.1991. 14. It was submitted that the plaintiff filed a suit for injunction in the Court of Civil Judge, Sujangarh but when he failed to procure any order therein, the same was withdrawn. The defendants prayed that the application for temporary injunction be rejected. 15. The trial Court considered the arguments advanced on behalf of the parties and by a detailed order dated 13.03.2014 rejected the application for temporary injunction. Hence, this appeal. 16. Shri S.L. Jain, learned counsel for the appellant vehemently contended that the trial Court rejected the application for temporary injunction in a mechanical fashion and on an unjustified and* premature finding that the will of 1991 is genuine. As per him, at the stage of deciding the application for temporary injunction, any opinion regarding validity or otherwise of the disputed document was neither called for nor permissible. He urged that the will of 1933 is a registered document and was signed by Basanti Bai and thus, the same should be given precedence to the subsequent will of 1991 which bears thumb impressions of the testator. As per him, the sale document of 1928 and the will of 1933 bear specific recitals to the effect that the suit premises were purchased exclusively from the income of Dan Chand and as such, the only right which Basanti Bai acquired over the property was of usage and nothing beyond that. He vehemently contended that Basanti Bai was ill and ailing since last 10-15 years before her death and at the time of execution of the will of 1991, she was in a comatose condition and thus, the will is apparently forged. As per him, at the stage of considering an application for temporary injunction, the Court is only required to sec the existence of a prima facie case. He submitted that the specific pleading of the appellant in the plaint as well as the application for temporary injunction was that the will in question is forced and as long as the said issue is not decided, the property in question should not be permitted to be alienated and the nature thereof should not be permitted to be altered because it will give rise to further complications and will create third party rights. As per him, the existence of the registered will of 1933 in favour of the appellant's grand father Sh. Dan Chand is sufficient reason to assume the existence of a prima facie case in favour of the plaintiff and thus, he urged that it is a fit case for grant of temporary injunction in favour of the appellant. He relied on the following decisions in support of his contcntions :- (1) AIR 1959 SC 443 H. Venkatachala Iyengar, v. B.N. Thimmajamma and Ors. (2) AIR 1962 SC 567 Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another. (3) 1991 Civil Court Cases 99 (S.C.) : 1990(2) SCC 117 Dorab Cawasji Warden v. Coomi Sorab Warden and others. (4) 2005(1) Apex Court Judgments 457 (S.C.) : 2005(1) Civil Court Cases 430 (S.C.) : 2005(1) WLC (SC) 223 - Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass. 17. He. therefore, prayed that the impugned order deserves to be set aside and the defendants No. 1 to 3 be restrained from alienating or changing the nature of the property in question in any manner, till the decision of the suit. 18. Per contra, Sh. Sajjan Singh, learned counsel for the respondents No. 1, 2,3 & 9, contended that the registered sale deed dated 17.08.1928 which was executed in favour of Smt. Basanti Bai bears a recital to the effect that the purchaser paid total consideration to the sellers and that Basanti Bai was the absolute owner of the property after execution of the document. He submitted that the fact regarding Basanti Bai being the owner of the property cannot be challenged in light of the specific wordings of the sale deed. She earlier executed a will in favour of both her daughters Smt.Kesar Devi & Kamla Devi in the year 1958. Subsequently, the same property was bequeathed to the children of one of the daughters Smt. Kamla Devi only. It was urged that the will of 1933 became nonest upon the execution of the subsequent will. He further urged that even the will of 1933 which is relied upon by the plaintiff bears a specific recital to the effect that Basanti Bai is the absolutely owner of the property in question. He submitted that the will of 1991 is a registered document and cannot be questioned. He further urged that even the will of 1933 which is relied upon by the plaintiff bears a specific recital to the effect that Basanti Bai is the absolutely owner of the property in question. He submitted that the will of 1991 is a registered document and cannot be questioned. He further submitted that the possession of the premises in question is admittedly with the defendants No. 1 to 3. These defendants have already executed a registered partition deed setting out and demarcating the shares of the beneficiaries of the will of 1991 in the premises. The said partition deed has not been challenged by the plaintiff. The plaintiff has not claimed the relief of possession in the suit and in absence of such relief, he cannot plead the existence of a prima facie case in his favour. The suit having filed without any prayer for declaration of title and possession is by itself not maintainable. 19. He contended that the judgments which have been cited by the learned counsel for the appellant were passed at the stage of final decision and do not lay down any precedent or guidelines for deciding an application for temporary. He relied upon the decision of the Hon'ble Supreme Court in the case of Kashi Math Sansthan & Anr. v. Srimad Sudhindra Thirtha Snami & Anr. reported in 2010(1) Apex Court Judgments 358 (S.C.) : 2010(1) Civil Court Cases 791 (S.C.) : AIR 2010 SC 296 and contended that in absence of a prima facie case, the Court is precluded from passing an order of temporary injunction. He, therefore, urged that the plaintiff having failed to make out the requisite ingredients essential for passing of an order of temporary injunction i.e. prima facie case, balance of convenience and irreparable injury, was rightly denied the relief of temporary injunction and thus, the order impugned does not call for any interference. 20. Learned counsel for the appellant in rejoinder submitted that the relief of declaration has been sought in the plaint and thus, the consequential relief will follow as a consequence. He further urged that each and every fact need not be pleaded in the suit and certain facts which can be inferred from the pleadings can very well be appreciated by the Court even in the absence of a specific pleading. 21. He further urged that each and every fact need not be pleaded in the suit and certain facts which can be inferred from the pleadings can very well be appreciated by the Court even in the absence of a specific pleading. 21. Heard and considered the arguments advanced at the Bar and perused the impugned order as well as the copies of the pleadings placed on record by the learned counsel for the caveators. 22. Certain facts which have a material bearing on the controversy in issue are noted herein below for the sake of convenience:- The premises in question were purchased in the year 1928 through a registered sale deed executed by the owners of the property in favour of Smt. Basanti Bai. Copy of the registered dale deed placed on record by the learned counsel for the caveators bears a recital that the purchaser i.e. Basanti Bai paid full consideration to the sellers i.e. Bhanwar Lal and Nathmal. The will of 1933 bears a specific recital to the effect that Basanti Bai is the absolute owner of the property in question The plaintiff came with an admitted case in the plaint that the defendants No. 1 and 2 are in possession of the suit premises. Though as per him, they were using the same as licensees as being the legal heirs of Basanti Bai. The plaintiff tried to project in the plaint that the will was forged as the same bears thumb impressions of Basanti Bai and she was old and ailing and was suffering from paraplegia from the last 10-15 years before her death and was almost semi comatose for the last 2 years. As per the plaintiff, he and the proforma defendants live outside Rajasthan in relation to their respective businesses. In such situation, the plaintiff was required to disclose the source of knowledge about the alleged ailments and semi-comatose condition of Basanti Bai which was pleaded in para No. 16 of the plaint. The plaintiff did not make even a whisper of the averment as to how he came to know that Basanti Bai was suffering from paraplegia and was in a semi comatose condition at the time of execution of the will. Contrary thereto, the defendants have filed the affidavits of attesting witnesses of the will. The plaintiff did not make even a whisper of the averment as to how he came to know that Basanti Bai was suffering from paraplegia and was in a semi comatose condition at the time of execution of the will. Contrary thereto, the defendants have filed the affidavits of attesting witnesses of the will. The witnesses swore and verified in the affidavits that the will in question was executed by Basanti Bai at her house and before registration, the Tehsildar enquired from Basanti Bai as to whether she had got the will prepared voluntarily and desired to execute the same. The Tehsildar after receiving Basanti Bai's consent and affirmation, registered the will. It has been specifically pleaded in the reply to the temporary injunction application that Basanti Bai executed an earlier will in the year 1958 bequeathing equal shares of the property to both her daughters. The last will was executed by Smt. Basanti Bai in the year 1991 in favour of her maternal grand children viz., Umaro Singh, Dhanraj and Jaskaran, who are the sons of one of her daughters namely, Kamla Devi. The other daughter Kesar Devi and her children was not given any share from the property in this will. These defendants filed a reply to the temporary injunction application and supported the case set up by the beneficiaries of the will of 1991. 23. Even if it is assumed that by the will of 1933, the property was bequeathed to Dan Chand, then too the fact remains that the beneficiary Dan Chand expired much before the testator Basanti Bai. The rights of Dan Chand and his heirs over the property in question if at all in existence are governed by the provisions of Hindu Succession Act. As per the Schedule appended to Hindu Succession Act, the Class I heirs of a Hindu male are : "Son, daughter, widow, mother, son of a pre-deceased son, daughter of a predeceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter, widow of a pre-deceased son, son of a predeceased son of a pre-deceased son, daughter of a pre- deceased son of a pre deceased son, widow of a pre-deceased son of a predeceased son, son of a pre-deccased daughter of a pre-deceased daughter, daughter of a pre-deceased daughter of a pre deceased daughter, daughter of a pre-deceased daughter of a pre-deceased son." 24. Admittedly, Vijay Singh, the plaintiff's father, expired after Dan Chand. Thus, the plaintiff does not fall in any of the Class I heirs as set out in the Schedule which has been reproduced above. Consequently, the existence of inheritance rights flowing in the plaintiff's favour by the will of 1933 is prima facie doubtful. 25. As per Section 14 of the Hindu Succession Act, the property of a female Hindu is here absolutely property. As per Section 30 of the said Act, any Hindu is entitled to dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her. Thus, Basanti Bai being the absolute owner of the suit property had every right to bequeath it to anyone she desired during her life time. 26. Another provision which has material bearing on the controversy is Section 105 of the Indian Succession Act, which reads as below : "105. In what case legacy lapses. (1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the Will that the testator intended that it should go to some other person. (2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator. 27. A bare perusal of the above provision makes it abundantly clear that in order to entitle the legal heirs of Dan Chand to lay claim on the suit property on the strength of the will of 1933, they would be required to prove that the legatee i.e. Sh. Dan Chand survived the testator i.e. Smt. Basanti Bai. In the case at hand, the legatee Dan Chand admittedly expired much before the testator Basanti Bai. Thus, prima facie this provision creates a stumbling block in the plaintiff's path to lay claim over the suit property on the strength of the will of 1933. 28. As submitted by the learned counsel for the caveators, the plaint does not bear any prayer for possession or declaration of title over the property in question. This fact is verified upon perusal of the plaint. 29. 28. As submitted by the learned counsel for the caveators, the plaint does not bear any prayer for possession or declaration of title over the property in question. This fact is verified upon perusal of the plaint. 29. In view of the aforesaid factual scenario, it is apparent that the plaintiff failed to make out even a semblance of prima facie case in his favour so as to entitle him to an order of temporary injunction. The authorities cited by the learned counsel for the appellant deal with entirely different set of facts and circumstances and are thus, distinguishable and do not apply to the case at hand. The law is well settled that in absence of a prima facie case, the Court cannot grant an order of temporary injunction. 30. As an upshot of the above discussion, this Court is of the opinion that the trial Court was justified in holding that the appellant failed to make out the existence of prima-facie case, balance of convenience and irreparable loss so as to entitle him to a temporary injunction in relation to the suit property. The defendants on the other hand clearly proved and established that they have better claim to the suit property on the strength of the registered will executed in the year 1991 by the absolute owner of the property Smt. Basanti Bai. Consequently, this Court has no hesitation in holding that the trial court rightly rejected the temporary injunction application filed by the appellant/plaintiff. The order under Challenge does not suffer for many illegality, irregularity or perversity so as to call for any interference in the appeal. 31. Resultantly, the appeal being bereft of any merit, is hereby dismissed. Stay petition also stands dismissed. There shall be no order as to costs.