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2023 DIGILAW 1019 (RAJ)

Bala v. Anita Agarwal

2023-05-04

NARENDRA SINGH DHADDHA

body2023
JUDGMENT 1. The aforesaid appeals have arisen from the order dated 21.02.2023 passed by the District Judge, Jhunjhunu (for short 'the trial Court') in Civil Misc. Temporary Injunction Application No.35/2022 titled as 'Smt. Anita Agarwal & Anr. Vs. Smt. Bala & Ors.' and in Civil Misc. Temporary Injunction Application No.05/2023 titled as 'Smt. Bala & Ors. Vs. Smt. Anita Agarwal & Anr.'. 2. Learned counsel for the appellants submits that the appellants had filed an application under Section 372 of the Indian Succession Act, 1925 for granting succession certificate and respondents had filed an application under Section 276 of Indian Succession Act for granting probate in which temporary injunction applications were filed by both the parties. The trial Court vide order dated 21.02.2023 had decided both the temporary injunction applications. Learned counsel for the appellants further submits that the learned trial Court wrongly came to the conclusion that both the parties had prima-facie case. Learned counsel for the appellants also submits that Dilip Kumar Chokhani (husband/father of the appellants) was doing business in the name of M/s Chokhani Gas Service, Nawalgarh in which Dilip Kumar Chokhani was a proprietor and his brothers Girdhari Lal and Jyoti Swaroop were helping him in doing business. Learned counsel for the appellants also submits that the respondents wrongly stated that the appellant No.1-Smt. Bala and Dilip Kumar Chokhani had no cordial relations and litigation was pending between them. Learned counsel for the appellants also submits that the trial Court in its order while considering the prima-facie case admitted the fact that the appellants were doing business after the death of Dilip Kumar Chokhani. Learned counsel for the appellants further submits that Dilip Kumar Chokhani had not executed any Will in favour of respondent No.1-Smt. Anita Agarwal and respondent No.2-Girdhari Lal Agarwal because said Will was challenged by the appellants before the trial Court and the trial Court had sent the said Will for FSL examination in which signature of Dilip Kumar Chokhani was found forged one, but the trial Court wrongly relied upon the private FSL report which was produced by respondents. Learned counsel for the appellants further submits that the trial Court while deciding the temporary injunction application, granted relief which was to be given at the time of final adjudication. Learned counsel for the appellants also submits that the respondents did not have prima-facie case. Learned counsel for the appellants further submits that the trial Court while deciding the temporary injunction application, granted relief which was to be given at the time of final adjudication. Learned counsel for the appellants also submits that the respondents did not have prima-facie case. So, order of the trial Court to the effect that the respondents would participate in the business as a partner and a joint account be opened in this regard may be set-aside. 3. Learned counsel for the appellants has placed reliance upon the following judgments'-(1) Rupali Mehta Vs. Smt. Tina Narinder Sain Mehta reported in 2006 (6) Mh.L.J.; (2) Suresh Sharma Vs. Dhanwanti Sharma in D. B. Special Appeal Writ No.548/2022 in S. B. Civil Writ Petition No.6089/2019 decided on 07.05.2022;(3) Ramchandra Ganpatrao Hande alias Handege Vs. Vithalrao Hande & Ors. in Appeal No.797 of 2010 decided on 29.03.2011. 4. Learned counsel for the respondents opposed the arguments advanced by learned counsel for the appellants and submitted that the trial Court rightly came to the conclusion that Will is forged one or not will be decided in the main application. Learned counsel for the respondents also submitted that the trial Court had not granted any relief which was to be granted at the time of final adjudication. Learned counsel for the respondents also submits that the trial Court rightly observed that both the parties had prima-facie case because appellants are claiming gas agency through inheritance and respondents are claiming gas agency on account of Will executed in favour of them. So, genuineness of the Will is required be proved in the main application. So, in the interest of Justice, it was necessary to allow participation of both the parties in the business, so consumers would not face any trouble. Learned counsel for the respondents also submitted that the order of the trial Court does not harm anyone. So, appeals being devoid of merit, are liable to be dismissed. 5. Learned counsel for the respondents has placed reliance upon the following judgment passed in the case of Atma Ram Vs. State Of Rajasthan (Criminal Miscellaneous Petition No.51/1998; decided on 20.01.1999). 6. I have considered the arguments advanced by learned counsel for the appellants as well as learned counsel for the respondents. 7. 5. Learned counsel for the respondents has placed reliance upon the following judgment passed in the case of Atma Ram Vs. State Of Rajasthan (Criminal Miscellaneous Petition No.51/1998; decided on 20.01.1999). 6. I have considered the arguments advanced by learned counsel for the appellants as well as learned counsel for the respondents. 7. Appellants had filed an application before the trial Court for granting succession certificate and respondents had filed an application for granting the probate on account of the Will executed in their favour by deceased-Dilip Kumar Chokhani. Both the parties had filed temporary injunction applications before the trial Court and the trial court had decided both the temporary injunction applications by the impugned order. The order of the trial court reads as under:- "(1) In the operation of M/s. Chokhani Gas Service, Nawalgarh, appellants and respondents shall act as partner thereof; (2) for this purpose of, they shall open a bank account in the name of Gas Service itself and the entire rendition of expenses, etc. shall be maintained; (3) The withdrawal of the amount from the said bank account would be under the signature of at least one of the persons from the side of the appellants and the respondents; (4) Four members/persons/partners as ordered on consent can take a fixed amount as the benefit of the said Gas Service; (5) Till the disposal of the application for probate and succession certificate, both the parties are restrained not to alienate and sell the properties of Gas Services and shall not act in the manner to affect the consumers of the Gas Service." 8. While deciding the applications, the trial Court decided the prima-facie case in favour of both the parties but it is an admitted position that after the death of Dilip Kumar Chokhani, appellants are doing business of M/s Chokhani Gas Service, Nawalgarh and they had executed indemnity bond in favour of Indian Oil Corporation. Respondents are seeking probate on account of Will executed by Dilip Kumar Chokhani in their favour. Thus, Will was sent for FSL by the trial Court. As per the FSL report, signature of Dilip Kumar Chokhani on the Will was found forged one but the trial Court wrongly considered the prima-facie case in favour of the respondents and allowed them to do business as a partner in M/s Chokhani Gas Service, Nawalgarh. Thus, Will was sent for FSL by the trial Court. As per the FSL report, signature of Dilip Kumar Chokhani on the Will was found forged one but the trial Court wrongly considered the prima-facie case in favour of the respondents and allowed them to do business as a partner in M/s Chokhani Gas Service, Nawalgarh. So, in my considered opinion, no occasion arises to allow the respondents to do business in the said firm as a partner. So, order of the trial Court suffers from infirmity and illegality and is liable to be set-aside. 9. Both the appeals filed by the appellants are allowed. Order of the trial Court dated 20.02.2023 is set-aside. Respondents shall neither create any hurdle in the business being run by the appellants nor would to transfer the gas agency to anyone. 10. Pending application(s), if any, stand(s) disposed of accordingly.