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2023 DIGILAW 372 (UTT)

Madhu Bhushan v. Mohammad Mukeem Roshan

2023-06-19

MANOJ KUMAR TIWARI

body2023
JUDGMENT : 1. This is defendants’ appeal filed under Order 43 Rule (1)(r) read with Section 151 CPC challenging the order dated 10.09.2021 passed by learned Civil Judge (Senior Division), Dehradun, whereby temporary injunction application filed by plaintiff (respondent herein) was allowed. 2. This Court had earlier allowed the appeal, vide judgment dated 27.08.2022. Operative portion of the said judgment is extracted below:- “13. Accordingly, the Appeal is allowed, and the impugned order dated 10.09.2021 is set aside. The matter is remanded back to learned trial Court to reconsider and decide respondent’s temporary injunction application afresh, as per law, and after considering the material available on record. This Court has not expressed any opinion on the merits of the case, therefore, learned trial Court shall pass order afresh, uninfluenced by any observation made by this Court.” 3. Hon’ble Supreme Court has set aside the said judgment and remanded the matter back directing this Court “to take a call on the judgment passed by Trial Court, one way or the other instead of seeking to remit the matter”. 4. Heard learned counsel for the parties and perused the record. 5. Defendants (appellants herein) are wife and three sons of late Shashi Bhushan, who died on 20.04.2021; while, plaintiff/ respondent is not related to late Shashi Bhushan. 6. Upon death of Shashi Bhushan, respondent filed a suit for permanent injunction restraining the appellants from selling the immovable properties and withdrawing the movable properties, allegedly bequeathed to him by late Shashi Bhushan, through an unregistered Will dated 20.11.2020. By an amendment in the plaint, he also sought declaration that he is owner of the properties mentioned in the Will. 7. Plaintiff filed an application seeking temporary injunction; defendant nos. 3 & 4 denied execution of Will by late Shashi Bhushan, in their written statement. It was further pleaded in the written statement that late Shashi Bhushan was not the exclusive owner of the properties mentioned in the Will and he was not in fit condition to execute the Will due to prolonged illness as he was confined to bed since 2018 and had given mandate to his wife (appellant no. 1) to operate his bank accounts and to sign cheques on his behalf; the entire property is in possession of defendants, who are using and enjoying the same to the complete exclusion of others. 8. 1) to operate his bank accounts and to sign cheques on his behalf; the entire property is in possession of defendants, who are using and enjoying the same to the complete exclusion of others. 8. Plaintiff (respondent herein) had filed replication to the written statement of appellant nos. 3 & 4. 9. Learned Trial Court, vide order dated 10.09.2021 allowed the temporary injunction application filed by the plaintiff/respondent and restrained the parties from creating third party interest over the suit property and also restrained them from disposing of the movable property, during pendency of the suit. The said order granting temporary injunction in favour of respondent is put to challenge in this appeal. 10. Learned counsel for the appellants submits that plaintiff was not able to make out any prima facie case for grant of Temporary Injunction, yet learned Trial Court granted Temporary Injunction merely on the asking of the plaintiff, by overlooking the material on record. He submits that learned Trial Court has assumed the Will to be genuine, by ignoring the pleadings. He further submitted that after filing of the Written Statement, plaintiff/respondent had changed his stand in replication, which was sufficient to disbelieve plaintiffs’ case, however, learned Trial Court had put negative burden upon the defendants. 11. Learned counsel for appellants has drawn attention of this Court to the finding on prima facie case recorded by learned Trial Court in paragraph nos. 15 & 16 of the impugned order. English Translation whereof is given below:- “15. Copy of the alleged WILL dated 20.11.2020 is annexed as document no. 7C2/2 to 7C2/27 has been filed on filed on behalf of the plaintiff. From the said will, 1/5 share in each of the immovable property no. a, b, d and e as enumerated in para no. 1 of the plaint, entire properties enumerated in 1C and 20% of the movable properties enumerated in para no. 2 and 3 of the plaint prima facie appear to have been given by Late Sh. Shashi Bhushan to the plaintiff. As per the averments of the defendants the plaintiff has long standing relations with Late Shashi Bhushan and defendants’ family and allegedly, the plaintiff also got a map sanctioned for the defendants. The plaintiff was also pursuing property related and other cases of Late Shashi Bhushan. The witness to the will Mohd. Shashi Bhushan to the plaintiff. As per the averments of the defendants the plaintiff has long standing relations with Late Shashi Bhushan and defendants’ family and allegedly, the plaintiff also got a map sanctioned for the defendants. The plaintiff was also pursuing property related and other cases of Late Shashi Bhushan. The witness to the will Mohd. Aslam also kept visiting house of late Shashi Bhushan with him then at this stage only on the basis that WILL in question is not registered and the executant and the beneficiary are of different faith, the said will prima facie cannot be presumed to be forged or fabricated. So far as the question of these statements made by the defendant are concerned whether the alleged will dated 20.11.2020 is forged and fabricated, or is genuine, Late Shashi Bhushan was capable of executing will or not, then at this stage no final conclusion in this regard can be drawn and the decision on the question whether the alleged will is forged or genuine can be taken only after the conclusion of the evidence of both the parties. In the case of Anand Prasad Agrawalla Versus Tarkeshwar Prasad & its, 2001 0 Supreme (SC) 880 it has been laid down by the Hon’ble Supreme Court that it may not be appropriate for any Court to hold a mini trial at the stage of grant of temporary injunction. 16. So far as this averment of the defendant is concerned that Late Shashi Bhushan was not the sole owner of the property mentioned in the will, rather late Shashi Bhushan and the defendants were co-owners and were in joint possession, because of which Late Shashi Bhushan had no right to execute the said will and on the basis of the said will no injunction in respect of these properties can be granted in favour of the plaintiff. Prima facie on the basis of the will dated 20.11.2020 1/5 share in each of the immovable property no. a, b, d and e as enumerated in para no. 1 of the plaint, entire properties enumerated in 1C and 20% of the movable properties enumerated in para no. 2 and 3 of the plaint appears to be given to the plaintiff. Then in such circumstances the plaintiff has vested right in these properties mentioned in the will.” 12. a, b, d and e as enumerated in para no. 1 of the plaint, entire properties enumerated in 1C and 20% of the movable properties enumerated in para no. 2 and 3 of the plaint appears to be given to the plaintiff. Then in such circumstances the plaintiff has vested right in these properties mentioned in the will.” 12. Learned counsel for appellants submits that the plaintiff-respondent had made a bald statement that since he used to look after late Shashi Bhushan, therefore, he bequeathed 1/5th share in his property to plaintiff through Will, which was accepted by learned Trial Court as gospel truth by ignoring the pleading made in written statement. He refers to written statement for contending that late Shashi Bhushan was physically incapacitated due to diabetes and kidney failure, which had also resulted in virtual loss of vision and he was completely confined to bed since 2019 and had mandated his wife to operate his bank accounts. Thus, he submitted that the Will relied upon by plaintiff is forged and fabricated; however, learned Trial Court has accepted the claim made by appellant by accepting the Will to be genuine. He further contended that as per the contents of alleged Will, there are other beneficiaries also, however, only the plaintiff was informed about the Will by Mr. Mukesh Saklani, Advocate, through a registered letter dated 27.05.2021, which is sufficient to create a doubt. 13. Learned counsel for appellants contends that pleadings made in paragraph no. 5 of the written statement and its reply in paragraph no. 5 of replication, were not considered by learned Trial Court. In paragraph no. 5 of the written statement, it is stated that defendant no. 2 resigned from his job and permanently returned to Dehradun on 19.11.2020, and thereafter on 20.11.2020, as per wish of late Shashi Bhushan, birthday of his daughter-in-law (wife of defendant no. 2) was celebrated by the entire family and neither Shashi Bhushan left the house even for a moment on 20.11.2020 nor anyone from outside came to his house on the said day. Learned Senior Counsel thus submits that plaintiff’s averment regarding execution of Will on 20.11.2020 cannot be believed. 14. In reply to paragraph no. 5 of the written statement, plaintiff has pleaded in his replication that Shashi Bhushan visited District Court premises on 20.11.2020 and signed the Will in the presence of Advocate and witnesses. 15. Learned Senior Counsel thus submits that plaintiff’s averment regarding execution of Will on 20.11.2020 cannot be believed. 14. In reply to paragraph no. 5 of the written statement, plaintiff has pleaded in his replication that Shashi Bhushan visited District Court premises on 20.11.2020 and signed the Will in the presence of Advocate and witnesses. 15. He further submitted that late Shashi Bhushan owned several properties and he had fought more than hundred cases relating to his properties and in none of the cases, Mr. Mukesh Saklani, who is executor of the alleged Will, was engaged as his lawyer. He further submitted that if late Shashi Bhushan visited District Court campus on 20.11.2020 for execution of Will, then he could very well have got the Will registered, as the Will was also in respect of Bhumidhari land, for which registration of Will is mandatory as per Section 169 of Uttarakhand Zamindari Abolition and Land Reforms Act, 1950. He further contended that Shashi Bhushan was well versed with property laws, as he had handled property related disputes throughout his life. 16. Learned counsel for appellant thus had contended that plaintiff has set up a bogus case, based on an fabricated Will, and learned Trial Court erred in granting Temporary Injunction, without considering the material on record. He further submitted that finding on the relevant factors, namely, prima facie case, balance of convenience and irreparable injury, is cryptic and unsustainable. 17. Learned counsel for appellants further contended that before Hon’ble Supreme Court, plaintiff had claimed that 20% share in movable and immovable property was bequeathed to him by Shashi Bhushan, as he was his employee, which is contrary to the pleadings made in the plaint. Learned counsel for the appellant also referred to the documents submitted by defendants before the Trial Court in support of his contention that entire medical expenses of late Shashi Bhushan, were borne by the defendants. 18. Per contra, learned counsel for the plaintiff/respondent supportted the order of temporary injunction passed by learned Trial Court and submitted that family members of late Shashi Bhushan were not looking after him during his last days, and it was the plaintiff, who had taken care of late Shashi Bhushan during his last days and pleased by his services, late Shashi Bhushan executed Will bequeathing 1/5th share in his property to the plaintiff. He further submitted that besides the plaintiff, late Shashi Bhushan bequeathed certain properties to Mrs. Annu, Mrs. Savita Devi and Mrs. Bharti Raturi. He further submitted that mini trial is not to be held while considering temporary injunction application, and based on the material on record; learned Trial Court was justified in allowing temporary injunction application of the plaintiff. He further contended that the submission made on behalf of the appellants that order of temporary injunction was granted merely on the asking of the plaintiff, is incorrect and learned Trial Court considered all relevant aspects whiling passing the impugned order. 19. A person claiming property based on a Will is required to prove the Will in terms of Section 63(c) Succession Act, 1925 and Section 68 Evidence Act, 1872. Thus, burden of proving a Will by evidence is upon its propounder. However, in cases where validity of Will is challenged on the ground of fraud, coercion or undue influence, burden of proof would be on the caveator. 20. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 , Hon’ble Supreme Court held that propounder of a will must prove “(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and (iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.” Paragraph no. 20 of the said judgment is extracted below:- “20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.” Paragraph no. 20 of the said judgment is extracted below:- “20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.” 21. In the case of Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others, (2006) 13 SCC 433, Hon’ble Supreme Court has reiterated that burden of proof that the will is validly executed and is a genuine document is on the propounder. Paragraph nos. 33 & 34 of the said judgment, are reproduced below:- “33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. Paragraph nos. 33 & 34 of the said judgment, are reproduced below:- “33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai v. Tarabai Aba Shedage and Sridevi v. Jayaraja Shetty). Subject to above, proof of a will does not ordinarily differ from that of proving any other document. 34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances: (i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will; (ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit. (See H. Venkatachala Iyengar v. B.N. Thimmajamma and T.K. Ghosh's Academy v. T.C. Palit) 22. In the case of Jaswant Kaur v. Amrit Kaur and others, (1977) 1 SCC 369 , Hon’ble Supreme Court has held as under:- “9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. 10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma [ AIR 1959 SC 443 : 1959 Supp 1 SCR 426]. The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions : “1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.” 23. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.” 23. In the case of Bharpur Singh and others v. Shamsher Singh, (2009) 3 SCC 687 , Hon’ble Supreme Court has enumerated instances of suspicious circumstances surrounding execution of the Will. Paragraph nos. 23 & 24 of the said judgment are reproduced below:- “23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts. 24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.” 24. In the present case, defendants have denied execution of any Will by late Shashi Bhushan and have pleaded that the deceased was a family man, who was very much concerned about his property, and had fought more than 100 cases in different courts for protecting his properties and to ensure that his properties remain within the family. As per the stand taken in written statement, the day when the Will is alleged to be executed, birthday of daughter-in-law of late Shashi Bhushan was celebrated and no member of family, including Shashi Bhushan, went out of the house that day nor any outsider came to meet late Shashi Bhushan that day. 25. As per the stand taken in written statement, the day when the Will is alleged to be executed, birthday of daughter-in-law of late Shashi Bhushan was celebrated and no member of family, including Shashi Bhushan, went out of the house that day nor any outsider came to meet late Shashi Bhushan that day. 25. It is not in dispute that the plaintiff, who has claimed a share in the family property of Shashi Bhushan, is not related to the testator. According to him, he used to look after and take care of Shashi Bhushan during his last days, as his family members were residing at far off places. This averment is denied by the defendants, who assert that they were looking after Shashi Bhushan and they have also filed documents in support of their contention that they were paying medical bills/hospitalization charges of Shashi Bhushan. Thus, there are suspicious circumstances surrounding the very execution of the Will, which are yet to be cleared by the plaintiff by cogent evidence. 26. However, learned Trial Court has believed the Will to be genuine by observing that it cannot be presumed to be forged merely because the Will in question is unregistered and executor and beneficiary belong to different faith. Defendants’ stand that the Will relied by plaintiff is fabricated, is brushed aside by observing that no final conclusion in this regard can be drawn at this stage and decision on the question of validity of Will can be taken only after conclusion of evidence of the parties. Based on this finding, Trial Court held that plaintiff has a prima facie case. 27. This court finds substance in the contention made on behalf of the appellants that the initial burden of proof, which rests upon the party seeking temporary injunction is shifted to the defendants, without any valid reason. In fact, learned Trial Court has put negative burden upon defendants, that too, in respect of a Will which is shrouded with suspicious circumstances. 28. Learned counsel for plaintiff/respondent has relied upon the law laid down by Hon’ble Supreme Court in the case of Anand Prasad Agarwal v. Tarkeshwar Prasad and others, (2001) 5 SCC 568 , where it was held that it would not be appropriate for any court to hold a mini-trial at the stage of grant of temporary injunction. There cannot be any quarrel with the said proposition. There cannot be any quarrel with the said proposition. In the said case, the suit was filed based on a sale certificate issued by Bihar State Finance Corporation under provisions of State Finance Corporation Act, 1951. In that backdrop Hon’ble Supreme Court held that unless the sale certificate is set aside or declared to be a nullity, the same has legal validity and force and it cannot be said that no right could be derived from such certificate. Moreover, in that case, the party claiming injunction was in possession, as evidenced by the record of rights; therefore, it was held that his possession cannot be treated to be that of a trespasser. 29. Here the facts are entirely different. Plaintiff is relying upon a Will for seeking injunction against wife and sons of late Shashi Bhushan, who would succeed to the property, if plaintiff is not able to prove the Will. In view of the suspicious circumstances surrounding the Will, initial onus of proof upon the plaintiff would be heavy and unless it is satisfactorily discharged, it would not be proper to treat the document as the last Will of the testator. 30. The genuineness of the will can be ascertained during trial, after considering the evidence led by the parties, however, in a case like present one where there is serious dispute regarding execution of Will, no presumption can be drawn regarding its genuineness, as is done by learned Trial Court. 31. In the case of Dalpat Kumar and another v. Prahlad Singh and others, (1992) 1 SCC 719 , Hon’ble Supreme Court has restated the principles for grant of interim injunction. Paragraph no. 5 of the said judgment is reproduced below:- “5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 32. In the case of M. Gurudas and others v. Rasaranjan and others, (2006) 8 SCC 367 , Hon’ble Supreme Court has held that while considering an application for interim relief, besides other factors, Court should also consider whether the question sought to be tried is a serious question and not merely a triable issue. Paragraph no. 21 of the said judgment is reproduced below:- “21. Paragraph no. 21 of the said judgment is reproduced below:- “21. While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only amere triable issue. (See Dorab Cawasji Warden v. Coomi Sorab Warden [ (1990) 2 SCC 117 ], Dalpat Kumar v. Prahlad Singh [ (1992) 1 SCC 719 ], United Commercial Bank v. Bank of India [ (1981) 2 SCC 766 ], Gujarat Bottling Co. Ltd. v. Coca Cola Co. [ (1995) 5 SCC 545 ], Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev [ (1999) 5 SCC 222 ] and Transmission Corpn. of A.P. Ltd. [ (2006) 1 SCC 540 ] )” 33. In the case of Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727, Hon’ble Supreme Court has held that object of interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action, if the uncertainty were resolved in his favour at the trial. It is further held that need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated and further that the court must weigh one need against another and determine where the ‘balance of convenience’ lies. 34. In the case of Seema Arshad Zaheer & others v. Municipal Corporation of Greater Mumbai and others, (2006) 5 SCC 282 , Hon’ble Supreme Court has held that “where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is “no material”, or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse.” 35. Exercise of discretion by granting a temporary injunction when there is “no material”, or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse.” 35. Similarly in the case of Kashi Math Samsthan and another v. Shrimad Sudhindra Thirtha Swamy and another, (2010) 1 SCC 689 , Hon’ble Supreme Court has held that a party which seeks for grant of temporary injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury, if injunction is not granted to him. Paragraph no. 16 of the said judgment is reproduced below:- “16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court.” 36. In the case of Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira, (2012) 5 SCC 370 , Hon’ble Supreme Court has sounded a word of caution while dealing with real estate litigation. Paragraph nos. 81 to 86 of the said judgment are reproduced below:- “81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Paragraph nos. 81 to 86 of the said judgment are reproduced below:- “81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent. 82. This Court in a recent judgment in Ramrameshwari Devi [ (2011) 8 SCC 249 : (2011) 3 SCC (Cri) 481 : (2011) 4 SCC (Civ) 1] aptly observed at p. 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. The Court observed at pp. 267-68, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. 83. Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. 84. Due care, caution, diligence and attention must be bestowed by the judicial officers and Judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant. 84. In order to grant or refuse injunction, the judicial officer or the Judge must carefully examine the entire pleadings and documents with utmost care and seriousness. The safe and better course is to give a short notice on the injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex parte ad interim injunction. 85. The court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the court must take into consideration the pragmatic realities and pass proper order for mesne profits. The court must make serious endeavour to ensure that even-handed justice is given to both the parties. 86. Ordinarily, three main principles govern the grant or refusal of injunction: (a) prima facie case; (b) balance of convenience; and (c) irreparable injury; which guide the court in this regard. In the broad category of prima facie case, it is imperative for the court to carefully analyse the pleadings and the documents on record and only on that basis the court must be governed by the prima facie case. In grant and refusal of injunction, pleadings and documents play a vital role.” 37. The impugned order, when viewed in the light of the authoritative judicial pronouncements by Hon’ble Supreme Court, is unsustainable. Firstly, the finding on prima facie case recorded by learned Trial Court is not supported by any material on record and learned Trial Court has put negative burden upon the defendants to prove that the Will is not genuine. The impugned order, when viewed in the light of the authoritative judicial pronouncements by Hon’ble Supreme Court, is unsustainable. Firstly, the finding on prima facie case recorded by learned Trial Court is not supported by any material on record and learned Trial Court has put negative burden upon the defendants to prove that the Will is not genuine. On the question of balance of convenience, learned Trial Court has recorded a finding that if the defendants transfer the property, mentioned in the Will to other persons, then it will cause inconvenience to the plaintiff, and the purpose of filing the suit would be defeated. Thus, findings on both these aspects fall short of what is required for granting temporary injunction. 38. Even otherwise also, Section 52 of Transfer of Property Act takes care of the transfer pendente lite which appears to be overlooked by learned Trial Court. The issue of possession over the suit property was not gone into by learned Trial Court while recording finding on balance of convenience. Similarly, on irreparable injury, learned Trial Court has held that if the property mentioned in the Will is transferred by the defendants, it will cause irreparable injury to the plaintiff, however, there is no discussion as to how any transfer by the defendants will cause such injury, which cannot be compensated in terms of money. 39. In such view of the matter, the impugned order dated 10.09.2021 passed by learned Trial Court cannot be sustained in the eyes of law. 40. Accordingly, this Appeal from Order is allowed; the impugned order dated 10.09.2021 is set aside and the temporary injunction application filed by plaintiff-respondent is rejected. 41. However, it is made clear that observations made in this judgment are only for the purpose of deciding the temporary injunction application, which will have no bearing on the merits of the case, and learned Trial Court shall decide the suit on merits, untrammeled by any observation made in this judgment.