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RAJASTHAN HIGH COURT
Sandeep Mehta, J.
Ashok Kumar - Appellant
Versus
Vimal Kumar and others - Respondents
S.B. Civil Miscellaneous Appeal No. 814 of 2014
Decided On : 26-06-2014
TEMPORARY INJUNCTION - WILL - DISPUTE - PRIMA FACIE CASE - BALANCE OF CONVENIENCE - IRREPARABLE LOSS - HINDU SUCCESSION ACT - INDIAN SUCCESSION ACT - INTERPRETATION - APPLICATION.
Fact of the Case:
Plaintiff filed a suit for declaration, cancellation of will, and permanent injunction, claiming ownership of the suit property through a will executed in 1933 by Basanti Bai in favor of Dan Chand, plaintiff's grandfather. The defendants claimed ownership based on a subsequent will executed by Basanti Bai in 1991 in favor of their predecessors. The plaintiff sought a temporary injunction to restrain the defendants from alienating or altering the property. The trial court dismissed the application for temporary injunction, finding that the plaintiff failed to establish a prima facie case.
Finding of the Court:
The court held that the plaintiff failed to make out a prima facie case, balance of convenience, and irreparable loss to justify the grant of a temporary injunction. The court noted that the plaintiff did not fall within the Class I heirs of Dan Chand under the Hindu Succession Act, that the will of 1933 lapsed due to Dan Chand's death before Basanti Bai, and that the plaintiff's suit lacked a prayer for possession or declaration of title.
Issues: 1. Whether the plaintiff established a prima facie case for the grant of a temporary injunction? 2. Whether the balance of convenience and irreparable loss favored the grant of a temporary injunction?
Ratio Decidendi: 1. To obtain a temporary injunction, the plaintiff must establish a prima facie case, balance of convenience, and irreparable loss. 2. A prima facie case requires the plaintiff to show a likelihood of success on the merits of the case. 3. The balance of convenience weighs the potential harm to the plaintiff if the injunction is not granted against the potential harm to the defendant if the injunction is granted. 4. Irreparable loss refers to harm that cannot be adequately compensated by monetary damages.
Final Decision: The court dismissed the appeal, upholding the trial court's denial of the temporary injunction. The court found that the plaintiff failed to demonstrate a prima facie case, balance of convenience, or irreparable loss, and that the defendants had a stronger claim to the property based on the 1991 will.
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. 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 fr
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