Genuineness of the will to be ascertained at trial; burden of proof on propounder; caution in real estate litigation.

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. 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