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UTTARAKHAND HIGH COURT
Manoj Kumar Tiwari, J.
Madhu Bhushan and Ors. – Appellants
versus
Mohammad Mukeem Roshan – Respondent
Appeal From Order No.212 of 2021
Decided on 19.6.2023
(A) Injunction – Grant of Temporary injunction – Finding on prima facie case recorded by Trial Court is not supported by any material on record and Trial Court has put negative burden upon defendants to prove that Will is not genuine – Section 52 of Transfer of Property Act takes care of transfer pendente lite which appears to be overlooked by Trial Court – Issue of possession over suit property was not gone into by Trial Court while recording finding on balance of convenience – Similarly, on irreparable injury, Trial Court held that if property mentioned in Will is transferred by defendants, it will cause irreparable injury to plaintiff, however, there is no discussion as to how any transfer by defendants will cause such injury, which cannot be compensated in terms of money – Impugned order passed by Trial Court set aside and temporary injunction application filed by plaintiff-respondent rejected. (Paras 37, 38, 39 and 40)
(B) Indian Succession Act, 1925 – Section 63(c) – Indian Evidence Act, 1872 – Section 68 – Proof of execution of Will – Where Will is challenged on the ground of fraud, coercion or undue influence, burden of proof would be on Caveator – Genuineness of Will can be ascertained during trial, after considering evidence led by parties – However, in a case where there is serious dispute regarding execution of Will, no presumption can be drawn regarding its genuineness. (Paras 19 and 30)
Result: Appeal From Order allowed.
JUDGMENT
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
Proof of execution of Will – In a case where there is serious dispute regarding execution of Will, no presumption can be drawn regarding its genuineness.
The main legal point established in the judgment is that the validity of a property transaction during the pendency of a suit is subject to the outcome of the suit, and the Court may grant injunction....
To obtain a temporary injunction, a plaintiff must demonstrate a prima facie case, balance of convenience, and potential for irreparable harm, without conducting a mini trial.
The Court's discretion in granting or refusing injunction is within its sole jurisdiction, and the appellate Court should not interfere unless the discretion exercised by the Court below was arbitrar....
A Plaintiff can seek a permanent injunction based on possession, even if deriving rights from a disputed Will, as long as the evidence supports their claim and initial possessory rights are establish....
The main legal point established in the judgment is the significance of prima facie case, irreparable injury, and balance of convenience in deciding on temporary injunction. The judgment also highlig....
A decree would be binding on the parties to the suit and not on third party.
The appellate court must respect the trial court's discretion in granting injunctions unless shown to be arbitrary or perverse.
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