Order On Board

03.02.2023

1. The appeal is preferred against order dated 17.5.2022 passed by Fourth Upper District Judge, Raipur in Civil Suit No.29A/2022, whereby application filed by the respondents/plaintiffs under Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure (for short the ‘CPC’) was allowed and the appellants/defendants were restrained from transferring or alienating the subject property.

2. Factual matrix of the case, as projected by the respondents/plaintiffs, is that before the trial Court they filed a civil suit for declaration and injunction stating therein that appellant No.1 is the father of appellant No.2, respondents 1 & 2 and Late Smt. Shashi Agrawal was their mother, who died on

15.3.2018. Late Smt. Shashi Agrawal was the recorded owner of House No.B-51, double storey building of Wallfort City; Shop Nos.7 & 9 situated at Tatiband Road, near Vegetable market; piece of land situated at Tatiband Patwari Halka No.0.24, Khasra No.250, 251/1(251/2) area 0.101 hectare and piece of land situated at Village Sakari, Patwari Halka No.41, Khasra No.301/2 area 0.046 hectare. Being daughters of Late Smt. Shashi Agrawal, the respondents/plaintiffs are the successors of her property, but on the basis of false and fabricated Will deed dated 10.3.2017, appellant No.1/ defendant No.1 got mutated the aforesaid properties in his name and thereafter he executed a Gift deed dated 02.8.2021 in respect of Khasra No.250 & 251/2 area 0.101 hectare in favour of appellant No.2/ defendant No.2 and therefore, the respondents/plaintiffs have filed civil suit for declaration of Will deed dated 10.3.2017 and Gift deed dated 02.8.2021 null and void and also for permanent injunction to restrain them from alienation of the subject property. They also filed application under Order 39 Rule 1 & 2 of the CPC, which was allowed in favour of the respondents/plaintiffs as mentioned in the opening paragraph of the impugned ordeer.

3. In reply, the appellants/defendants have taken a defence that the subject property in respect of which Will has been executed by Late Smt. Shashi Agrawal was purchased by appellant No.1 to secure the life of his wife Smt. Shashi Agrawal, but since, she was suffering from various ailments, she herself in the presence of other family members including the respondents/ plaintiffs, has stated that she is going to execute a Will in respect of movable and immovable property in favour of her husband Satanand Agrawal (appellant No.1) as after marriage, their children were living separately. It is further stated that while execution of the Will, she was mentally fit and the Will was executed before the witnesses which has also been got registered. Being father, appellant No.1 has executed a Gift deed in favour of appellant No.2 in respect of some part of the subject property. Therefore, appellant No.1 cannot be deprived from use of subject property.

4. The learned trial Court after hearing both the parties, allowed the injunction application filed by the respondents/ plaintiffs and restrained the appellants/defendants from transfer or alienation of subject property till disposal of the case.

5. Learned counsel for the appellants would submit that being husband, appellant No.1 had purchased the property to secure the life of his wife Shashi Agrawal. She was the house wife and was not having any source of income. Hence, the property was purchased by appellant No.1/defendant No.1 in her name. It is further submitted that they got married all their children and thereafter the husband and the wife were residing together. Since Smt. Shashi Agrawal was suffering from various ailments, therefore, she executed a Will deed on 10.3.2017 in favour of appellant No.1/husband. Pursuant to that Will deed, which was later on got registered as per Section 40(1) of the Registration Act, 1908, the property got mutated in his name. It is further stated that being father, appellant No.1 gifted a piece of land bearing Khasra No.250 &