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2023 Supreme(Online)(UT) 3057
HIGH COURT OF UTTARAKHAND
Shri Justice Manoj Kumar Tiwari, J
Smt. Madhu Bhushan & others – Appellant
Versus
Mohammad Mukeem Roshan – Respondent
APPEAL FROM ORDER NO. 212 OF 2021
For the Appellants/Petitioners: Mr. Siddhartha Bhatnagar, Mr. Aditya Singh
For the Respondents: Mr. Kurban Ali
The propounder of a Will must prove its validity, especially in the presence of suspicious circumstances, and the principles for granting temporary injunction require a thoughtful assessment of prima facie cases, balance of convenience, and potential irreparable injury.
Headnote:(A) Civil Procedure Code, 1908 - Order 43 Rule 1(r) - Appeal against temporary injunction - The appellants challenged the grant of a temporary injunction by the trial court, claiming that the plaintiff failed to show a prima facie case. The trial court initially accepted the alleged Will as genuine without sufficient evidence and overlooked key facts including the absence of ownership and the health condition of the deceased at the time of execution. The Supreme Court remanded the matter for reconsideration, emphasizing the need for justice and proper evaluation of the circumstances surrounding the Will. (Paras 1-40)
(B) Burden of Proof - The burden lies on the propounder of the Will to prove its genuineness, especially where the execution is surrounded by suspicious circumstances. If a caveat is filed against the Will, the burden shifts to the caveator to prove their claim. (Paras 19-22)
(C) Principles for Granting Temporary Injunction - The court must consider the prima facie case, balance of convenience, and whether irreparable injury will result if an injunction is granted or denied. The lower court's finding on these principles was deemed cryptic and unsustainable.
| Table of Content |
|---|
| 1. appeal against temporary injunction granted. (Para 1 , 3 , 4) |
| 2. claim regarding alleged will and property ownership. (Para 5 , 6 , 10) |
| 3. burden of proof regarding will's validity. (Para 17 , 18 , 19 , 20) |
| 4. suspicious circumstances require strong proof of will. (Para 22 , 23 , 24) |
| 5. criteria for granting temporary injunctions. (Para 29 , 30 , 31) |
| 6. court's ruling on the temporary injunction. (Para 40 , 41) |
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
