Rajasthan High Court - Jaipur
Dr. Param Navdeep Singh W/O Navdeep ... vs Dr. Mukhtyar Singh Sidhu S/O Late ... on 4 February, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1974/2021
Dr. Param Navdeep Singh W/o Navdeep Singh D/o Late Surjeet
Singh
----Appellant
Versus
Dr. Mukhtyar Singh Sidhu S/o Late Surjeet Singh
----Respondent
Connected with S.B. Civil Miscellaneous Appeal No. 1975/2021 Dr. Param Navdeep Singh W/o Navdeep Singh D/o Late Shri Surjeet Singh
----Appellant Versus Dr. Mukhtyar Singh Sidhu S/o Late Shri Surjeet
----Respondent For Appellant(s) : Mr. R K Agarwal Sr. Adv. assisted by Mr. Adhiraj Modi through VC For Respondent(s) : Mr. M M Ranjan Sr. Adv. assisted by Mr. Rajat Ranjan through VC Mr. Sanjiv Arora through VC HON'BLE MR. JUSTICE SUDESH BANSAL Order 04/02/2022
1. Both appeals have arisen against the order of dismissal of applications for temporary injunction filed under Order 39 Rule 1 and 2 and in both appeals, except properties in question, parties and issues in controversy are common, therefore, with consent of counsel for both parties, both appeals have been heard together.
2. The facts in both cases are that Shri Surjeet Singh and his wife Smt. Pal Kaur are parents of appellant and respondent Nos.1 to 3. Shri Surjeet Singh and Smt. Pal Kaur both made their independent and separate wills on 07.11.2012 in respect of their (Downloaded on 10/02/2022 at 09:07:39 PM) (2 of 9) [CMA-1974/2021] personal properties. By way of their respective wills, their properties have been bequeathed to one son- Dr. Mukhtyar Singh Sidhu (respondent No.1 herein). Both wills are registered in the office of Sub-Registrar No.5, Jaipur and their two daughters are common witnesses in both wills. Shri Surjeet Singh died on 06.12.2020 and prior to that Smt. Pal Kaur had passed on 26.05.2017. They have been survived by their four natural heirs, two sons and two daughters. Appellant- Dr. Smt. Param Navdeep Singh and respondent No.2- Smt. Charanjeet Kaur are two daughters and respondent Nos.1 and 3 namely Dr. Mukhtyar Singh Sidhu and Tek Singh are two sons. After death of parents, one of the daughter who is appellant-plaintiff has disputed both wills, denying her signatures on both the wills as a witness and alleged both the wills as forged, illegal and void testamentary documents.
3. The appellant has filed two separate civil suits along with two separate applications for temporary injunctions against respondents-defendants No.1 to 3 before the Trial Court on 06.01.2021. The appellant sought declaration that both registered wills dated 07.11.2012, allegedly made and executed by her parents be declared as null and void and consequentially properties in question left by the parents be partitioned among their natural surviving heirs as per Hindu Law of Succession, in equal share of one-fourth to each of their natural heirs. The appellant has categorically denied her signatures on both wills as a witness and has challenged wills on various factual and legal grounds. Her case is that until and unless both wills are not proved as per requirements of provisions enshrined under Section 63 of the India Succession Act, 1925 (hereinafter referred as "the Act of 1925") and under Section 68 of the Indian Evidence Act, (Downloaded on 10/02/2022 at 09:07:39 PM) (3 of 9) [CMA-1974/2021] 1872 (hereinafter referred as "the Act of 1872"), the wills do not come in operation and under law be treated as ineffective and invalid. The appellant has filed two separate civil suits for declaration, partition and permanent injunction in relation for properties left out by father and mother. In both the plaints, in addition to prayer of declaration to declare wills dated 07.11.2012 as null and void and claiming partition of her one-forth share and consequential permanent injunction, following prayer has also been made as under:-
"(ग) यह की वादिया को यह भी अधिकार हांधिल है की यदि िौरान िावा वाि पत्र की मि िंखा 2 ममें वरवरत आवािीय एवं वाविावसाययक िम्प सम्पततयो का ब बेचान सम्पतकिी िीगर ववसायव्यक्ति को सम्पतकया िया जाता है अथवा िम्प सम्पततयो की यो की सियो की स्थि सम्पतत ममें कोई रविोबिल की िया जाती है तो वादिया िया जररय बे आजापक सम्पतनिष बेिाजा सम्पतवरुद प्र सम्पततवािीगव प्राप्त कर िम्प सम्पततयो की िावा प्रकी दावा प्रस की दावा प्रस्तु सम्पतत क बे िमय की यो की सियो की स्थि सम्पतत प की दावा प्रस्तुनस कायम करवाव बे।"
4. Respondents Nos.1 to 3 have jointly opposed suits and applications for temporary injunction filed by appellant. They have alleged that their father and mother executed their respective independent and separate wills on 07.11.2012, in relation to their own acquired personal movable and immovable properties, and through both wills, properties have been bequeathed in favour of one son- Dr. Mukhtyar Singh Sidhu (respondent No.1) and, their both daughters have made their respective signatures as witnesses on both the wills. Both wills were got registered in the office of Sub-Registrar, and apart from wills, two separate power of attorneys were also executed and got registered by their parents on 07.11.2012 itself. On both the power of attorneys also, both daughters made their respective signatures as witness. Respondent No.2, who is one of the daughter & witness on will (Downloaded on 10/02/2022 at 09:07:39 PM) (4 of 9) [CMA-1974/2021] and power of attorney, has categorically admitted her signatures on both wills and has also verified signatures of appellant as well on both the wills. Respondents have submitted that although, appellant has disputed her signatures and thumb impression on wills, but has nowhere disputed and denied signatures of executant of wills, who are their parents. Respondents have further submitted that mother Smt. Pal Kaur died on 26.05.2017, and after her death on the basis of mother's will dated 07.11.2012, respondent No.1 sought transfer of one of plots in his own name before the Jaipur Development Authority, and in that regard one public notice dated 22.08.2017 was published in newspaper but appellant never objected the same. Respondents have submitted that appellant has nowhere disputed and denied power of attorneys executed and registered by their parents on the same day. On power of attorneys also, appellant has made her signature as a witness. They have contended that since appellant has assailed wills made by their parents, disputing her signatures on both wills, and alleging both wills as forged and fabricated, therefore, initial burden of proof lies upon appellant and unless and until, wills are not declared as null and void, appellant has no legal right to claim partition, in properties of their parents invoking the provisions of Hindu Succession Act. They have alleged that it is not a case where parents have died intestate, but they have executed and made registered wills, therefore, succession of their movable and immovable properties would be governed by testamentary documents of wills.
5. The appellant filed two separate applications under Order 39 Rule 1 and 2 CPC along with her civil suits and wherein, the appellant has prayed that during course of trial of suits and until (Downloaded on 10/02/2022 at 09:07:39 PM) (5 of 9) [CMA-1974/2021] final decision, respondents be restrained by way of temporary injunction not to transfer and alienate suit properties and operation of wills in question dated 07.11.2012 be stayed.
6. The trial Court vide impugned orders dated 30.10.2021 has dismissed both applications of appellant filed under Order 39 Rule 1 and 2 and declined to grant interim stay in favour of appellant during course of trial of civil suits. Thus, appellant has assailed both orders dated 30.10.2021 by way of these appeals under Section 104 read with Order 43 Rule 1(r) CPC.
7. Learned counsel for appellant has argued that wills in question dated 07.11.2012 are disputed testamentary documents and in both the wills, the respondent No.1 is the sole beneficiary and respondent Nos.2 and 3 are supporting both the wills in favour of respondent No.1, therefore, burden lies upon respondents to prove the execution of both the wills as per the mandatory requirement of Section 63 of the Act of 1925 and Section 68 of the Act of 1872. He further argued that though one of the witnesses of wills who is respondent No.2- Smt. Charanjeet Kaur admits her signatures as witness and also verified the signatures of appellant as witness, however, when appellant has denied her signatures and thumb impression and has alleged that both the wills are not only illegal and void but also forged and fabricated documents, and has sought declaration of wills as null and void on various grounds, therefore, unless and until the legality and validity of both the wills is not deciding in the civil suits on merits, wills in question may not be treated as effective and valid documents of testament. He further argued that appellant has her one-forth share in suit properties left by her parents and is entitled to get her share in the properties and also (Downloaded on 10/02/2022 at 09:07:39 PM) (6 of 9) [CMA-1974/2021] for consequential decree of permanent injunction. He argued that all issues raised by appellant-plaintiff to declare wills in question as null and void would be adjudicated after recording evidence of parties and during course of trial, therefore, a prima facie case stands in favour of appellant to restrain respondents not to transfer and alienate the properties in question until decision of civil suits on merits. Learned counsel for appellant has relied upon following judgments passed by the Supreme Court in case of Bhagwan Kaur Vs. Kartar Kaur & Ors. [1994 (5) SCC 135], Bhagat Ram & Anr. Vs. Suresh & Ors. [2003 (12) SCC 35], Behnga Behera & Anr. Vs. Braja Kishore Nanda & Ors. [2007 (9) SCC 728], Hardev Singh Vs. Gurmail Singh (Dead) by LRs [2007 (2) SCC 404] & Jitendra Singh Vs. The State of Madhya Pradesh & Ors. [2021 (4) Civil Court Cases 029 (S.C.)] and judgments passed by High Courts in Smt. Kanwaljit Kaur Bedi Vs. Paramjit Singh Sawhney & Ors. [2020(2) Civil Court Cases 278 (P&H)] and Lingala Potha Raju (died) per LRs & Ors. Vs. Chagantipati Annapurnamma & Ors. [2018(2) Civil Court Cases 417 (T&A)].
8. On the other hand, learned counsel for respondents has argued that appellant is not bonafide and fair. Both the wills executed and registered by their father and mother are in knowledge of appellant since inception. It has been argued that appellant made her signatures and thumb impressions as one of witnesses on both the wills, which were registered before Sub- Registrar, therefore, her signatures and thumb impressions are also available in the register of Sub-Registrar office. Her photograph is also fixed on wills and initially in plaints and applications for temporary injunction she disputed and denied only her signatures, but not her thumb impressions. Later on when (Downloaded on 10/02/2022 at 09:07:39 PM) (7 of 9) [CMA-1974/2021] respondents-defendants filed reply, thereafter by way of rejoinder, appellant has disputed her thumb impressions also, which is a malicious conduct of appellant. They have argued that mere denial of signature is not suffice, and moreso when appellant has not denied the document of power of attorneys, which were also executed on same day and registered by parents simultaneously when executing and registered wills in question. They have contended that appellant is a well literate lade, and just to harass and pressurize the respondens, have filed the civil suits by denying her signatures. The appellant has prayed for temporary injunction with an ulterior motive and there is no prima facie case in her favour. It has been argued that requirement of Section 63 of the Act of 1925 and Section 68 of the Act of 1872 stand fulfilled by admission of one of witnesses- respondent No.2 Smt. Charanjeet Kaur, who not only admits her signatures on wills as witness, but also verified signature of appellant. It has been argued that temporary injunction is a discretionary and equitable relief for which appellant is not entitled and the same has rightly been denied by the trial Court. After considering unfair and malicious conduct of appellant. Counsel for respondents have referred following judgments V Kalyanaswamy (D) Vs. Bakthavatsalam (D) [AIRONLINE 2020 SC 644], Rama Ram Vs. Jai Prakash Singh & Ors. [2019 (8) SCC 701], Mahesh Kumar (Dead) By LRs Vs. Vinod Kumar & Ors. [2012 0 Supreme (SC) 225], Savithri & Ors Vs. Karthyayani Amma & Ors. [2007 (11) SCC 621], Rabindra Nath Mukherjee & Anr. Vs. Panchanan Banerjee (dead) by LRs & Ors. [1995 (4) SCC 459], P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar & Ors. [1995 Supp (2) SCC 664], Premji Ratansey Shah & Ors. Vs. Union of (Downloaded on 10/02/2022 at 09:07:39 PM) (8 of 9) [CMA-1974/2021] India & Ors. [1994 (5) SCC 547], Ramswaroop Vs. Amar Singh & Ors. [(2020) 2 RLW(Raj.) 1032], Arvind Chatur Vs. Smt. Laxmi Mehta [2017 2 WLN 158], Ashok Kumar Vs. Vimal Kumar & Ors. [2014 0 Supreme(Raj) 667] Rajudas Vaisnav Vs. Mangilal Vaishnav [2019 2 RLW(Raj) 1073], Lichhma Devi Vs. Parasa Ram [2019 1 WLC(UC) 169], Parul Bala Roy Vs. Srinibash Chowmal [1952 0 AIR (Cal) 364], State Bank of Bikaner Vs. Firm Ballabh Das and sons [1984 0 AIR(Raj) 107] and Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 (supp) SCC 727].
9. In the backdrop of aforementioned factual matrix and series of judgments cited on behalf of both parties, this Court is of prima facie opinion that both appeals require hearing at length. Hence, appeals are admitted for hearing.
10. As far as interim stay during pendency of appeals is concerned, after considering, the peculiar and entire facts and circumstances of this case and after hearing arguments of counsel for both parties, as also taking into consideration the prayer made by plaintiff in her plaint quoted above; declining of the temporary injunction by the trial Court on merits; considering the nature of dispute and details of the properties in question as mentioned in the plaint, this Court is of considered opinion that both cases are fit cases where, by virtue of application of principle of lis pendens, ad interim injunction order to restrain the respondents not to transfer and alienate properties in question, need not to be passed. Thus, it is hereby observed that if any transfer or alienation of the properties in question occurs during pendency of these appeals, same would be hit by the principle of lis pendens as enunciated under Section 52 of Transfer of Property Act, 1882 and (Downloaded on 10/02/2022 at 09:07:39 PM) (9 of 9) [CMA-1974/2021] rights of appellant to pursue the appeals on merits would not be adversely affected.
11. With such observations, stay applications filed in both appeals stand disposed of.
12. Both appeals be posted for final hearing.
(SUDESH BANSAL),J NITIN/3-4 (Downloaded on 10/02/2022 at 09:07:39 PM) Powered by TCPDF (www.tcpdf.org)