Gujarat High Court
Nitaben Devendrasinh Jadav vs Hareshbhai Biharilal Ejner on 11 August, 2023
NEUTRAL CITATION
C/AO/10/2020 JUDGMENT DATED: 11/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 10 of 2020
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In
R/APPEAL FROM ORDER NO. 10 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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NITABEN DEVENDRASINH JADAV
Versus
HARESHBHAI BIHARILAL EJNER
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Appearance:
MR RAVINDRA SHAH(1299) for the Appellant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3
MS MOHINI BHAVSAR, FOR MR BHARAT JANI(352) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/08/2023
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original defendant No.1 against the respondent Nos. 1 and 2 - original plaintiffs and the respondent No. 3 - original defendant No. 2 being aggrieved and dissatisfied with the Page 1 of 10 Downloaded on : Sun Sep 17 01:15:18 IST 2023 NEUTRAL CITATION C/AO/10/2020 JUDGMENT DATED: 11/08/2023 undefined order passed by the learned Chamber Judge, City Civil Court, Court No. 29, Ahmedabad, below Notice of Motion Exh. 6/7 in Civil Suit No. 1172 of 2016 on 10.02.2019. The parties are hereinafter referred to as the plaintiffs and the defendants in their rank and character as they stood in the original suit for the sake of convenience, clarity and brevity.
2. The facts leading to filing this appeal are summarized are as under:
2.1. That the plaintiffs and the defendants are brothers and sisters and the plaintiffs are non-resident Indians and are residing permanently in the United States of America and the defendant No. 2 is residing in Canada. That the parties are sons and daughters of late Biharilal Kalidas Ijner and late Hansaben Biharilal Ijner and the parents of the parties have expired on 19.05.2016 and 12.06.2010 respectively. That deceased Biharilal Kalidas Ijner had property bearing Bungalow No.3, Sangeeta Cooperative Housing Society Ltd., Nr. Ankur Cross Road, Naranpura, Ahmedabad, Tenement No.0525-25-531-0001-B, Ward Yamunanagar and Ward No.0525 (herein after referred to as 'the disputed suit property') and bank accounts in various banks as also movable properties such as jewelry, cash and shares of the different companies and it is also the case of the plaintiffs Page 2 of 10 Downloaded on : Sun Sep 17 01:15:18 IST 2023 NEUTRAL CITATION C/AO/10/2020 JUDGMENT DATED: 11/08/2023 undefined that all the four siblings are the legal heirs and have equal shares in all the movable and immovable properties of their father deceased Biharilal Kalidas Injer.
2.2. That deceased Biharilal Kalidas Ijner had suffered a paralytic stroke on 15.01.2007 and was bed ridden and also suffered from mental issues and that condition remained from 2007 till 2013-14 and their deceased father had executed a Will on 22.10.1997, which was registered at Sr. No. 22287 before the Notary. That the Will was also registered on 23.04.2007 with the office of Sub Registrar at Sr. No. 5228 and thereafter, their father passed away on 19.05.2016. That the defendant No. 1, in the absence of the other three legal heirs, has taken disadvantage of the mental and physical inability of the deceased father and has got a Will executed on 25.11.2011 and 30.11.2012 and has tried to take possession of the property including all the disputed suit properties and hence, the plaintiffs filed the suit for declaration and permanent injunction to restrain the defendant No.1 from carrying out any action on the disputed suit property as well as also to restrain the defendant No.1 from selling, transferring, assigning or alienating, in any manner, the disputed property and also filed the Notice of Motion at Exh. 6 /7 for interim injunction till final disposal of the suit.Page 3 of 10 Downloaded on : Sun Sep 17 01:15:18 IST 2023
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3. The defendants were duly served with the notice and the defendant No.1 appeared and filed the written statement at Exh. 27 denying all the allegations made in the application and has stated that she was looking after her deceased father and the plaintiffs or the defendant no. 2 did not come to look after him, even though, he was ill, on 30.11.2012, the deceased father, on his own free will, executed the registered Will in the presence of two independent witnesses and has affixed his signature in perfect state of mind.
4. The learned Trial court, after considering the documentary evidence produced by the parties as also the submissions made by all the learned advocates for the parties, by an order dated 10.12.2019, partly allowed the application of the plaintiffs and restrained the defendant No.1 from selling, transferring, assigning, mortgaging, gifting or alienating, in any manner, the disputed suit property and also restrained the defendant No.1 from dispossessing the plaintiffs from their possession of the disputed suit property.
5. Being aggrieved and dissatisfied with the impugned order, the defendant No.1 has filed the present appeal mainly stating that the plaintiffs have not made correct statements and have abused the process of law and machinery of the court and have not succeeded in establishing that the Will in Page 4 of 10 Downloaded on : Sun Sep 17 01:15:18 IST 2023 NEUTRAL CITATION C/AO/10/2020 JUDGMENT DATED: 11/08/2023 undefined question is forged, concocted or bogus. The appellant is a co- owner and has ¼ share in the disputed suit property and cannot be legally prevented or enjoying her ownership in the disputed suit property. Admittedly, the plaintiffs have stated that the plaintiffs are non-resident Indian and are residing permanently in the United State of America and the respondent No.2 is residing in Canada and they are not in physically possession of the disputed suit property. Hence, the order passed by the learned trial Court may be set aside.
6. Heard learned advocate Mr. Ravindra Shah for the appellants and learned advocate Ms. Mohini Bhavsar for learned advocate Mr. Bharat Jani for the respondent No. 2.
7. Learned advocate Mr. Ravindra Shah for the appellant has reiterated the contents of the appeal memo and has submitted that the plaintiffs and the defendant No.2 are not in actual physical possession of the disputed suit property but the defendant No. 1 - appellant herein, who is residing in India, was looking after the deceased father and the other siblings had never come to look after the deceased father. That the appellant herein is a co-owner of the disputed suit property, and hence, the order passed by learned Trial Court is not just and proper and may be set aside.
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8. Learned advocate Mr. Ravindra Shah for the appellant has relied upon the following decisions:
1. Kumarasamy Grounder V. Kumarathal alias Gandhimathi reported in 1999 Madras 462.
2. M. Krishna Rao and Anr. Vs. M.L.Narasikha Rao and Ors. reported in AIR 2003 Andhra Pradesh 498.
3. Sant Ram Nagina Ram V. Daya Ram Nagina reported in AIR 1961 Punjab 528.
4. Prakash S. Akotkar and Ors. V. Mansoorkha Gulabkha and Ors. reported in AIR 1996 Bombay 36.
9. Learned advocate Ms. Mohini Bhavsar for the respondent No. 2 has submitted that the order passed by the learned Trial Court is just and proper and the appellant - defendant No. 1 has forged and concocted a bogus Will taking advantage of the ill health of her father when he was ill and the order passed by the learned Trial Court is just and proper and no interference is required, and hence, has urged this court to reject the appeal.
9.1. Learned advocate Ms. Bhavsar for the respondent No. 2 has relied upon the following decisions:
1. Mohd. Mehtab Khan and Ors. V. Khushnuma Ibrahim Khan and Ors. reported in (2013) 9 SCC 221.
2. Akriti Land Con Private Limited V. Krishna Bhargava and Others and Ors. reported in (2017) 13 SCC 212.Page 6 of 10 Downloaded on : Sun Sep 17 01:15:18 IST 2023
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3. Adani Export Ltd. V. Hindustand Organic Chemicals Ltd. reported in 2000 (3) SCC 221.
10. In Wander Limited and another Vs Antox India Pvt. Ltd., reported in 1990 (Supp) Supreme Court Cases 727, the Honourable Apex Court in paragraph 14 observed thus :
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) ".......These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston ....the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."
The appellate judgment does not seem to defer to this principle."
11. In view of the above settled principles of law, this Court has very limited power to interfere with the order passed by the learned trial Court and only in exceptional circumstances, Page 7 of 10 Downloaded on : Sun Sep 17 01:15:18 IST 2023 NEUTRAL CITATION C/AO/10/2020 JUDGMENT DATED: 11/08/2023 undefined the Appellate Court can interfere with the discretionary order passed by the learned trial Court. The Appellate Court cannot reevaluate the entire evidence and arrive at a conclusion contrary to the conclusion arrived at by the learned trial Court unless the said order is found to be invalid, illegal, arbitrary, perverse or contrary to the settled principles of law. Keeping in mind the above principles, this Court has only to see as to whether the learned trial Court has committed any error in passing the impugned order. At the same time, this Court is also required to see whether the cardinal principles of law governing the injunction i.e. prima facie case, balance of convenience and irreparable loss are satisfied or not in passing the order or not?
12. From the record and the submissions made by the learned advocate for the respective parties, it appears that the plaintiffs have filed the suit claiming that they are in possession of the disputed suit property and have prayed for declaration and permanent injunction to restrain the defendant No.1, who is their sister, and admittedly, as per the case of the plaintiffs, a co-owner of the disputed suit property. The defendant No. 1 is claiming possession and ownership of the disputed suit property on the basis of a Will dated 30.11.2012 executed by their deceased father in her favour, whereas, the plaintiffs have filed the suit stating that Page 8 of 10 Downloaded on : Sun Sep 17 01:15:18 IST 2023 NEUTRAL CITATION C/AO/10/2020 JUDGMENT DATED: 11/08/2023 undefined the Will is bogus, concocted and a forged one. The plaintiffs have produced copies of the Will and a Court Commissioner was appointed by the learned Trial Court and a copy of the report of the Court Commissioner has been produced on record. The Court Commissioner prepared the panchnama on 01.07.2016 in the presence of the plaintiffs and the defendant No.1, and at that time, the ground floor of the disputed suit property was opened and the defendant No.1 had the key to the lock of the first floor of the disputed suit property and as per the Court Commissioner's report, the defendant No.1 opened the lock of the door and the Court Commissioner prepared the report of the first floor. Prima facie, it appears that both the parties were in possession of the disputed suit property and the order passed by the learned trial Court restraining the defendant No.1 from taking possession of the disputed suit property from the plaintiffs seems to be perverse and without appreciation of the fact that the defendant No.1 was prima-facie in possession of the first floor of the disputed suit property. Moreover, it is the case of the plaintiffs that they are non- resident Indians and permanently residing in United State of America and the defendant No. 2 is residing in Canada and hence, the order upto to that extent is required to be modified.
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13. The learned Trial Court has appreciated the ingredients of the prima-case, balance of convenience and irreparable loss, but, it appears that the part where the defendant No.1 is also the co-owner and is in possession of the first floor of the disputed suit property is not appreciated in the right perspective.
14. In these facts and circumstances and as discussed above, the order passed by the learned Trial Court is required to be modified to the extent that the defendant No.1 is hereby restrained from selling, transferring, assigning, mortgaging, gifting or alienating, in any manner, the disputed suit property till final disposal of the suit as it prima-facie appears that all the parties are in actual possession of the disputed suit property. The order of the learned Trial Court qua restraining the defendant No.1 from dispossessing the plaintiffs from their possession in the disputed suit property is hereby set aside.
15. In view of the above, present appeal stands disposed of.
Pending civil application, if any, shall stand disposed of accordingly.
Sd/-
(S. V. PINTO, J) F.S.KAZI.....
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