Bombay High Court
Hriday Niraj Mehta vs Umesh Jayantilal Mehta And 7 Ors on 12 April, 2022
Author: Gs Patel
Bench: G.S.Patel, Madhav J Jamdar
Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors
906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 64 OF 2022
IN
INTERIM APPLICATION NO. 1499 OF 2021
IN
SUIT NO. 108 OF 2021
WITH
INTERIM APPLICATION NO. 1231 OF 2022
IN
APPEAL NO. 64 OF 2022
Siddhi Umesh Mehta
aged 27 years, Hindu Indian Inhabitant,
residing at Flt Nos. 201/202, 2nd Floor,
Silver Solitaire, Pant Nagar, Ghatkopar, ...Appellant
(Orig. Defendant No. 3)
(East), Mumbai - 400 077.
~ versus ~
SHEPHALI 1. Hriday Niraj Mehta,
SANJAY
MORMARE aged 19 years, Hindu Indian Inhabitant,
Digitally signed presently residing at B- 302, Fortune
by SHEPHALI
SANJAY
MORMARE Empire, Alkapuri, Vadodara, ...Respondent No. 1
(Orig. Plaintiff )
Date: 2022.04.13
18:28:13 +0530 Gujarat - 390 077.
2. Umesh Jayantilal Mehta,
aged 52 years, Hindu Inhabitant,
for himself and as Karta of Umesh
Jayantilal Mehta HUF, residing at Flat
Nos. 201/202, 2nd Floor, Silver
Solitaire, Pant Nagar, Ghatkopar (East),
Mumbai 400 077.
Page 1 of 29
12th April 2022
Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors
906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
3. Chhaya Umesh Mehta,
aged 47 years, Hindu Indian Inhabitant,
residing at Flat Nos. 201/202, 2nd
Floor, Silver Solitaire, Pant Nagar,
Ghatkopar (East), Mumbai 400 077.
4. Shivam alias Dhairya Umesh
Mehta,
aged 24 years, Hindu Indian Inhabitant,
residing at Flat Nos. 201/202, 2nd
Floor, Silver Solitaire, Pant Nagar,
Ghatkopar (East), Mumbai 400 077.
5. Niraj Jayantilal Mehta,
aged 44 years, Hindu Indian Inhabitant,
for himself and as Karta of Niraj
Jayantilal Mehta HUF, presently
residing at B-302, Fortune Empire,
Alkapuri, Vadodara, Gujarat - 390 077.
6. Priti Niraj Mehta,
aged 43 years, Hindu Indian Inhabitant,
presently residing at B-302,
Fortune Empire, Alkapuri,
Vadodara, Gujarat - 390 077.
7. Bela Nirupam Sheth,
aged 63 years, Hindu Indian Inhabitant,
residing at 8-A, 804, Akshadeep,
Damodar Park, L.B.S. Marg,
Ghatkopar (W), Mumbai 400 086.
8. Silver Solitaire Co- ...Respondents
(Respondent No. 1 is Orig.
operative Housing Society Plaintiff and Respondents Nos. 2
Limited, & 3 are Orig. Defendant Nos. 1 &
2 and Respondent Nos. 4 to 8 are
having its registered address at Plot No. Orig. Defendant Nos. 4 to 8.)
99, Pant Nagar, Ghatkopar (East),
Mumbai 400 077.
Page 2 of 29
12th April 2022
Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors
906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
WITH
APPEAL (L) NO. 8205 OF 2022
IN
INTERIM APPLICATION NO. 1499 OF 2021
IN
SUIT NO. 108 OF 2021
WITH
INTERIM APPLICATION (L) NO. 11732 OF 2022
IN
APPEAL (L) NO. 8205 OF 2022
Hriday Niraj Mehta,
aged 19 years, Hindu Indian Inhabitant,
presently residing at B- 302, Fortune
Empire, Alkapuri, Vadodara, ...Appellant
Gujarat - 390 077. (Orig. Plaintiff )
~ versus ~
1. Umesh Jayantilal Mehta,
aged 52 years, Hindu Inhabitant,
for himself and as Karta of Umesh
Jayantilal Mehta HUF, residing at Flat
Nos. 201/202, 2nd Floor, Silver
Solitaire, Pant Nagar, Ghatkopar (East),
Mumbai 400 077.
2. Chhaya Umesh Mehta,
aged 47 years, Hindu Indian Inhabitant,
residing at Flat Nos. 201/202, 2nd
Floor, Silver Solitaire, Pant Nagar,
Ghatkopar (East), Mumbai 400 077.
Page 3 of 29
12th April 2022
Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors
906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
3. Siddhi Umesh Mehta
aged 27 years, Hindu Indian Inhabitant,
residing at Flt Nos. 201/202, 2nd Floor,
Silver Solitaire, Pant Nagar, Ghatkopar,
(East), Mumbai - 400 077.
4. Shivam alias Dhairya Umesh
Mehta,
aged 24 years, Hindu Indian Inhabitant,
residing at Flat Nos. 201/202, 2nd
Floor, Silver Solitaire, Pant Nagar,
Ghatkopar (East), Mumbai 400 077.
5. Niraj Jayantilal Mehta,
aged 44 years, Hindu Indian Inhabitant,
for himself and as Karta of Niraj
Jayantilal Mehta HUF, presently
residing at B-302, Fortune Empire,
Alkapuri, Vadodara, Gujarat - 390 077.
6. Priti Niraj Mehta,
aged 43 years, Hindu Indian Inhabitant,
presently residing at B-302,
Fortune Empire, Alkapuri,
Vadodara, Gujarat - 390 077.
7. Bela Nirupam Sheth,
aged 63 years, Hindu Indian Inhabitant,
residing at 8-A, 804, Akshadeep,
Damodar Park, L.B.S. Marg,
Ghatkopar (W), Mumbai 400 086.
8. Silver Solitaire Co-
operative Housing Society
Limited,
having its registered address at Plot No.
99, Pant Nagar, Ghatkopar (East), ...Respondents
Mumbai 400 077. (Orig. Defendants)
Page 4 of 29
12th April 2022
Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors
906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
A PPEARANCES
for the appellant in Mr Mustafa Doctor, Senior
appeal no. 64/2022 Advocate, with Bhavik Manek,
Mahesh Menon & Nutan Patel,
i/b Mahesh Menon & Co.
for the appellant in Mr Ashish Kamath, with Rohan
appeal(l) no. Sawant, Vaibhavi Parchake &
8205/2022 Amar Parab, i/b Pandya &
and for the Poonawala.
respondent in
ia/1231/2022.
for respondent no. 7 Mr Mayur Khandeparkar, with
in appeal no. 64/2022 Dhwani Bokaria, i/b M/s.
and appeal(l) no. Purnanand & Co.
8205/2022
for respondent no. 8 Ms Kirtida Chandarana, with
in appeal(l) no. Henna Shah, i/b Mehernosh
8205/2022 Humranwala.
and ia/1231/2022.
CORAM : G.S.Patel &
Madhav J Jamdar, JJ
DATED : 12th April 2022
ORAL JUDGMENT (Per GS Patel J):-
1. This order will dispose of both Appeals and also the Interim Application for stay. The Appeals are by the original Plaintiff and by one of the Defendants against an order of 15th February 2022 passed by the learned Single Judge on an Interim Application by the Plaintiff.
Page 5 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
2. Since the parties are related, it is probably best to set out the inter se relations. The Plaintiff is one Hriday Niraj Mehta, about 19 years old at the time of institution of the Suit. The 1st Defendant is Umesh Jayantilal Mehta, Hriday's paternal uncle, his father's brother. The 2nd Defendant, Chhaya Umesh Mehta, is Umesh's wife. Defendant No 3 is Siddhi, Umesh and Chhaya's daughter. The 4th Defendant is Shivam, Siddhi's brother, Umesh and Chhaya's son. Defendant No. 5 is Hriday's father, Niraj (Umesh's brother). Defendant No. 6 is Priti, Niraj's wife. Thus Niraj and Priti are Hriday's parents. Umesh and Chhaya are the parents of Siddhi and Shivam. Niraj and Umesh are brothers. Hriday, Siddhi and Shivam are paternal first cousins.
3. Appeal No. 64 of 2022 is by Siddhi. Appeal (L) No. 8205 of 2022 is by Hriday.
4. Hriday brought suit on 22nd March 2021 about a year or so after he attained majority. In this, he assailed two Gifts Deeds dated 20th November 2014 at Exhibits "F" and "G" to the Plaint. These were in respect of two residential flats 201 and 202 of about 900 sq ft and 1485 sq ft carpet area respectively on the second floor of the Silver Solitaire CHS Limited at Ghatkopar (East), Mumbai 400 077. Hriday said that both these Gifts Deeds were void ab-initio, invalid, illegal and not binding either on him or on his father's HUF i.e. the Niraj Jayantilal Mehta HUF.
5. The second prayer was for a declaration that the Niraj Jayantilal Mehta HUF, of which Hriday was a member, and its Page 6 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc members and coparceners (including Hriday) were entitled to a 50% undivided share, right, title and interest in these two flats. Prayer (c) was for a partition. Prayer (d) was for possession of the one of the two flats to Hriday for his absolute use and occupation. Then there was a prayer for mesne profits, a prayer for disclosure of assets, and a prayer for an injunction. Later, additional prayers were included by amendment. These included a declaration that an Agreement for Sale dated 10th December 2020 executed by Siddhi in favour of the 7th Defendant, the purchaser, Bela Nirupam Sheth (herself joined by amendment) in respect of both flats was also void ab-initio and illegal. The Society has already been joined as the 8th Defendant by way of amendment. An alternative prayer was for a money decree against the Umesh Mehta group to pay 50% of the proceeds of the sale in favour of Bela Sheth of two flats. An interim prayer was added for an order directing the society not to permit any transfer or charge on these flats.
6. Very shortly stated, Hriday's case was that the alienation of these flats initially by means of the Gift Deeds was entirely fraudulent and unlawful, and illegally deprived him, during the time he was a minor, of his share in those two flats.
7. The Plaint recited that Hriday's paternal grandfather (the father of Umesh and Niraj) one Jayantilal Mehta established a successful business of trading in glass bottles. Hriday's allegation in his Plaint was that Umesh caused this business to suffer enormous losses. This led to Umesh, Chayya, Niraj and Priti becoming heavily indebted. They had to face claims from lenders, including banks and financial institutions.
Page 7 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
8. Sometime in 2011, there came to be filed Suit No. 2283 of 2011. The plaintiffs to the 2011 Suit were Hriday himself through his next friend, Siddhi for herself and on behalf of her then-minor brother, Shivam. The suit was filed against their respective parents, Umesh, Chayya, Niraj and Priti. There these three first cousins filed Notice of Motion No. 2759 of 2011 for interim relief. Their fathers Umesh and Niraj made a categorical statement that neither HUF, i.e. neither the HUF of Niraj nor the HUF of Umesh (or their Kartas at that time viz., Umesh and Niraj) had any intention of creating third party rights or interests in these two flats. This statement was reiterated in a Written Statement filed jointly by the two sets of parents on 12th October 2012.
9. In the 2021 Suit, which he filed alone on attaining majority, Hriday said that he learnt that his paternal uncle Umesh exercised extreme undue influence and used his dominant position to get Hriday's own father, Niraj to execute the two purported Gift Deeds of 2014 in Niraj's capacity as a Karta of the Niraj Jayantilal Mehta HUF gifting the entirety of that HUF's interest in these two flats to Siddhi alone. According to Hriday, Umesh perpetrated a fraud on the members of his father's HUF and thus on every coparcener in that HUF. On 19th November 2020, Hriday caused a notice to be sent to his paternal uncle and aunt, his paternal cousins and his parents. There was a standard-form reply on 25th November 2020 merely denying the contentions and saying that a detailed reply would follow. In the correspondence that then ensued, it emerged that there were two Gift Deeds, one in respect of each flat, and these were executed and registered with the Registrar of Assurances as long ago as 20th November 2014.
Page 8 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
10. It is with this case Hriday came to Court and said these Gift Deeds in favour of his cousin, Siddhi, purportedly executed by the Kartas of the two HUFs, viz., his paternal uncle, Umesh and his own father, Niraj were void and illegal. He said that neither of them had the authority to execute the Gift Deeds particularly in regard to Hriday's interest in the two flats. At the time of the Gift Deeds, Hriday was a minor. Nobody had ever attempted to obtain permission of a Court to alienate Hriday's share in these two flats. There was no mention anywhere of this divestment of Hriday's interest in the flats being for Hriday's legal necessity.
11. The learned Single Judge was told that the two flats were sold in December 2020 by Siddhi to Bela Sheth. Hriday amended his Plaint. He said that this transfer by Siddhi to Bela Sheth was illegal and was intended to defeat his claim. He was allowed to amend to implead Bela Sheth and the Society, and to challenge the Agreement for Sale dated 10th December 2020 between Siddhi and Bela Sheth.
12. The Interim Application in the Suit broadly followed the Plaint in terms of its prayers but while the title was amended, there appears to have been no corresponding amendment to the prayers of the Interim Application. Prayer (a) of Hriday's Interim Application was for a restraint against the Defendants from dispossessing of, alienating, encumbering or creating third party rights in respect of the flats. The second prayer was for the appointment of a Receiver and the third prayer was for an injunction restraining the Defendants from preventing Hriday from residing in the premises.
Page 9 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
13. It was this application that Umesh's family i.e. he, his wife and his two children resisted. Hriday's parents stayed out of the litigation fray. The Umesh Group said that the Plaintiff was guilty of suppression. They maintained that Siddhi became the absolute owner of the suit flats by virtue of the Gift Deeds, and it was in that capacity that she conveyed her interest to Bela Sheth on 7th December 2020. Bela Sheth was represented and said that she had paid the full consideration and actually taken possession. All this, the Umesh Group said, was known to Hriday even before he filed the suit and the suit was therefore a complete afterthought. They also maintained that Niraj, Hriday's father had executed the Gift Deeds voluntarily in 2014 and any challenge to those Gift Deeds was barred by limitation. They specifically said that Niraj, Hriday's father, was the driving force and guiding light to the entire litigation.
14. We do not think we need to be detained by considering the stand of the society or further dwelling on the contentions of Bela Sheth, the purchaser. What is important is how the rival parties placed their case before the learned Single Judge and the form of the order that the learned Single Judge then made.
15. The first contention advanced on behalf of Niraj was that there was a severance in both HUFs immediately on institution of the 2011 Suit by Hriday and Siddhi (for herself and on behalf of Shivam, then a minor). If there was a severance, then no Gift Deeds would have been executed three years later in 2014 by the very same HUFs. If that was so, Siddhi could not be said to have validly acquired any right, title or interest to the suit flats; and, consequently, she had no title to pass to Bela Sheth. After all, Siddhi Page 10 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc herself was a co-plaintiff with Hriday to the 2011 Suit. There was an unequivocal expression of the plaintiffs' intention in the 2011 suit to partition the joint family (i.e. HUF) properties. Umesh and his wife and equally Niraj and his wife could not take shelter behind Section 6 of the Hindu Minority and Guardianship Act 1956 by saying that Niraj had disposed of the undivided interest that vested in Hriday simply because after 2011, when there was a severance, Niraj had no right to do so.
16. Extending this argument further, counsel for Hriday argued before the learned single Judge that the execution of the Agreement in December 2020 after all were put to notice betrayed the dishonesty and mala fide intentions of the Umesh Group. There was already lis pendens registered. No public notice, importantly, was ever issued. Taken together, this constellation of facts could only lead to only one in ineluctable conclusion: that the entire attempt was to clandestinely transfer the property and obtain the sale proceeds only with a view to defeat Hriday's to the flat.
17. There was strong opposition to this entire formulation from Umesh Group. It argued that the entire basis of the suit was flawed. On the one hand, Hriday said that a joint family status was disrupted in 2011, but strangely enough in the prayer (b) of the 2021 Plaint Hriday still claimed a 50% undivided interest in the Suit flats. The two positions, it was argued, were not only contradictory but were mutually destructive. If there was a severance in 2011, Hriday could not, it was argued, claim an undivided interest in the Suit flats in the name of the severed HUF and yet that was precisely the frame of prayer. Further, it was argued that the Plaint was entirely silent Page 11 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc about the conduct of Hriday's own father, Niraj. We note incidentally that Niraj and Hriday share a common residential address. What impact this will have is perhaps left for a decision another day. But the argument before the leaned Single Judge was that it was Niraj, Hriday's father. who voluntarily and knowingly executed the Gift Deeds and then bided his time for six years until his son, Hriday, attained majority and then launched the present litigation, firing, as it were from the shoulders of his son. The argument that was pressed into service before the learned Single Judge was, therefore, that granting any relief to Hriday was inequitable. It would amount to granting Niraj relief in an indirect fashion.
18. On this presentation of the rival submissions, the learned Single Judge observed that central to the dispute was the question of the legality and validity of the Gift Deeds. In this context, it was argued that a Karta of an HUF is not required to obtain prior permission of the Court under Section 8(2) of the Hindu Minority and Guardianship Act 1956 ("the HMG Act") in respect of HUF property. The answer to this from Hriday was that as of 2014 there was a severance in both HUFs and this severance was triggered by the filing of the 2011 Suit. Once that severance took place, there was severance in the joint status. The exemption for a Karta would no longer apply. Hriday would then have an undivided interest in the two flats in his own right. To divest his interest during the period of his minority, one of his natural guardians would have had to seek leave of the Court establishing a case of legal necessity to alienate Hriday's share as a minor in the two flats. Before the learned Single Judge reliance was placed on the decision of the Supreme Court in Page 12 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc Jalaja Shedthi & Ors vs Lakshmi Shedthi & Ors. 1 That was a case of a partition. It was cited for the proposition that once there is a such a suit demanding partition, there is a severance of joint family status though there may not be a division by metes and bounds. After this, the family can never be considered to continue as an undivided family, and the interest of a coparceners can never be considered to be a joint family interest. Paragraph 12 of this decision was relied on.
19. Then reliance was also placed on the well-known decision of the Supreme Court in Phoolchand & Anr vs Gopal Lal,2 where the Supreme Court emphasized that immediately on the institution of a suit there would be a severance in the status among the members of a joint Hindu family.
20. Hriday pointed out that in the 2011 suit he, Siddhi and Shivam had distinctly claimed partition and separate possession of their respective shares.
21. Sections 6, 8 and 12 of the Hindu Minority and Guardianship Act read thus:
6. Natural guardians of a Hindu minor.--The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are--
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother:
1 (1973) 2 SCC 773 2 AIR 1967 SC 1470.Page 13 of 29
12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl--the mother, and after her, the father;
(c) in the case of a married girl--the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section--
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the
world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step-mother.
8. Powers of natural guardian.--
(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,--
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.Page 14 of 29
12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular--
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the Acts mentioned in sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court Page 15 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc within the local limits of whose jurisdiction any portion of the property is situate.
12. Guardian not to be appointed for minors undivided interest in joint family property.--Where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of a High Court to appoint a guardian in respect of such interest.
22. These provisions make it clear that the natural guardian of the property of a Hindu minor must seek leave of the Court to dispose of the minor's interest in any immovable property. The reason for this is self-evident. However, if the minor has undivided interest in joint family property, prior permission of the Court under Section 8 is not required to dispose of the undivided interest of a minor in joint family property. Such joint family property may be alienated by a karta including an alienation of the undivided interest of the minor in joint family property.3
23. This would necessarily have raised the question before the learned Single Judge whether Hriday continued to have an undivided interest in the joint family property in 2014 on the date of the Gift Deeds or whether there was a prior severance of a joint family status in 2011. The learned Single Judge came to the 3 Sri Narayan Bal & Others vs. Sridhar Sutar & Ors, (1996) 8 SCC 54; and Vasantrao Gulabrao Thakre and Ors v Sudhakar Wamanrao Hingankar and Ors, 2018 SCC OnLine Bom 11459 : (2018) 5 Mah LJ 121, were both cited before the learned single Judge.Page 16 of 29
12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc conclusion that the purpose of 2011 suit was to protect the joint family properties from being proceeded against by creditors and lenders pursing recovery. Notably the 2011 suit was dismissed for want of prosecution on 10th April 2017. Yet the institution of the suit and its consequences remained, as did the statements made by the defendants to that suit in their written statement. It is at this stage that the learned Single Judge held in paragraph 24 as follows:
"24. At the juncture, whatever be the driving factor for the institution of Suit No. 2283 of 2011, which was primarily for declaration of the rights of the plaintiff and defendant Nos. 3 and 4 in the suit flats and partition thereof, it would be rather difficult to draw an inference that the institution of the said suit did not manifest an intention to sever the joint status. It is imperative to note that defendant No. 3 herein had sought partition for herself and defendant No. 4. The institution of the suit on behalf of the plaintiff by the next friend may be questioned;. But it cannot be discounted that defendant No. 3 had also sought partition. In this view of the matter prima facie, the claim of the defendant Nos. 1 to 4 that the families continued to be joint despite manifestation of clear intention, becomes contentious."
24. We believe this prima facie view formed by the learned Single Judge is not only unexceptionable but is entirely correct. The later dismissal of the 2011 suit or the purpose for which it was filed cannot result in an elision of the inevitable legal consequence of a severance of the joint family status. That is a consequence in law irrespective of what the parties intended or what fate finally befell the suit itself.
Page 17 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
25. The learned Single Judge then addressed the question of delay in assailing the Gift Deeds. He came to the conclusion that there may be some substance to this defence. He held that it could not be readily accepted that Hriday's father's HUF, the Niraj Jayantilal Mehta's HUF, made a disposal in 2014 in favour of Siddhi (Hriday's first cousin and Niraj's paternal niece) out of 'natural love and affection' at a time when both HUFs were under financial stress. If there was an attempt by the Umesh Mehta Group to show some tacit understanding underlying the Gift Deeds then the very basis of the Gift Deeds would disappear.
26. Above all, there stood the question of Section 8 of the HMG Act and the lack of prior permission. That kind of a disposal without leave of the Court is always voidable at the instance of the minor. If the minor Plaintiff on attaining majority is successful in assailing the disposal then it is void ab-initio.
27. With this, we turn immediately to the order that the learned Single Judge fashioned. This is what he held:
"ORDER 1] The application stands partly allowed. 2] The defendant No. 3 Siddhi Umesh Mehta shall either deposit a sum of Rs. 1,35,00,000/- (One Crore Thirty Five Lakhs) in this court or furnish a bank guarantee of the same account and keep the same alive till the disposal of the suit, within a period of eight weeks from today. 3] In the event the defendant No. 3 deposits the amount of Rs. 1,35,00,000/- (One Crore Thirty Five Lakhs) the Page 18 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc Prothonotary and Senior Master of his Court shall invest the same in an interest bearing deposit account.
4] Costs in cause."
28. Siddhi's attack on this order is like this. It is said that there was no prayer at all for furnishing security or depositing any amount. The entire claim of Hriday was ultimately was only a money claim. Siddhi now maintains that she ought not to have been ask to make any deposit at all. She stands by the Gift Deeds and the sale Agreement in favour of Bela Sheth. Hriday on the other hand in his Appeal says that apart from the order of deposit which was necessitated owing to the peculiar facts, circumstances and exigencies of the case, there ought to have been a full-spectrum injunction against Bela Sheth as well.
29. We are not inclined to agree with either of these submissions. We do so on two broad principles. The first of these relates to what we believe is the correct approach of an Appellate Court in assessing interlocutory injunctions. We have in a recent decision in Kanaiyabhai Lalbhai Contractor vs Kalpesh Patel & Ors 4 set out our understanding of the law on the subject right up to a very recent decision of 13th March 2022 of the Supreme Court in these words. We reiterate our view below.
30. In paragraph 14 of Wander Limited v Antox India Pvt Ltd5, a three-Judge Bench of the Supreme Court said:
4 Appeal No. 13 of 2022 in Interim Application (L) NO. 13158 of 2021 in Suit No. 78 of 2022 with Interim Application (L) No. 25334 of 2021 in Appeal No. 13 of 2022, decided on 1st April 2022. 5 1990 (SUPP) SC 727.Page 19 of 29
12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc "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."Page 20 of 29
12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc The appellate judgment does not seem to defer to this principle."
(Emphasis added)
31. It is also well settled that when considering an application for interim relief, a Single Judge is not expected and is in fact not permitted to conduct mini-trial. It is the prima facie case that is to be assessed.6
32. Further, as the Supreme Court said in Monsanto Technology LLC v Nuziveedu Seeds Ltd,7 the appeals court must not 'usurp the jurisdiction of the Single Judge'; it must confine itself to an adjudication of whether the impugned order was or was not justified in the facts and circumstances of the case. Where there are complicated mixed questions of law and fact, these cannot be dealt with in a summary adjudication, but must be examined on evidence led in the suit.
33. It is also settled, as the Supreme Court said in paragraph 31 of Alka Gupta v Narendra Kumar Gupta,8 that it is not open to a court of first instance (in that case, a learned single Judge of the Delhi High Court) to decide questions of fact and render a judgment without evidence tested by cross-examination. In Alka Gupta, the matter arose not from an interlocutory order but at a stage when, 6 SM Dyechem Ltd v Cadbury India Ltd, (2000) 5 SCC 573; Anand Prasad Agarwalla v Tarkeshwar Prasad & Ors, (2001) 5 SCC 568; Zenit Mataplast Pvt Ltd v State of Maharashtra & Ors, (2009) 10 SCC 388. 7 (2019) 3 SCC 381.
8 (2010) 10 SCC 141.
Page 21 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc after issues had been struck, the trial court was hearing parties on a preliminary issue.
34. The usual determinants for any Interim Application must be borne in mind namely whether the Plaintiff has made out a prima facie case, the question of balance of convenience and where lies the greater and more irreparable injury. These prima facie findings are tentative, to preserve the status quo until the matter is decided finally.9
35. In Colgate Palmolive (India) Ltd v Hindustan Lever Ltd,10 the Supreme Court set out some of the other considerations that ought to weigh with a court hearing an application for the grant of an injunction:
24. We, however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the court, since the issue of grant of injunction, usually, is at the earliest possible stage so far as the time-frame is concerned. The other considerations which ought to weigh with the court hearing the application or petition for the grant of injunctions are as below:
(i) extent of damages being an adequate remedy;
(ii) protect the plaintiff's interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor;
9 Zenit Matapalst, supra, paragraphs 30 and 31. 10 (1999) 7 SCC 1.
Page 22 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc
(iii) the court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the other's;
(iv) no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case -- the relief being kept flexible;
(v) the issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;
(vi) balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.
(Emphasis added)
36. In the very recent decision of 14th March 2022 in Shyam Sel & Power Ltd & Anr v Shyam Steel Industries Ltd,11 the Supreme Court had before it a challenge to an appellate order from an interim or interlocutory order of a learned single Judge of the Calcutta High Court.12 The Supreme Court first addressed the question of what is a 'judgment' within the meaning of the Code of Civil Procedure, 1908 and the Letters Patent, analysing Shah Babulal Khimji v 11 2022 SCC OnLine SC 313.
12 Like Wander Ltd and Monsanto, this was also an intellectual property case.
Page 23 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc Jayaben D Kania.13 The Supreme Court in Shyam Sel reiterated the law in Wander Ltd and Monsanto.14 We may profitably reproduce paragraphs 31 and 33 to 38 of the Shyam Sel decision:
31. Though the Division Bench of the High Court, referring to the judgment of this Court in the case of Wander Ltd. (supra), observes that the appellate court will not substitute its opinion with that of the trial court in an interim application unless there is a perversity in the order, it fails to discuss as to how the view taken by the trial judge was either perverse or impossible.
33. We ask a question to ourselves that, in an appeal against the order of a Single Judge, if the Division Bench of the High Court is not required to evaluate the question as to whether the discretion exercised by the trial court was right or wrong, what else is it required to do. We are unable to trace the source of the duty of the appellate court which makes it bound to pass a suitable interim order pending the trial of the suit.
34. The Division Bench of the High Court further observes that for doing so, it has to put itself in a position as if it was moved to pass an interim order in the suit. At the cost of repetition, we reiterate that if the approach of the Division Bench of the High Court is to be upheld, then there would be no necessity to have the trial courts at all. Thereafter, the Division Bench of the High Court observes that the case was different from Wander Ltd. (supra). The Division Bench of the High Court stops at that. It does not even take the trouble to observe as to how the scope of the appeal before it was different from the scope as defined by this Court in Wander Ltd. (supra). In a line thereafter, the Division Bench of the High Court
13 (1981) 4 SCC 8.
14 Paragraphs 11, 29, 31, 34, 35, 36.
Page 24 of 2912th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc observes that prima facie case on facts theoretically is in favour of the appellant therein (plaintiff ) and thereafter, passes various directions including the injunction. Though, in fact, it allows the appeal in entirety by allowing an application under Order XXXIX Rules 1 and 2 CPC pendente lite the suit, it graciously observes in the ultimate para that it was only modifying the order dated 2nd April 2019 passed by the learned Single Judge.
35. The learned Judges of the Division Bench of the High Court have taken pains to make a mention of the judgment of this Court in the case of Wander Ltd. (supra). This judgment has been guiding the appellate courts in the country for decades while exercising their appellate jurisdiction considering the correctness of the discretion and jurisdiction exercised by the trial courts for grant or refusal of interlocutory injunctions. In the said case, the learned Single Judge had refused an order of temporary injunction in favour of the plaintiff who was claiming to be a registered proprietor of the registered trade mark. The Division Bench of the High Court had reversed the order passed by the learned Single Judge and granted interim injunction. Reversing the order of the Division Bench of the High Court and maintaining the order of the learned Single Judge, this Court observed thus:
[paragraph 14 of Wander Ltd is then set out; extracted above]
36. Though the learned Judges of the Division Bench of the High Court have on more than one occasion referred to the judgment of this Court in Wander Ltd. (supra), they have not even, for namesake, observed as to how the discretion exercised by the learned Single Judge was exercised arbitrarily, capriciously or perversely. In our view, having waited for 8-9 months after the learned Single Judge had passed the order, all that ought to have been done Page 25 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc by the learned Judges of the Division Bench of the High Court was to request the learned Single Judge to decide the application for ad-interim injunction, which in fact, the learned Single Judge had scheduled to do after three weeks from 2nd April 2019. In our view, it was not even necessary for the Division Bench of the High Court to have waited till 24th December 2019 and taken the pains of deciding the application at first instance. It could have very well, in the month of April, 2019 itself, done the exercise of requesting the learned Single Judge to decide the application as scheduled.
37. In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application. It is a settled principle of law that while considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury. Besides a stray observation that the respondent-plaintiff has made out a prima facie case, there is no discussion as to how a prima facie case was made out by the respondent- plaintiff. In any case, insofar as the tests of balance of convenience and irreparable injury are concerned, there is not even a mention with regard to these in the impugned judgment and order of the Division Bench of the High Court. In our view, the approach of the Division Bench of the High Court was totally unwarranted and uncalled for. We refrain ourselves from using any stronger words.
38. We find that it is high time that this Court should take note of frivolous appeals being filed against Page 26 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged. We therefore find that the present appeal deserves to be allowed with token costs. The respondent-plaintiff shall pay a token cost of Rs. 5 lakhs to the Supreme Court Middle Income Group Legal Aid Society (MIG).
(Emphasis added)
37. The second approach is derived from this first broad principle, and here we would echo the view of the learned Single Judge that prima facie the validity of the Gift Deeds needs to be decided on the basis of whether or not Niraj was legally competent to execute either of them especially in the context of the legal consequence of severance of joint family status emanating from the institution of the 2011 suit. Irrespective of the stand of Niraj and Priti, it is the legal consequence that would need to be tested.
38. What the learned Single Judge did in paragraph 8 was, in our view, to correctly balance in a measured and judicious fashion without conducting a mini trial the rival rights and contentions. To put it differently, the learned Single Judge approached the matter this way. Is there a prima facie case made out? Where lies the balance of convenience? To whom would be occasioned the greater and more irreparable prejudice if relief was granted as opposed to if relief was denied? It is for this reason that the learned Single Judge directed Siddhi to deposit only a part of the sale consideration or to furnish security for it. Siddhi sold these two flats for a total Rs. 8 Page 27 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc crores. That is not in dispute. The learned single Judge did not ask for the full amount to be deposited. What the Single Judge did was to require Siddhi to deposit either Rs.1.35 crores in Court or to furnish a bank guarantee and to keep this alive until disposal of the Suit. He gave Siddhi time of eight weeks to do so. The learned Single Judge was careful to observe that indeed there was no corresponding prayer for what he was proposing to do. But we do not believe the hands of the Civil Court are necessarily tied by the frame of this or that prayer. It is the duty of a Court of equity to do justice in a judicious, equitable and reasonable fashion, and this, in our view, is exactly what the learned Single Judge has done. The alternative according to Siddhi would have been to dismiss the IA but the consequences of that to Hriday's case would have been unimaginable. His cause was then all but lost. The entire question of the legal competence of his father to execute a Gift Deeds of severed HUF property in favour of his first cousin would have been rendered sterile. A dismissal of the Interim Application would have resulted in a completely irreversible situation. This is one of the considerations that must weigh with a Court asked to decide an interim or interlocutory application as the extracts from the judgments noted above shows.
39. This is why in paragraph 31, the learned Single Judge said:
"31. The Defendant No. 3 has admittedly received consideration of Rs. 8 Crores. In my view, it would, therefore, be in the fitness of things to direct the defendant No. 3 to either deposit a certain portion of sale consideration received by her or furnish security, to secure the interest of the plaintiff. In the circumstances of the case, in view of the substantive prayer in the plaint, despite there Page 28 of 29 12th April 2022 Siddhi Umesh Mehta vs Hriday Niraj Mehta & Ors 906-OSAPP-64-2022-AND-OSAPPL-8205-2022-J.doc being no corresponding prayer in the interim application, in my considered view, it would be expedient in the interest of justice to obtain a deposit or security so that equities can be worked out at the final disposal of the suit. Lest the plaintiff would be left in the lurch. From this stand point, the balance of convenience tilts in favour of the plaintiff."
40. In our view, the impugned order from either perspective is an appropriately judicious and balanced order and it calls for no interference. Merely because another view is possible is no reason to interfere. Neither appellant is able to show us that the impugned order is thoroughly implausible, not even a possible view, or is contrary to law.
41. Both Appeals are dismissed. The corresponding Interim Applications do not survive and are disposed of accordingly.
42. The time to Siddhi to furnish the bank guarantee or make the deposit has expired. We extend that time till 10th June 2022.
43. No costs.
(Madhav J. Jamdar, J) (G. S. Patel, J)
Page 29 of 29
12th April 2022