Rajasthan High Court - Jodhpur
Arvind Chatur & Ors vs Smt. Laxmi Mehta & Ors on 4 April, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2249 / 2016
APPELLANTS :
1. Arvind Chatur S/o Late Shri Prakash Mal Chatur, aged about
61 years, R/o 21, Navlok, Navratan Complex, Udaipur (Raj.).
2. Siddharth Chatur S/o Late Shri Prakash Mal Chatur, aged
about 56 years, R/o House No.3, Navratan Complex, Udaipur
(Raj.).
3. Smt. Kusum Babel W/o Dcr. D.K. Babel D/o Late Shri
Prakash Mal Chatur, R/o 117, Goivind Nagar, Sector No.13,
Babel Ki Badi, Udaipur (Raj.).
Versus
RESPONDENTS :
1. Smt. Laxmi Mehta W/o Late Shri Vijay Singh Mehta D/o Late
Shri Prakash Mal Chatur, R/o B-120, Anandpuri, Moti Dungari
Road, Jaipur (Raj.).
...... (Plaintiff)
2. Mahendra Kumar S/o Late Shri Prakash Mal Chatur, R/o
House No.93, Patho Ki Magri, Near Sewashram Circle,
Udaipur (Raj.) through his legal representatives :-
2/1. Smt. Chandra Chatur W/o Late Shri Mahendra Kumar
Chatur, R/o House No.93, Patho Ki Magri, Near
Sewashram Circle, Udaipur (Raj.).
2/2. Nirbhay Chatur S/o Late Shri Mahendra Kumar Chatur,
R/o House No.93, Patho Ki Magri, Near Sewashram
Circle, Udaipur (Raj.).
3. Lalit Kumar S/o Late Shri Prakash Mal Chatur, R/o house
No.124, Maldas Street, Udaipur (Raj.).
4. Abhay Kumar Chatur S/o Late Shhri Prakash Mal Chatur, R/o
House No.L-1-10, Jai Shree Colony, Dulkot, Aayad, Udaipur
(Raj.).
5. Surendra Kumar Chatur S/o Late Shri Prakash Mal Chatur,
R/o House No.93, Patho Ki Magri, Near Sewashram Circle,
Udaipur (Raj.).
(Presently residing at Mahaveer Colony, Jambeshwar Nagar,
Bhilwara)
....... (Defendant Nos.1 to 4)
(2 of 14)
[CMA-2249/2016]
6. Smt. Roshan Devi W/o Shri Jeetmal Menariya, R/o Nanesh
Colony, Behind Heerawas Railway Station, Fateh Nagar,
Tehsil Mawali, District Udaipur (Raj.).
....... (Defendant No.8)
7. Smt. Usha Kumari Chatur W/o Abhay Kumar Chatur, R/o
house No.L-1-10, Jaishree Colony, Dhulkot, Aayad, Udaipur
(Raj.).
...... (Defendant No.9)
8. Chandmal Jain S/o Shri Bhanwar Lal Jain,
9. Smt. Kamla W/o Chandmal Jain,
10. Subhash S/o Chandmal Jain,
11. Naresh S/o Chandmal Jain,
12. Smt. Sunita D/o Subhash Jain,
Respondent Nos. 8 to 12 all residents of Fateh Nagar, Tehsil
Mawali, District Udaipur (Raj.).
_____________________________________________________
For Appellant(s) : Mr. D.S. Beniwal.
For Respondent(s) : Mr. Sajjan Singh.
Mr. V.N. Kalla.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 04/04/2017 This appeal is directed against the order dated 10.8.2016 passed by the Additional District Judge No.2, Udaipur, whereby the application filed by the respondent No.1 under Order XXXIX, Rule 1 & 2 CPC has been partly accepted and appellants as well as respondents No.2 to 5 have been restrained from transferring or creating encumbrance on the suit property without permission of the Court. However, the application qua respondents No. 6 to 12 has been rejected.
(3 of 14) [CMA-2249/2016] The respondent No.1 - Smt. Laxmi Mehta filed a suit for partition and permanent injunction against the appellants and respondents No.2 to 12 inter-alia with the averments that she alongwith appellants and respondents No.1 to 4 were legal representatives of Late Prakash Mal Chatur; one Late Roshan Lal Chatur had three sons namely Manohar Lal, Parshavachand and Prakashmal; Manohar Lal had no issue, Parshavachand had two sons and Prakashmal had eight children; Late Roshan Lal Chatur had lot of properties, which remained in his possession and ownership during his life time, who died in February, 1962, the properties left by him remained joined; Prakashmal married Smt. Sugan Kanwar, who was mother of respondents No.1 to 4 and after death of Sugan Kanwar, he married Smt. Suraj Kanwar, from whom he had the appellant as well as respondent No.5 as children.
A suit was filed by Mahendra Kumar - respondent No.2 son of Prakashmal seeking partition of properties left by Late Roshan Lal. The suit was registered as 242/1985, whereafter, during the pendency of the suit, there was compromise between the parties. Based on the compromise, 1/3rd property of Roshan Lal was given to Parshavachand, 1/3rd property to Prakashmal and 1/3rd property was divided in six sons of Prakashmal, whereby every one got 1/18th property. It was then claimed that Prakashmal got the property, which was indicated in para 5 of the decree dated 25.4.1990, which decree was amended on 29.10.1990, wherein the properties indicated in para 5 were modified. It was claimed that the properties, which Prakashmal received were joint family (4 of 14) [CMA-2249/2016] properties and as the same have not been partitioned by metes and bounds and the plaintiff being one of the co-sharer is entitled to share in the property. It was claimed that in the previous suit filed by Mahendra Kumar, the plaintiff was not impleaded as party and in the suit property the plaintiff has got 1/8th share and all other legal representatives have 1/8th share. It was alleged that Late Smt. Suraj Kanwar wife of Prakashmal based on a will got the suit property recorded in her name in the revenue records and has squandered the property by transferring the same to other persons, the particulars of the transfers made were indicated in the plaint. It was claimed that the properties received by Prakashmal from Roshan Lal were joint family properties, in which the plaintiff has got a share.
Based on the said averments, relief was claimed that the property as indicated in para 6 of the plaint be partitioned by metes & bounds and the plaintiff be given separate 1/8th share in the suit property.
Alongwith the suit, an application under Order XXXIX, Rule 1 & 2 CPC was filed with a prayer that during the pendency of the suit, the defendants be restrained from dealing with the suit property.
While the respondents No.2 to 4 did not oppose the plea raised by the appellants, the appellants filed their written statement and vehemently opposed the submissions. It was inter- alia claimed that the properties in question were self acquired property of Roshan Lal and after his death, his three sons become absolute owners in terms of Section 8 of the Hindu Succession (5 of 14) [CMA-2249/2016] Act, 1956 ('the H.S. Act'). Though, the grand son had no right in the property of Late Roshan Lal, in the suit filed by Mahendra Kumar, there was a compromise and as part of the compromise, 1/3rd property came to the share of Parsharvachand, 1/3rd property came to the share of Prakashmal, 1/3rd property was given to six sons of Prakashmal, though, they had no right but to avoid any future dispute, the compromise was entered into. Qua the share of Manohar Lal S/o Roshan Lal, who had no heir, a will was executed by said Manohar Lal and his wife in favour of Prakashmal in the year 1985 and based on the said will, the property in question was self acquired property of Prakashmal and continued to remain as such; Prakashmal and his wife had right to transfer the property as per their own wishes and the plaintiff cannot claim any share in the property. Prakashmal and his wife executed a registered will dated 10.8.1990 and inter-alia bequeathed the property to appellants Arvind Chatur and Siddharth Chatur.
It was submitted that the plaintiff has no right in 1/3rd property received by Prakashmal and if she had any objection regarding 1/3rd property distributed to six sons, she has to challenge the decree, which has become final. The land in question was recorded in favour of Smt. Suraj Kanwar, after death of Prakashmal, based on which she has right to transfer the property, after her death, same has been mutated in the name of Arvind Chatur and Siddharth Chatur, who have right to deal with the said property. It was claimed that the plaintiff has no right in the property and therefore, the suit was liable to be dismissed.
(6 of 14) [CMA-2249/2016] In additional plea, it was indicated that the Deputy Tehsildar by order dated 14.12.2003 has upheld the will and appeal filed by the plaintiff and other defendants has been rejected by the District Collector on 19.10.2015. Further one of the defendants Abhay Kumar has purchased the property in the name of his wife from Smt. Suraj Kanwar by registered sale deed dated 15.12.2009 and therefore has accepted the will.
Reply to the application under Order XXXIX, Rule 1 & 2 CPC was also filed and the pleas and prayers made therein were denied and it was prayed that the application be dismissed.
The trial court after hearing the parties, came to the conclusion that the property was received by Prakashmal from his father Roshan Lal / received by him under the will; in the suit filed by Mahendra Kumar, daughters were not impleaded as party, the defendants No.1 to 4 have accepted the plea of the plaintiff and qua the property, which has not been transferred, a bonafide dispute has been raised and the case involves factual and legal issues, which can be decided only after evidence is lead by the parties and therefore, it would be appropriate that the parties are directed not to transfer the property without seeking permission from the Court, so as to avoid unnecessary legal complications and multiplicity of the suits. However, the trial court came to the conclusion that as part of the property was transferred to respondents No.8 to 14 before filing of the suit when Smt. Suraj Kanwar, who was wife of Prakashmal and has received the property under will; excluding the transferred property, 1/8th share of the plaintiff was still available and the transferees were (7 of 14) [CMA-2249/2016] prima facie bonafide purchaser, no injunction can be passed against them and consequently, passed the order as notice herein- before.
Feeling aggrieved, the present appeal has been filed by the appellants-defendants No.5, 6 & 7 It is inter-alia submitted by learned counsel for the appellants that the decree dated 25.4.1990 is not in dispute, whereby based on compromise between the parties, the property left by Roshan Lal Chatur was partitioned. It was submitted that 1/3rd share which was received by Prakashmal under the compromise was the 1/3rd share, which fell in the share of Manohar Lal, who had executed will dated 30.5.1985 in favour of Prakashmal and Smt. Suraj Kanwar. The 1/3rd share, which fell in the share of Prakashmal himself was essentially distributed between six sons i.e. 1/18th each, which is clearly indicated. The said Prakashmal had executed will dated 10.8.1990, specifically referring the share, which was received by him under decree and bequeathed the same to his wife Suraj Kanwar and after death to appellants Arvind Chatur and Siddharth Chatur.
It was submitted that the property in the hands of Prakashmal was self acquired property having received the same from his father Roshan Lal / under will from his uncle Manohar Lal and therefore, the plaintiff cannot claim any right in the said property, which has been further bequeathed by Prakashmal by way of will dated 10.8.1990. It is submitted that the entire suit filed by the plaintiff is baseless, inasmuch as, share is being (8 of 14) [CMA-2249/2016] claimed in the self acquired property of Prakashmal, which now vests in the appellants No.1 & 2.
The trial court, without even adverting to the facts, which were available on record rather even indicating wrong facts apparently out of confusion, and without giving any reason jumped to the conclusion that there were factual and legal issues involved in the matter and restrained the appellants from dealing with the suit property. It was submitted that as the plaintiff has failed to make any kind of prima facie case in her favour, she was not entitled to grant of any injunction whatsoever and therefore, the order impugned deserves to be quashed and set-aside.
Vehemently opposing the submissions made by learned counsel for the appellants, learned counsel for the respondents submitted that the main issue which arise for consideration in the present dispute is the nature of property in the hands of Prakashmal and as to whether the suit property, which is claimed to have been received under will of Manohar Lal has any basis or the said property received on will has already been partitioned amongst the six sons.
It is submitted that the will of 1985 allegedly executed by Manohar Lal, is not part of the record and submissions cannot be made based on documents, which are not on record.
With reference to the property, which is subject matter of the suit as indicated in para 6, it was submitted that a look at the compromise would indicate that the property as indicated in para 6 of the plaint is comprised in para 5 of the said compromise and the said property in hands of Prakashmal cannot be claimed as (9 of 14) [CMA-2249/2016] self acquired property and therefore, the plaintiff has a share in the suit property and the trial court was, therefore, justified in coming to the conclusion that a prima facie case was made out.
It was submitted that the decree, compromise and will etc. are required to be interpreted and the intention of the executor has to be gathered from the material, which may come on record and therefore, at this stage it cannot be said that the plaintiff has no prima facie case.
Reliance was placed on Bharat Aluminium Company v. Kaiser Aluminimum Technical Services Inc. : AIR 2016 SC 1285.
Further submissions were raised that till the final decree is passed, the benefit of amendment in the Hindu Succession Act brought in the year 2005 can be taken on the strength of judgment in the case of Nand Kishore & Ors. v. Smt. Rukmani Devi & Ors. : 2012(1) DNJ(Raj.) 485.
Reliance was also placed on Bhanwar Singh v. Puran & Ors. :
2008 DNJ (SC) 364 and Lad Kanwar v. Shri Ladu & Ors. : 2015(1) RLW 450 (Raj.) to buttress the submissions that even if a case under Order XXXIX, Rule 1 & 2 CPC is not made out, the defendants must be restrained from transferring the suit property.
In the alternative, it is submitted that if it is found that the trial court was not justified in restraining the appellants from dealing with the suit property, at least a direction needs to be given to the appellants / the registering authority under Rule 39 of the Rajasthan Registration Rules, 1955 to specifically put a note about pendency of the present proceedings in any document, (10 of 14) [CMA-2249/2016] which is registered qua the suit property. It was prayed that the appeal be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
At the outset, two basic aspects regarding which there is no dispute between the parties have to be noticed that the property which belonged to Roshan Lal Chatur came to be partitioned by decree dated 25.4.1990 passed by the Additional District Judge No.1, Udaipur in a suit filed by Mahendra Kumar & others and that Prakashmal executed a will dated 10.8.1990 in favour of his wife Smt. Suraj Kanwar and appellants - Arvind Chatur and Siddharth Chatur. The plaintiff for the reasons best known to her, confined her suit to the property which was indicated in para 5 of the compromise entered into between the parties leading to decree dated 25.4.1990 and did not sought any right in properties, which were indicated in para 6 of the compromise, which properties were distributed amongst six sons of Prakashmal in 1/18th share each. The reason apparently is not far to be seen, inasmuch as, the respondents No.2 to 4 have supported the plea of the plaintiff as noticed by the trial court i.e. besides getting the property in terms of the decree dated 25.4.1990, further share in the property which fell in the share of Prakashmal is now being sought by the said respondents No.2 to 4 as well and apparently, the plaintiff, who was not a party to the suit filed by Mahendra Kumar has been prompted to file the suit.
A plea was raised that the will of Manohar Lal executed in the year 1985 is not on record, however, a bare look at the (11 of 14) [CMA-2249/2016] admitted compromise clearly indicates that the same contains a specific recital that the three sons of Roshan Lal i.e. Manohar Lal, Parshavachand and Prakashmal had equal share in the properties of Roshan Lal; Manohar Lal has expired and Manohar Lal & his wife Smt. Teej Kanwar had executed a will in favour of Prakashmal and Smt. Suraj Kanwar and therefore, Prakashmal & his wife were owners of share of Manohar Lal.
The compromise also clearly stipulated that in the suit property Prakashmal and his wife would have 1/3rd share and Prakashmal's six sons would have 1/18th share. The very fact that it was indicated that 'Prakashmal and his wife Smt. Suraj Kanwar' would have 1/3rd share in the property clearly indicates that as Manohar Lal and his wife had executed a will in favour of Prakashmal and his wife Suraj Kanwar; the property indicated in the compromise falling in the share of Prakashmal was share which otherwise fell to the share of Manohar Lal and on account of will, the same vested in Prakashmal and Smt. Suraj Kanwar.
Para 5 clearly indicates the property, which fell in the share of Prakashmal and admittedly is the subject matter of the suit as indicated in para 6 of the plaint. Further a bare look at the will dated 10.8.1990 executed by Prakashmal and Smt. Suraj Kanwar reveals that there is a specific reference of the will executed by Manohar Lal and Smt. Teej Kanwar in favour of Prakashmal and Smt. Suraj Kanwar, the decree of partition based on the compromise and it has been specifically indicated that the share of Manohar Lal Chatur indicated therein (will dated 10.8.1990) is owned by them and the properties indicated therein are also those (12 of 14) [CMA-2249/2016] which form part of para 6 of the plaint and para 5 of the compromise and therefore, the plea sought to be raised / confusion sought to be created that the six sons, who got 1/18th share of the property was in fact the property which came to the share of Prakashmal by way of will of Manohar Lal is ex-facie baseless.
Once prima facie it is seen as discussed herein-before that the subject matter of the suit as indicated in para 6 of the plaint, is the property which was received by Prakashmal / Smt. Suraj Kanwar by way of will of Manohar Lal as indicated in the decree based on compromise passed by the competent court, by no stretch of imagination, it could be said that the said property in the hands of Prakashmal was joint family property so as to create any interest of the plaintiff in the said property.
It is not in dispute that the property in question was self acquired property of Roshan Lal and in terms of the law laid down by the Hon'ble Supreme Court in the case of Uttam vs. Saubhag Singh & Ors. : (2016)4 SCC 68, the property in hands of three sons of Roshan Lal was self acquired, though by way of compromise, 1/18th share came to be given to six sons of Prakashmal. However, so far as the property which fell to the share of Prakashmal under the will is ex-facie his self acquired property and as the property has been dealt with by him and his wife Smt. Suraj Kanwar by executing will dated 10.8.1990, the plaintiff - daughter of Prakashmal cannot prima facie claim any right in the said property.
(13 of 14) [CMA-2249/2016] In view of the above discussion, the finding recorded by the trial court about existence of prima facie case cannot be sustained and the same is, therefore, set-aside.
So far as the judgments cited by learned counsel for the respondents in support of the contention regarding grant of injunction is concerned, in absence of any prima facie case, there is no question of grant of any injunction in favour of the plaintiff. The observations made by this Court in Lad Kanwar (supra) regarding grant of injunction even in a case where no case is made out under Order XXXIX, Rule 1 & 2 CPC cannot be accepted as laying down the principle that in each and every case where an injunction is sought and the plaintiff fails to make out prima facie case, a restrained order must be passed.
Reliance placed on judgments pertaining to interpretation of will also have no application to the facts of the present case.
So far as the prayer made regarding directing the plaintiff or registering authorities to indicate the fact of pendency of the present case is concerned, the said submission made by learned counsel for the appellant has no sanction in law and therefore, there is no reason to pass such a direction in the present case.
Before parting with the case, though well settled, still it is reiterated that the observations made herein-before are prima facie only based on the material available on record and would not effect the ultimate outcome of the trial based on the evidence lead by the parties.
In view of the above discussion, the appeal filed by the appellants is allowed. The order dated 10.8.2016 passed by the (14 of 14) [CMA-2249/2016] trial court is set-aside. The application filed by the respondent No.1 - Smt. Laxmi Mehta is dismissed.
No order as to costs.
(ARUN BHANSALI)J. rm