Bijay Kumar Jhunjhunwala vs Jaya Jhunjhunwala & Ors
2021 Latest Caselaw 3 Cal/2

                                      1


                        Old GA No. 2448 of 2019
                            GA No. 1 of 2019
                          CS No. 238 of 2019
                  IN THE HIGH COURT AT CALCUTTA
                   Ordinary Original Civil Jurisdiction
                             Original Side
                      Bijay Kumar Jhunjhunwala
                                   v.
                       Jaya Jhunjhunwala & Ors.


For the Petitioner            : Mr. Surajit Nath Mitra, Sr. Advocate
                                Mr. Rajarshi Dutta, Advocate
                                Mr. Deepak Jain, Advocate

For the Respondent            : Mr. K. Thakker, Advocate

No. 1 & 2                       Mr. Ratul Das, Advocate
                                Mr. Aditya Garodia, Advocate

For the Respondent No. 3 : Mr. Mainak Bose, Advocate Mr. Rishab Karnani, Advocate Mr. Tanmoy Roy, Advocate

Hearing concluded on : December 21, 2020 Judgment on : January 5, 2021

DEBANGSU BASAK, J. :-

1. In a suit for declaration and injunction in relation to a deed of

conveyance of an immovable property, the plaintiff has sought interim

relief in this application.

2. Learned Senior Advocate appearing for the plaintiff has submitted

that, one Smt. Rukmani Devi and Smt. Suwati Devi had jointly

purchased an immovable property lying and situate at premises No.

228 A, Chittaranjan Avenue, Kolkata - 700 006 on May 8, 1940. By

reason thereof they had become the joint owner of such property. Such

owners had constructed a five-storied building thereon. On May 14,

1948, Smt. Suwati Devi and her husband adopted the plaintiff as their

son. Such adoption had been recorded by a registered deed dated

October 14, 1950. The husband of Smt. Suwati Devi died on October

14, 1950 leaving behind his last registered will and testament dated

October 14, 1950. On May 10, 1978, Smt. Suwati Devi had died leaving

behind her registered will and testament dated October 14, 1950. The

right, title and interest of Smt. Suwati Devi in respect of the immovable

property concerned had devolved upon the plaintiff. During the lifetime

of Smt. Suwati Devi, the other co-owner of the immovable property,

Smt. Rukmani Devi had transferred her half share in the property

concerned in favour of Smt. Krishni Jhunjhunwala by registered deed of

gift dated September 29, 1953. Smt. Krishni Jhunjhunwala had died on

March 13, 1980 leaving behind a will dated January 15, 1980. By such

will, Smt. Krishni Jhunjhunwala had bequeathed her undivided one-

half share in respect of the property concerned in favour of the wife of

her grandson Sri Sharad Jhunjhunwala. Probate in respect of the will of

Smt. Krishni Jhunjhunwala had been granted on September 14, 1998.

By a registered deed dated May 21, 2009, executor of the will of Smt.

Krishni Jhunjhunwala transferred the one-half share in the property

concerned to the first defendant. Consequently, the plaintiff and the

first defendant had become joint owners of the immovable property

concerned each being entitled to half share therein.

3. The plaintiff and the first defendant had entered into an agreement

dated May 31, 2000, partitioning the said property. The plaintiff and

the first defendant had been enjoying their respective portions of such

immovable property peacefully. In April 2017 the plaintiff come to learn

that Kotak Mahindra Bank Limited had initiated proceedings under the

Securitisation and Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002 in respect of the property. Such secured

creditor had issued a possession notice. The plaintiff had protested

against such actions taken by the secured creditor. The secured

creditor had not responded to the letters written on behalf of the

plaintiff. Since the secured creditor had not taken any steps, the

plaintiff did not avail of his remedies under the Act of 2002.

4. The third defendant approached the plaintiff with a request for

attornment of several tenancies in February 2018. The plaintiff had

permitted the third defendant to receive and realise rent. However, the

third defendant failed to honour the agreement. Thereafter, the plaintiff

had learnt that, the first and the second defendant representing

themselves to be joint owners of the immovable property executed and

registered a deed of conveyance dated September 4, 2018. By such

registered deed of conveyance, the first and the second defendant had

purported to sell the entirety of the said property in favour of the third

defendant.

5. Learned Senior Advocate appearing for the plaintiff has drawn the

attention of the Court to the recitals in the deed of conveyance dated

September 4, 2018. He has submitted that, the recitals are false and

contrary to the records. The first and the second defendant had claimed

in the recitals that they were the joint owners of the property concerned

when in fact they were not so. According to him, the right, title and

interest of Smt. Suwati Devi since deceased in respect of the immovable

property concerned could not have been transferred by the deed of

conveyance dated September 4, 2018 to the third defendant. The third

defendant therefore cannot claim itself to be the sole and absolute

owner of the immovable property concerned by virtue of the deed of

conveyance dated September 4, 2018. He has submitted that, pending

adjudication of the instant suit, the immovable property concerned

should be protected and the defendants be restrained from creating any

further right, title and interest in respect of such property in favour of

any third party.

6. Learned Advocate appearing for the defendant Nos. 1 and 2 has

submitted that, the plaintiff was well aware of the transactions had by

and between the first and second defendants on one part and the third

defendant on the other. He has referred to the letters exchanged

between the parties. The plaintiff had agreed to sell his share to the

third defendant obtained adequate compensation for the same. He has

drawn the attention of the Court to the money receipt granted by the

plaintiff. The plaintiff has not been able to explain the money receipt in

either the petition or the affidavit-in-reply. The contents of the money

receipt demolishes the claim of the plaintiff that the money had been

received by the plaintiff on account of attornment of tenancy. He has

submitted that, the plaintiff had received adequate and proper

consideration for sale of his share in respect of the property concerned.

7. Learned Advocate appearing for the first and second defendants has

drawn the attention of the Court to the averments made by the plaintiff

in its petition as well as in the affidavit-in-reply. He has submitted that,

the plaintiff is not the sole heir and legal representative of Smt. Suwati

Devi since deceased. He has submitted that, Smt. Suwati Devi had

three daughters whom the plaintiff has conveniently not impleaded in

the instant suit. The plaintiff has come with unclean hands and has

suppressed material facts from the Court. He has relied upon 2013

Volume 2 Supreme Court Cases page 398 (Kishore Samrite v. State

of Uttar Pradesh & Ors.) and submitted that, when a party comes to

Court with unclean hands, such party is not entitled to relief far less an

interim relief.

8. Learned Advocate appearing for the first and second defendants has

drawn the attention of the Court to the order dated November 15, 2019

passed in the instant suit by which, the Court had refused to pass an

ad interim order of injunction in favour of the plaintiff. He has

submitted that, none of the parties to the suit had preferred any appeal

therefrom. He has submitted that, on the self-same reasoning as that of

the refusal of the ad interim order, no interim order need be passed in

favour of the plaintiff.

9. Learned Advocate appearing for the third defendant has largely

adopted the submissions advanced on behalf of the first and second

defendants. In addition, he has submitted that, the plaintiff has made

false statements on oath knowing such statements to be false. He has

drawn the attention of the Court to the averments of the respective

parties as also the documents annexed to the petition and the affidavits

filed in the instant proceeding. He has submitted that, the plaintiff has

not obtain probate of the will of Smt. Suwati Devi since deceased. The

plaintiff has no right through such unprobated will. According to him,

the plaintiff is not entitled to any interim relief.

10. In the instant suit, the plaintiff has assailed a registered deed of

conveyance dated September 4, 2018. By such deed of conveyance, the

first and the second defendant have sold and conveyed an immovable

property being promises number 228 A, Chittaranjan Avenue, Kolkata

700006 in favour of the third defendant for valuable consideration. The

plaintiff has claimed one half shares in such immovable property.

11. On completion of affidavits in the interim application filed by

the plaintiff, it appears prima facie that, Smt. Suwati Devi and Smt.

Rukmani Devi had jointly purchased the immovable property for

valuable consideration by a registered deed of conveyance dated May 8,

1940. They had built a five storied building on such premises.

Consequently, they had become joint owners, with each of them having

one half shares in such property. Smt. Rukmini Devi had transferred

her undivided one half shares in such property in favour of Smt.

Krishni Devi Jhunjhunwala by a registered deed of gift dated September

29, 1953.

12. Smt. Suwati Devi had died on May 10, 1978. Her husband Sri

JhabarmalJhunjhunwala had predeceased her. Both had left behind

their respective last will and testament both dated October 14, 1950.

The plaintiff has claimed himself to be the sole heir and legal

representative of Smt. Suwati Devi since deceased. The plaintiff has

claimed that by virtue of the two wills of his deceased parents who had

adopted him, he is the sole and absolute owner of one half shares of

Smt. Suwati Devi in such property. The defendants have contested such

claim of the plaintiff. According to the defendants, Smt. Suwati Devi

had three daughters. The plaintiff has not added such daughters as

parties to the suit. Such daughters have inherited the property

concerned as the plaintiff did not obtain probate of the Wills spoken of

by the plaintiff. According to the defendants, the plaintiff cannot be

treated as the sole and absolute heir of Smt. Suwati Devi, since

deceased. The defendants have therefore claimed that, the plaintiff has

come with unclean hands and is not entitled to any interim relief.

13. In Kishore Samrite (supra) the Supreme Court has considered

the issue of abuse of process of court. It has held as follows: -

"32. The cases of abuse of process of court and such allied matters have been arising before the courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:

32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts and came to the courts with "unclean hands". Courts have held that such litigants are neither entitled to be heard on the merits of the case nor are entitled to any relief.

32.2. The people, who approach the court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant. 32.3. The obligation to approach the court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.

32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have overshadowed the old ethos of litigative values for small gains.

32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.

32.6. The court must ensure that its process is not abused and in order to prevent abuse of process of court, it would be justified even in insisting on furnishing of security and in

cases of serious abuse, the court would be duty-bound to impose heavy costs.

32.7. Wherever a public interest is invoked, the court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.

32.8. The court, especially the Supreme Court, has to maintain the strictest vigilance over the abuse of process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the court should endure to take cases where the justice of the lis well justifies it. (Refer: Dalip Singh v. State of U.P. [(2010) 2 SCC 114 : (2010) 1 SCC (Civ) 324] , Amar Singh v. Union of India [(2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560] and State of Uttaranchal v. Balwant Singh Chaufal [(2010) 3 SCC 402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807] .

14. The parties to the suit have contesting claims with regard to the

entitlement of the plaintiff so far as the immovable property involved in

the suit is concerned. According to the plaintiff, he has one half shares

in the property concerned while the defendants claim that, there are

other owners namely the daughters of Smt. Suwati Devi who also have

shares in the property. Which of the rival claims is correct have to be

decided after affording the parties to the suit an opportunity to lead

evidence. Prima facie, it appears that, the plaintiff has a claim in

respect of the immovable property concerned. It may be one half shares

as claimed by the plaintiff or it might be something less than such

claim. However, the contention of the plaintiff that, the right, title and

interest of Smt. Suwati Devi, since deceased, did not devolve upon the

defendants by virtue of the data of conveyance dated September 4,

2018 has some substance.

15. The defendants have executed the deed of conveyance dated

September 4, 2018 amongst themselves. Even taking the version of the

defendants as to the heirs and legal representatives of Smt. Suwati Devi

since deceased to be correct, then also, none of such heirs and legal

representatives of such deceased had executed any deed of conveyance

in favour of the third defendant in respect of the immovable property

concerned or had joined the first and the second defendant in the deed

of conveyance dated September 4, 2018. In absence of a registered deed

of conveyance, no title in respect of an immovable property passes.

Therefore, the third defendant, prima facie, cannot justifiably claim

itself to be the owner of the share owned by Smt. Suwati Devi, since

deceased in respect of the property concerned.

16. The principles of abuse of process as has been noted in Kishore

Samrite (supra) are not attracted to the facts of the present case. It

cannot be said that, the plaintiff has come with unclean hands. The

plaintiff has a claim in respect of an immovable property. The

defendants have disputed the extent of claim of the plaintiff in respect

of the property concerned. Such contesting claims, ipso facto, at the

interim stage, cannot lead one to infer that the plaintiff has come with

unclean hands to Court or is guilty of abuse of process of Court.

17. The plaintiff must be afforded an opportunity to establish his

extent of his share in the immovable property at the trial of the suit. At

the prima facie stage, it cannot be said that, in the facts of the present

case that, the plaintiff has no right, title and interest in respect of the

immovable property concerned. The extent of his right title and interest

in respect of the immovable property has to be decided after affording

the parties to the suit an opportunity to lead evidence. The plaintiff has

claimed one half shares in respect of the immovable property concerned

by virtue of two registered wills of which, the plaintiff has not obtained

probate. The version of the plaintiff may or may not be accepted by the

court at trial. It is by reason of such claim, the plaintiff has not

impleaded the three daughters of Smt. Suwati Devi since deceased as

parties to the suit. Again, at this stage, it cannot be said that the suit

must fail by reason of non-joinder of necessary parties. Therefore, in

my view, it cannot be said that, the plaintiff has come with unclean

hands or has suppressed material facts before the court.

18. In the registered deed of conveyance dated September 4, 2018,

the defendants have narrated that, a large portion of the immovable

property concerned had been granted on tenancy in favour of the

plaintiff with the right to sublet and that, upon negotiations the plaintiff

had agreed to attorn his tenancy rights in favour of the third defendant

upon receipt of a sum of Rs. 1,28,70,000 with further right to the third

defendant to collect rents from the sub tenants. The defendants have

relied upon a money receipt dated March 22, 2018 issued by the

plaintiff. The money receipt shows that the plaintiff had received a sum

of Rs. 1,30,00,000 from the third defendant. According to the

defendants, the plaintiff had received such sums as a consideration for

transfer of his right, title and interest in respect of the immovable

property concerned in favour of the third defendant. The plaintiff has a

different version with regard to the money receipt and the money

received by the plaintiff from the third defendant. Receipt of money by

the plaintiff from the third defendant has however not been denied.

19. The parties have therefore raised issues with regard to the

immovable property concerned. The extent of the right, title and interest

of the plaintiff in respect of the immovable property concerned should

be adjudicated after affording the parties an opportunity to lead of

evidence in the suit. As has been noted herein, none of the defendants

have produced any registered document to establish that, the right, title

and interest of the plaintiff or of Smt. Suwati Devi since deceased in

respect of the immovable property concerned stood transferred to and

vested with the third defendant. Payments by the third defendant to the

plaintiff per se will not invest the third defendant with clean title of the

plaintiff or Smt. Suwati Devi since deceased in respect of the property

concerned. None of the parties have denied that Smt. Suwati Devi since

deceased had one half shares in the immovable property concerned. In

absence of the defendants producing any valid registered document in

respect of such one half shares in the property concerned, the inference

that, the plaintiff has made out a prima facie case to go to trial can be

drawn.

20. At the ad interim stage, the court had by an order dated

November 15, 2019 decided not to grant any ad interim order of

injunction as prayed for by the plaintiff. The order dated November 15,

2019 refusing to grant ad interim order of injunction in favour of the

plaintiff, had proceeded on the basis of the materials then produced

before the court. On completion of affidavits, the parties have disclosed

various documents on record which were not before the court on

November 15, 2019. At the hearing of the injunction petition, despite an

ad interim order of injunction being refused, the court hearing the

injunction petition is entitled to consider the entirety of the materials

produced before it and arrive at a finding on the basis of such

materials. As has been noted, the parties have disclosed for the

materials on affidavits, which were not there before the court when the

order dated November 15, 2019 was passed.

21. The materials on record have established that, the balance of

convenience and inconvenience as also the issue of irreparable loss are

in favour of the plaintiff. The plaintiff has traced his title to the

immovable property concerned through Smt. Suwati Devi, since

deceased. As has been noted, the parties have not produced any

material on record to establish that, the shares held by Smt. Suwati

Devi, since deceased stood transferred in favour of the third defendant

by a registered deed of conveyance. The shares held by Smt. Suwati

Devi, since deceased, remain with the heirs and legal representatives of

such deceased. The defendants have questioned the claim of the

plaintiff that he is the sole and absolute heir and legal representative of

such deceased. Such an issue has to be decided. Till the time, such

issue as well as other issues raised in the suit are decided, it is

appropriate that, the immovable property concerned is protected.

Consequently, it is appropriate that, no third party rights are allowed to

be created in respect of the one half shares held by Smt. Suwati Devi,

since deceased in the immovable property concerned.

22. The defendants have contended that, the plaintiff is guilty of

suppression of material facts and therefore not entitled to any relief. At

the hearing of the injunction petition, when the parties have availed of

the opportunity to file their respective affidavits, and have produced

documents in support of their respective contentions, I am not minded

to agree with the contention of the defendants that, the plaintiff is guilty

of suppression of material facts. The defendants had the opportunity to

disprove the case of the plaintiff on affidavit. The court has to form an

opinion on the basis of the materials produced.

23. In view of the discussions above, there will be an order of

injunction restraining the defendants from disposing of or encumbering

or transferring or creating any right in respect of the one half shares of

Smt. Suwati Devi, since deceased in respect of the immovable property

concerned, till the disposal of the suit.

24. The conduct of the plaintiff has to be taken into consideration.

The plaintiff has admittedly received a sum of Rs. 1,30,00,000 from the

third defendant. Such sum has to be protected also. In such

circumstances, the plaintiff shall deposit the sum of Rs. 1,30,00,000

with the Registrar Original Side within seven days from date. In the

event of default of the plaintiff doing so, the order of injunction as

against the defendants shall stand vacated without further reference to

the Court. The plaintiff through its advocates on record shall inform the

defendants through their Advocate-on-Record as to the deposit of the

sum with the Registrar Original Side.

25. Old GA 2448 of 2019 new GA 1 of 2019 in CS 238 of 2019

stands disposed of accordingly. No order as to costs.

[DEBANGSU BASAK, J.]

Later :

Learned Advocate appearing for the first and second defendant has prayed for stay of operation of the judgment and order. Such prayer has been considered and rejected.

[DEBANGSU BASAK, J.]