Gujarat High Court
Yatin Chandulal Davda vs Chandulal Purshottamdas Davda on 1 August, 2023
Bench: S.V. Pinto
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C/AO/95/2023 JUDGMENT DATED: 01/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 95 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/APPEAL FROM ORDER NO. 95 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2023
In
R/APPEAL FROM ORDER NO. 95 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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YATIN CHANDULAL DAVDA
Versus
CHANDULAL PURSHOTTAMDAS DAVDA & 3 other(s)
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Appearance:
MR RASESH H PARIKH(3862) for the Appellant(s) No. 1
MR.HEMANG H PARIKH(2628) for the Appellant(s) No. 1
for the Respondent(s) No. 3,3.2
DHARA P BHATT(7530) for the Respondent(s) No. 1
KHYATI A CHUGH(10132) for the Respondent(s) No. 4
MR. ANSHIN DESAI, ADVOCATE WITH MR. PARTH H BHATT(6381) for the
Respondent(s) No. 1,2,3.1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 01/08/2023
Page 1 of 18
Downloaded on : Sat Sep 16 23:50:13 IST 2023
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ORAL JUDGMENT
1. This appeal has been filed by the appellant original plaintiff
against the order passed below Notice of Motion Exh. 6/7 in
Civil Suit No. 564 of 2022 by the learned Chamber Judge,
Court No. 22, City Civil & Sessions Court, Ahmedabad dated
16.3.2023. The parties are referred to as the plaintiff and the
defendants as they stood in the original suit for the sake of
convenience, clarity and brevity.
2. The facts leading to the filing of this appeal may be
summarized as follows: -
2.1 That the plaintiff is the son of the defendant No.1 and Late
Smt. Sarojben Chandulal Davda who passed away on
4.11.2020. The defendant No.2 is the real sister of the
plaintiff, defendant Nos.3/1 and 3/2 are the legal heirs of
Late Amish Chandulal Davda i.e. the brother of the plaintiff
and the defendant No.4 is the mother- in -law of son of the
defendant No.2. The plaintiff has averred in the plaint that
Late Smt. Sarojben Chandulal Davda had a number of
immovable and movable properties and during her life time
she has not executed any Will/ testamentary documents for
her property. That, the plaintiff was served with the notice
under Section 135(D) of the Gujarat Land Revenue Code,
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1879 as mutation entry No. 7938 was moved by the
defendant No.4 for mutating her name in respect of one of
the properties of late Smt.Sarojben Chandulal Davda. It was
then for the first time that the plaintiff learnt that late Smt.
Sarojben Chandulal Davda has executed the Will of all her
properties and the Will was executed on 2.11.2020, two days
prior to her demise. It is the say of the plaintiff that Late Smt.
Sarojben Chandulal Davda did not have the mental capacity
to execute the Will as she was extremely sick and suffering
from Parkinsons and Alzheimers since July, 2020 and was
aged about 85 years at the time of her demise. The plaintiff
has challenged the Will and has also filed the application for
interim injunction urging the Court to restrain the
defendants, their servants, agents, power of attorney holders
or men from acting or representing as beneficiaries of late
Smt. Sarojben Chandulal Davda and also from operating the
bank account/de-mat accounts and/or from transferring or
otherwise dealing with the properties of late Smt. Sarojben
Chandulal Davda in any manner till final disposal of the suit.
3. The summons were duly served to the defendants and the
defendant No.1 appeared and filed written statement at Exh.
46 and defendant Nos.2 to 4 filed the written statement at
Exh. 31.
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3.1 The defendants denied all the contents of the application of
the plaintiff and the defendant No.1 who is the husband of
Late Smt. Sarojben Chandulal Davda has stated that
Bungalow No.17 in Mandar Bungalows where the plaintiff is
residing is the property of his wife late Smt. Sarojben
Chandulal Davda and defendant No.1 and his wife were
residing with the plaintiff. But, in the year 2007, the plaintiff
began harassing the defendants and removed them from his
house in December, 2007. That the defendants went to their
village Koth and the defendant No.2 made arrangements for
a house near her house where, they were residing and the
defendant No.2 and her family as well as the defendant No.4
were looking them. All the defendants have stated that late
Smt.Sarojben Chadulal Davda had executed Will of her own
free Will and she was fully conscious at the time of execution
of the Will and had executed the Will in the presence of
independent witnesses. That, the plaintiff does not have any
prima facie case and the defendants urged the Court to reject
the application of the plaintiff. The defendant Nos. 2 to 4
have in the written statement raised all the contentions as
raised by the defendant No.1 and have urged the Court to
reject the application of the plaintiff.
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4. The learned Chamber Judge considered all the documents
submitted by the parties and the submissions of learned
advocates of both the parties and the citations that had been
relied upon the parties and by an order dated 16.3.2023
rejected the notice of motion Exh. 6/7 of the plaintiff.
5. Being aggrieved and dissatisfied with the said order, the
appellant has preferred the present appeal mainly contending
that the learned trial Court has not considered the
submissions of the appellant and all the submissions and
authorities of the appellant have been ignored by the learned
trial Court. That the social relationship or relationship of the
appellant with his parents is not a germane factor much less
pertinent fact in a suit wherein, the partition of the suit
properties is prayed for and the alleged Will is also
challenged and all the factual and legal contentions have
been ignored by the learned trial Court. Moreover, the
learned trial Court has taken averments made by the
defendant No.1 in the written statement at face value and
has averred that deceased Smt. Sarojben Chandulal Davda
and the defendant No.1 used to stay with the plaintiff at
Mandar Bungalows, which is a matter of evidence and at the
stage of injunction application, no reliance can be placed on
such facts. The appellant has further stated that the
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defendant No.1 is aged 92 years and is unable to take proper
decision and age related issues have affected him and he is
under the complete control of defendant No.2 and her
husband who have huge prejudice against the appellant-
plaintiff. That, the learned trial Court has failed to appreciate
the Medical Certificate produced at Exh. 33/6 dated
20.10.2020 which states that Late Smt. Srojben Chandulal
Davda was unable to move from her bed and the registration
of the Power of Attorney was done at her residence. That, the
signature of Late Smt. Sarojben Chandulal Davda is shaky
and the learned trial Judge has completely ignored the thumb
impression in her 3rd and 4th Will dated 25.7.2020 and
2.11.2020 whereas, late Smt.Sarojben Chandulal Davda was
a teacher and was affixing her signatures in all documents.
That, the Medical Certificate dated 10.6.2022 is issued after
the institution of the suit and considering all these aspects,
the appellant has urged this Court to quash and set aside the
impugned order dated 16.3.2023 and allow the Notice of
Motion at Exh. 6/7 in Civil Suit No.564 of 2022.
6. Heard Mr.Rasesh Parikh, learned advocate for the appellant
and Mr. Anshin Desai, learned Sr.Advocate with Mr. Parth
Bhatt, learned advocate for the respondents.
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7. Mr. Rasesh Parikh, learned advocate for the appellant has
reiterated all the contentions of the appeal memo and has
taken this Court through all the documentary evidence that is
produced before the learned trial. The main contention raised
by the learned advocate for the appellant is that late Smt.
Sarojben Chandulal Davda was suffering from Parkinsons
and Alzheimers and was also bedridden prior to her death
and she could not execute the Will as stated by the
defendants. Learned advocate for the appellant has mainly
challenged the Will and has stated that the Will has been
executed in suspicious circumstances and signature on the
Will is very shaky and a thumb impression has been affixed
on the Will. This facts prima facie prove that the testator
Smt.Sarojben Chandulal Davda was not in a proper frame of
mind and she could not execute the Will reasonably.
Learned advocate for the appellant has vehemently argued
that the defendant No.4 is an unknown person and there
was no reason for late Smt. Sarojeben Chandulal Davda to
bequeath any of her immovable properties to the defendant
No.4. That, the contentions raised by the plaintiff before the
learned trial Court have not been considered in true
perspective and the learned trial Court has gone on moral
ground stating that as the appellant has not taken care of the
parents even though, there is no evidence on record and it is
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matter of evidence has relied on the written statement of the
defendant No.1 and has rejected the Notice of Motion of the
plaintiff.
7.1. Learned advocate for the appellant has relied upon the
following decisions in support of his case.
1. Harish Ishwarbhai Patel Vs. Jatin Ishwarbhai Patel and
others reported in 2022 SCC Online SC 1472.
2. Ramanlal Ambalal Patel Vs. Hina Industries reported in
LAWS (GJH) 1993 266.
3. Mr.Bharpur Singh and others Vs. Shamsher Singh
reported in (2009) 3 SCC 687.
4. Kavita Kanwar Vs. Pamela Mehta and others reported
in (2021) 11 SCC 209.
8. Mr.Anshin Desai, learned Senior Counsel appearing with Mr.
Parth Bhatt, learned advocate for the respondents has mainly
stated that the learned trial Court has properly appreciated
all the evidence in true prospective and has submitted that
the defendant No.1 and late Smt. Sarojben Chandulal Davda
were married in the year 1956 and had three children being
two sons and one daughter. The elder son Amish passed
away in the year 2009 and is survived by his wife and son
and the plaintiff is the younger son and daughter who is the
defendant No.2 in the suit. That, the defendant No.1 is a
doctor by profession and late Smt.Sarojben Chandulal Davda
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was a school teacher and from their joint income as well as
income from agriculture, they purchased many properties
most of them in the name of late Smt. Sarojben Chandulal
Davda. That, they used to reside with the plaintiff at 17,
Mandar Bungalows, Thaltej, Ahmedabad but, the plaintiff
never got along with them and subjected to them ill
treatment. In December, 2007, the plaintiff threw them out
of the house and they went to their native place and the
respondent No.2 who is the daughter of respondent No.1 and
sister of the plaintiff purchased a house for them near her
house and they came to reside in Ahmedabad. That, the
relationship with the plaintiff was strained to such an extent
that they would hardly talk to each other and late Smt.
Sarojben Chandulal Davda executed a fresh Will in super-
session to all the previous Wills on 2.11.2020, whereby, she
bequeathed some properties to the respondent No.2 and the
respondent No4. That prior to her demise late Smt. Sarojben
Chandulal Davda was not suffering from any ailment or
disease or medical condition which affected her mentally in
any manner but, she suffered from certain age related issues
which impacted her mobility to certain extent. That, her
mental faculties were perfectly sound and capable of taking
informed decisions and more particularly about her
monetary affairs and she was fully competent and capable of
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executing her last Will dated 2.11.2020. The learned
advocate has vehemently denied that late Smt. Sarojben
Chandulal Davda was suffering from Parkinsons and
Alzheimers or any mentally related disease and has stated
that the appellant has made frivolous and misleading
allegations regarding her health. That, the order passed by
the learned trial Court is just and proper and no interference
is required by this Court.
8.1. Learned advocate for the respondent has relied upon the
following decision in support of his case.
1. Wander Ltd. and another Vs. Antox India Pvt. Ltd. reported
in 1990 (Supp.) SCC 727.
2. Bariya Rukhiben Shanabhai Vs. Ramjibhai Parshottambhai
Patel decd. reported in 2019 (0) AIJELHC-241052.
3. Jasoda Indralal Vadhva Vs. Hemendrabhai Kakulal Vyas
reported in 2009(0) AIJEL-HC-221341.
8.2 In the case of Wander Ltd. and another Vs. Antox India Pvt.
Ltd. (Supra), it is observed by the Apex Court as under:-
"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.
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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 :
... These principles are well established, but as has been
observed by Viscount Simon in Charles Osention & Co. v.
Johnston the law as to the reversal by a court of appeal of an
order made by a judge below in the exercise of his discretion
is well established, and any difficulty that arises is due only to
the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this
principle.
8.3 In the case of Bariya Rukhiben Shanabhai Vs. Ramjibhai
Parshottambhai Patel decd. (Supra), it is observed by this
Court as under :-
"[18] Additionally, it also appears to the Court that at this stage, the
Court cannot undertake a mini trial while considering the
interlocutory application of injunction since here is the case in
which in paragraph No.8 cogent reasons are assigned by the
Court below which are sufficient enough to sustain the refusal
of injunction at this stage of the proceedings, and therefore, the
order in question is not possible to be construed in any manner
as perverse or suffers from any material irregularity. When that
be so, looking to the scope contained under appellant
jurisdiction, this Court is not inclined to substitute the finding
even if another view is possible. In a matter of injunction at the
appellate stage what would be the scope is well analysed by the
decisions of coordinate Bench as well as by the Apex Court in
which it has been stated that unless and until there appears to
be any perversity or material irregularity ordinarily the view
taken by the Court below cannot be disturbed."
8.4 In the case of Jasoda Indralal Vadhva Vs. Hemendrabhai
Kakulal Vyas(Supra), it is observed by this Court as under:-
"Granting of injunction is a matter of discretion.
Balance of convenience and irreparable injury are triable
issues and are required to be examined and positively found. It
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is settled law that while hearing appeal against discretionary
exercise of powers by the trial judge, while deciding the
application under Order 39, Rule 1 and 2 of C.P.C. the appellate
court is not expected to interfere with the discretion, unless it is
shown that power has been exercised arbitrarily, capriciously or
in perversity and against the settled principles of law. Appellate
court is not expected to reassess the material and to reach a
conclusion different than the one reached by the court below.
If the one reached by the court was reasonably a plausible view,
appellate court would normally not be justified in interfering
with the order. But, if the exercise of discretion in appeal is
only on the ground that the matter has not received
consideration at trial court stage, then it would have come to a
different conclusion and the appellate court can
interfere with the exercise of discretion of trial court
provided it is satisfied about prima facie strong case, balance of
convenience and extreme urgency."
9. In view of the above settled principles of law, this Court has
very limited power to interfere with the order passed by the
learned trial Court and only in exceptional circumstances,
the Appellate Court can interfere with the discretionary order
passed by the learned trial Court. The Appellate Court
cannot reevaluate the entire evidence and arrive at a
conclusion contrary to the conclusion arrived at by the
learned trial Court unless the said order is found to be
invalid, illegal, arbitrary, perverse or contrary to the settled
principles of law. Keeping in mind the above principles, this
Court has only to see as to whether the learned trial Court
has committed any error in passing the impugned order. At
the same time, this Court is also required to see whether the
cardinal principles of law governing the injunction i.e. prima
facie case, balance of convenience and irreparable loss are
satisfied or not in passing the order or not ?
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10. From the record and submissions of the learned advocates for
the respective parties, the plaintiff has mainly challenged the
Will that has been executed by late Smt. Sarojben Chandulal
Davda and the plaintiff has stated that she was not in proper
frame of mind and was suffering from Parkinsons and
Alzheimers and hence, could not execute any Will due to her
ill health and the fact that the Will is a suspicious Will as it
was executed just two days prior to her demise. The plaintiff
has also alleged that the Will is forged and concocted and
also that the Will is attested by two witnesses who are
employees and ex-employees of the defendant No.2 and they
are not known to late Smt. Sarojben Chandulal Davda. That,
the plaintiff and the defendant Nos. 3/1 and 3/2 who are
the wife and children of late Mr. Amish Chandulal Davda,
son of late Smt. Sarojben Chandulal Davda have been left-
out from the Will and this also shows suspicious
circumstances. The defendant No.1 admittedly the husband
of late Smt. Sarojben Chandulal Davda is a doctor by
profession and he has raised necessary contentions denying
all the avements of the plaintiff. The defendants have also
produced the medical certificate of late Smt. Sarojben
Chandulal Davda dated 20.10.2020 and 10.6.2020 and as
per the certificate of Dr.Kuntal Shah, he has stated that late
Smt. Sarojben Chandulal Davda was under his treatment for
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diabetes and other co.morbidities and bedridden and could
not go out of the bed anywhere and has also certified that she
was not suffering from Parkinsons or Alzheimers disease.
10.1 The learned advocate for the appellant has relied upon the
decision of the Hon'ble Apex Court in the case of
Mr.Bharpur Singh and others Vs. Shamsher Singh (Supra)
wherein, the Hon'ble Apex Court has observed as under:-
"17. Suspicious circumstances like the following may be found
to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and
doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very
feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like
exclusion of or absence of adequate provisions for
the natural heirs without any reason.
iv. The dispositions may not appear to be the result of
the testator's free will and mind.
v. The propounder takes a prominent part in the
execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts."
10.2 The learned advocate for the appellant has also relied upon
the decision of the Apex Court rendered in the case of Kavita
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Kanwar Vs. Pamela Mehta and others, wherein, it is observed
as under:-
24.8. We need not multiply the references to all and other decisions
cited at the Bar, which essentially proceed on the aforesaid
principles while applying the same in the given set of facts and
circumstances. Suffice would be to point out that in a recent
decision in Civil Appeal No. 6076 of 2009: Shivakumar & Ors.
v. Sharanabasppa & Ors., decided on 24.04.2020, this Court,
after traversing through the relevant decisions, has summarised
the principles governing the adjudicatory process concerning
proof of a Will as follows:-
"1. Ordinarily, a Will has to be proved like any other
document; the test to be applied being the usual test of
the satisfaction of the prudent mind. Alike the principles
governing the proof of other documents, in the case of
Will too, the proof with mathematical accuracy is not to
be insisted upon.
2. Since as per Section 63 of the Succession Act, a Will is
required to be attested, it cannot be used as evidence
until at least one attesting witness has been called for the
purpose of proving its execution, if there be an attesting
witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the
death of the testator and, therefore, the maker thereof is
not available for deposing about the circumstances in
which the same was executed. This introduces an
element of solemnity in the decision of the question as to
whether the document propounded is the last Will of the
testator. The initial onus, naturally, lies on the
propounder but the same can be taken to have been
primarily discharged on proof of the essential facts which
go into the making of a Will.
4. The case in which the execution of the Will is
surrounded by suspicious circumstances stands on a
different footing. The presence of suspicious
circumstances makes the onus heavier on the
propounder and, therefore, in cases where the
circumstances attendant upon the execution of the
document give rise to suspicion, the propounder must
remove all legitimate suspicions before the document can
be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or
alleges fraud, undue influence, coercion et cetera in
regard to the execution of the Will, such pleas have to be
proved by him, but even in the absence of such pleas, the
very circumstances surrounding the execution of the
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Will may give rise to the doubt or as to whether the Will
had indeed been executed by the testator and/or as to
whether the testator was acting of his own free will. In
such eventuality, it is again a part of the initial onus of
the propounder to remove all reasonable doubts in the
matter.
11. In the facts and circumstance of the case, the appellant has
alleged the suspicious circumstances to have shrouded the
execution of the Will and has contended that as the signature
of the testator is very shaky and doubtful and the condition of
the testator's mind was very feeble and debilitated at the
relevant time and the issue has been raised that the execution
of Will is allegedly shrouded in suspicion circumstances, but
all these allegations raised by the plaintiff have been prima
facie negatived by the defendants though documentary
evidence in the form of the doctor's certificates and other
documents on record. The learned trial Court has considered
all the documents produced by the parties in a prima facie
way and has observed that the acceptance or rejection of the
Will with regard to due execution would be ultimately
decided during the course of trial after leading evidence and
prima facie it appears that the plaintiff has not been able to
raise any prima facie contentions about the suspicious
circumstances of the Will. As per the principles settled by the
Apex Court in Wander Ltd. (supra) there is nothing in the
order of the learned Trial Judge to come to a conclusion that
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the discretion has been exercised arbitrarily or capriciously
or perversely or that the learned trial Court has ignored the
settled principles of law regulating the grant or refusal of the
injunction. The learned trial Court has prima facie
appreciated all the evidence in its proper perspective and all
the ingredients of prima facie case, balance of convenience
and irreparable loss have been considered in detail.
Therefore, in the considered opinion of this Court the
impugned order passed by the learned trial Court is found to
be just and proper and no illegality or perversity is
committed by the learned trial Court while passing the
impugned order.
12. Under the circumstances, the present Appeal from Order fails
and the same is hereby dismissed. The order dated 16.3.2023
passed below notice of motion Exhs. 6/7 in Civil Suit No.
564 of 2022 by the learned Chamber Judge, Court No.22,
City Civil & Sessions Court, Ahmedabad is hereby confirmed.
There shall be no order as to costs.
13 It is clarified that these observations are tentative and the
learned trial Court shall not be influenced by any observation
made in this order or the impugned order and decide the suit
on merits as per the evidence adduced by the parties on
record.
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14. In view of the above, the Civil Applications do not survive
and the same stand disposed of accordingly.
Sd/-
(S. V. PINTO, J)
F.S.KAZI.....
