Gujarat High Court
Vipul Bhanushanker Dwivedi vs Kshama Ajay Dwivedi on 29 August, 2023
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/AO/179/2023 ORDER DATED: 29/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 179 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/APPEAL FROM ORDER NO. 179 of 2023
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VIPUL BHANUSHANKER DWIVEDI
Versus
KSHAMA AJAY DWIVEDI
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Appearance:
MR MB GANDHI, SR. ADV WITH MR CHINMAY M GANDHI(3979) for the
Appellant(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 29/08/2023
ORAL ORDER
1. Challenge in this Appeal from Order, under Order 43 Rule 1(r) of
the Code of Civil Procedure, is to the order dated 07.03.2023,
passed, by the learned Chamber Judge, City Court, Ahmedabad,
who has declined temporary injunction under Order 39 Rule 1 and
2 of the Code of Civil Procedure.
2. The mother of the plaintiff, out of natural love and affection, gifted
the suit property by registered gift deed to daughter-in-law -
respondent - defendant. The registered gift deed executed on
16.12.2020. The age of the donor i.e. late Pushpaben, mother of the
plaintiff at the time of execution of the deed was 84 years old and
was suffering from age related ailments. Before the execution of
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the gift deed, the treating doctor Mr. Nikunj D. Mehta, vide its
certificate dated 07.12.2020, issued a fitness certificate, inter-alia
stating that, "she is mentally fit and is in sound and disposing state
of mind to understand all the acts, actions, considerations and
situations around herself and is able to act and to instruct for all or
any of her wish and will and put a signature and give approval for
the same by herself." The gift deed was signed by the attesting
witnesses, who are real brothers of the deceased. The property
disposed of by gift deed was ownership of the mother of the
plaintiff who died on 04.05.2021. The late Pushpaben purchased
the said property in the year of 1966. The husband of late
Pushpaben Mr. Bhanushankar died on 30.07.2000. Two sons
namely Deepak and Ajay were passed away on 22.06.2015 and
02.02.2020. The respondent defendant is the wife of late Ajay
Dwivedi. Admittedly, late Pushpaben was residing with the
respondent defendant and was under her care till the date of her
date of death. Since 1993, the plaintiff herein being son of late
Pushpaben is residing at the flat property mentioned in para-7 of
the plaint.
In the aforesaid background facts, plaintiff son of late
Pushpaben, being aggrieved with the act of his mother, giving the
property to wife of his brother i.e. daughter-in-law by way of gift
deed, filed a Civil Suit (731 of 2021) for declaration, permanent
injunction and cancellation of the registered gift deed. The suit is
filed mainly on the ground that, the suit property was purchased by
his father from the personal savings and earnings in the name of
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late Pushpaben, as she being housewife, was not having any
independent income and therefore, she had no right, title or interest
to dispose of the family property. The second ground raised in the
plaint is that, the registered gift deed is prima-facie doubtful as, late
Pushpaben was suffering from Parkinson and other disease and was
not able to understand the nature of gift deed. It is further averred
that, the respondent defendant, with an intention to grab the
property, taking undue advantage of the illness of the deceased and
considering her influencing character, got registered the gift deed
and obtained the suit property. It is further averred that, the
plaintiff being a son, was used to visit his mother on every day and
spent considerable time with her. It is further averred that, the
defendant - respondent misappropriated the cash amount lying in
different bank accounts of late deceased and take away the other
movable properties in the nature of shares and securities.
3. In the aforesaid facts, by seeking permanent injunction and
declaration, it is prayed that, the gift deed was registered by
playing fraud upon late Pushpaben and same may be declared null
and void and the respondent defendant be permanently restrained
from transferring, alienating or creating any third party charge in
relation to the suit property either personally or through any
anybody. Along with the suit, the interim injunction pending the
suit below application Exh. 6/7 was sought, restraining the
respondent - defendant from transferring, alienating the suit
property. Originally, the suit filed against the donee of the gift
deed, sister of the plaintiff Manisha and the Society where the
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property is situated. Pending the suit, the defendant no. 2 sister
Manisha has been deleted as a party defendant by the plaintiff.
4. The suit as well as injunction application was contested by the
respondent - defendant. In the written statement, the defendant has
denied the contention, allegations and averments made in the
plaint. It is pleaded that, the plaintiff- son, who is residing
separately since 1993, has no locus-standi to file the present suit
and has suppressed the material facts about the affairs of the family
and has not come with clean hands. It is further pleaded that, the
suit property has been disposed of in her favour by executing a
registered gift deed out of love and affection and at relevant time,
she was mentally fit and was in state sound state of mind. It is
denied that, the late Pushpaben was Benamidar in the suit property.
It is also denied that, the suit property is the family property
purchased by father of the plaintiff. It is alleged that, after death of
Bhanushankar Trivedi, who happened to be the father of the
plaintiff, no claim over the property was being made by the
plaintiff and during the lifetime of Pushpaben also nothing being
challenged about the status of the property and claim of co-
ownership.
5. After considering the rival contentions advanced by counsel for the
respective parties and on perusal of the material placed on record,
the trial Court by its order dated 07.03.2023 has come to the
conclusion, prima-facie, that, the late Pushpaben was residing with
the defendant no.1 and was under her care and out of her love and
affection toward the daughter-in-law, had executed the registered
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gift deed and therefore, considering the peculiar facts and
circumstances of the present case, the three essentials as required to
issuance of temporary injunction are not in favour of the plaintiff
and accordingly, the injunction application has been rejected.
6. Being aggrieved, the original plaintiff - appellant has preferred this
Appeal from Order.
7. Mr. B.M. Gandhi, learned Senior Counsel assisted by Mr. Chinmay
Gandhi, learned advocate appearing for and on behalf of the
appellant submits that, late Pushpaben - mother of the plaintiff was
under influence of defendant no. 1 and was suffering Parkinson
disease and other age related diseases and was confined to bed and
was not in her senses and therefore, prima-facie, the gift deed
executed by her is doubtful as she was not in a position to
understand what act is doing by her and therefore, the gift deed
executed is not valid and legal. That, the property disposed of by
the deceased was not ownership of the deceased as the property
purchased in her name by deceased Bhanushankar Trivedi and she
was Benamidar of the property. In such circumstances, the prayer
was made by way of temporary injunction that, pending the suit,
the defendant may be restrained by transferring, alienating or
creating any charge upon the property or part with the possession
in any manner. That the learned trial Court while dealing with the
prayer of interim injunction by ignoring the aforesaid facts, without
considering the prima-facie case and balance of convenience,
which are in favour of the plaintiff, has rejected the application,
which is contrary to the facts and settled principles of law
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regulating to grant or refuse the equitable relief of injunction.
8. Mr. Gandhi, learned Senior Counsel has submitted that, the learned
trial Court has considered the facts of the written statement filed by
defendant Manishaben, who is not party to the suit as before filing
of written statement by her, she has been deleted as a party
defendant and therefore, on this count, the order seems to be
perverse and arbitrary.
9. Mr. Gandhi, learned Senior Counsel has submitted that, the
plaintiff has obtained the video recording of the process of
registration undertaken by the Sub-Registrar of the documents and
same has been produced to show the inability of the deceased to
execute the gift deed. However, while dealing with the application
of injunction, the learned trial Court did not consider the said
documents nor even discussed about its existence. Thus, therefore,
to substantiate the validity of the gift deed, the material evidence
has been ignored by the trial Court. In support of the said
contention, reliance has been placed on the case of Suvidha
Builders Vs. Dilipsinh Pravinsinh (2004 (3) GCD 2227) to
contend that the passing of order of injunction by ignoring material
documents is not sustainable in law.
10. Raising the aforesaid contentions, learned Senior Counsel
submitted that, the findings on the issue of gift deed being recorded
as if the court is dealing with the final issue of the suit and
therefore, at the interim stage, the court could not have discussed
the final merits of the case and therefore, the discretion has not
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been properly exercised and being exercised arbitrarily,
capriciously by ignoring the settled principles of law and therefore,
he prays that, the case is made out to interfere with the order
impugned and matter may be admitted and interim relief, as sought
under notice of motion Exh. 6/7 be granted, as prayed for.
11. Having heard the learned counsel for the appellant original
plaintiffs and on perusal of the impugned order, the issue arise for
consideration of this Court, whether the order refusing the
temporary injunction calls for interference in the exercise of
appellate jurisdiction?.
12. Before adverting to the contentions, let us refer the settled
principles with regard to grant or refuse of temporary injunction
and power and scope of the Appellate Court to interfere with the
order of granting /refusing the interim injunction. Grant of
temporary injunction is discretionary and the appellate court will
not interfere with the exercise of discretion of court of first instance
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. This aspect has been dealt with by
Hon'ble Supreme Court in the case of Esha Ekta Appartments
CHS Limited & others Vs Municipal Corporation of Mumbai &
another reported in (2012) 4 SCC 689. Para 19 & 20 of the said
judgment are reproduced below:-
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"19. We have considered the respective submissions and
carefully scrutinized the record. The scope of the appellate
Court's power to interfere with an interim order passed by
the Court of first instance has been considered by this Court
in several cases. In Wander Ltd. v. Antox India (P) Ltd
1990 Supp SCC 727, the Court was called upon to consider
the correctness of an order of injunction passed by the
Division Bench of the High Court which had reversed the
order of the learned Single Judge declining the respondent's
prayer for interim relief. This Court set aside the order of the
Division Bench and made the following observations:
"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 that 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."
20. In Skyline Education Institute (India) Pvt. Ltd. v. S.L.
Vaswani (2010) 2 SCC 142, the 3-Judge Bench considered
a somewhat similar question in the context of the refusal of
the trial Court and the High Court to pass an order of
temporary injunction, referred to the judgments in Wander
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Ltd. v. Antox India (P) Ltd (supra), N.R. Dongre v.
Whirlpool Corpn. (1996) 5 SCC 714 and observed:
"The ratio of the abovenoted judgments is that once
the court of first instance exercises its discretion to
grant or refuse to grant relief of temporary injunction
and the said exercise of discretion is based upon
objective consideration of the material placed before
the court and is supported by cogent reasons, the
appellate court will be loath to interfere simply
because on a de novo consideration of the matter it is
possible for the appellate court to form a different
opinion on the issues of prima facie case, balance of
convenience, irreparable injury and equity."
13. In view of the limited scope of the Appellate Court to interfere
with the discretionary order, this Court is of considered view that,
the suit essentially on the ground that the deceased could not have
executed the gift deed as she has no right, title and interest and the
second issue is that the registered gift deed dated 16.12.2020
obtained by the daughter-in-law - defendant no 1 by playing fraud
upon her, as the deceased was suffering from Parkinson and other
diseases and was not in her senses.
14. Having considered the contentions raised herein and having gone
through the paper-book supplied by the appellant and on perusal of
the impugned order, this Court is of considered view that the
parties are belong to one family. Since 1993, the plaintiff son of
late Pushpaben was residing independently in flat property. The
gift property purchased by deceased in the 1966. The husband of
the deceased died in the year 2000. The deceased in her gift deed
clearly mentioned that, out of natural love and affection and on her
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free will, she by her volition giving the property by gift deed. The
gift deed executed on 16.12.2020. The treating doctor Mr. Nikunj
D. Mehta, vide its certificate dated 07.12.2020, issued a fitness
certificate that, she is mentally fit and sound to understand all the
acts and was able to put her signature and approval. The gift deed
signed attested by two independent persons, who are real brothers
of late Pushpaben. In these background facts, this Court is of
considered view that when the registered gift deed is executed,
there is a presumption that, it has been validly executed and onus
of proof would be on plaintiff to rebut the presumption by
adducing evidence at the stage of trial. Thus, the dispute about the
validity of the gift deed raised herein is required to be examined at
the time of trail. So far as facts of present case are concerned, the
competence of the deceased, certified by treating doctor and she
was under the care and aid of the respondent defendant and
indisputably the plaintiff is independently at the other place, the
learned trial Court has rightly come to a conclusion that he does
not find any suspicious circumstances either on the act of execution
of the gift deed or validity of the gift deed.
15. The next contention is that, the property disposed of by the gift
deed was purchased by father of the plaintiff Bhanushankar in the
name of his wife namely late Pushpaben. The dispute of Benami
transaction before amendment 2016 was regulated by the Benami
Transactions (Prohibition Act, 1988). Section 3(1) of the Act says
that no person shall enter into Benami transaction. Section 3(2)
clarifies that, section 3(1) shall not apply to the purchaser of
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property by any person in the name of his wife and it shall be
presumed, unless the contrary is proved, that the said property had
been purchased for the benefit of his wife. The plea of benami
transaction is not sustainable in law on two counts, (i) the property
in question was purchased in the year 1966 and the Act of 1988
came into force thereafter; and (ii) if the allegations assuming for
the sake of arguments, are accepted, then also, the provision of
Section 3(1) is not attracted in the present case, as the property
purchased for the benefit of wife.
16. Mr. Gandhi, learned counsel raised the contention that the written
statement of deleted party has been considered by the trial Court,
which is against the procedure and principle of law. This court do
not find any force in said contention. It is the plaintiff, who has
joined the sister and after service of summon of her and before she
could file written statement, she has been deleted by him as a party
defendant. The reason behind is that, the sister has not supported
the claim of the brother plaintiff. The learned trial Court to show
the conduct of the plaintiff, refer the contention of written
statement.
17. The last contention raised is that the documents having not been
considered by the court concerned. Even before this Court, the
alleged video recording of the registration of the gift deed is not
produced by the appellant. Thus, therefore, prima-facie, it appears
that the documents produced with list Exh. 4 (1 to 35) having been
noted and referred in the order itself by the trial Court. Thus, at the
stage of deciding injunction application, it is not necessary to
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discuss and consider each and every document.
18. For the reasons recorded, considering the lawful possession of
defendant no 1 of the suit property, the restrained as sought cannot
be put on a person holding prima-facie title for the use and
enjoyment of the property and therefore, the learned trial Court has
rightly come to a conclusion that three essentials as required for
issuance of temporary injunction are not in favour of the plaintiff.
19. Thus, this Court do not find any substance in the appeal and at the
admission stage, it deserves to be dismissed and accordingly, it is
hereby dismissed. There shall be no order as to costs. The
observations made hereinabove are tentative in nature and are
confine to decide the present Appeal from Order only.
ORDER IN CIVIL APPLICATION :
In view of the order passed in Appeal from Order, no order in Civil
Application and same is disposed of accordingly.
(ILESH J. VORA,J)
P.S. JOSHI/08/09
