Karnataka High Court
Shri S Mahavirchand Dhariwal vs Shri Ashok S Dhariwal on 11 July, 2025
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MFA No. 4052 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 4052 OF 2020 (CPC)
BETWEEN:
1. SHRI. S. MAHAVIRCHAND DHARIWAL
S/O LATE P. SUGANCHAND DHARIWAL
AGED ABOUT 63 YEARS
RESIDING AT NO.355, 1ST CROSS ROAD
ROBORTSONPET
KOLAR GOLD FIELDS-563 122
2. SMT. NIRMALA
W/O SHRI. S. MAHAVIRCHAND DHARIWAL
AGED ABOUT 63 YEARS
RESIDING at NO.355, 1ST CROSS ROAD
ROBORTSONPET
KOLAR GOLD FIELDS-563 122
...APPELLANTS
(BY SMT. SRUTI CHAGANTI, ADVOCATE FOR
SRI. SHEKHAR BADIGER, ADVOCATE)
Digitally signed by
ANJALI M AND:
Location: High
Court of Karnataka
SHRI. ASHOK S. DHARIWAL
S/O LATE P. SUGANCHAND DHARIWAL
AGED ABOUT 67 YEARS
RESIDING AT NO.7, SHRAVANI PRIDE
MARKET ROAD, GANDHI BAZAAR
BANGALORE 560 004
...RESPONDENT
(BY SRI. P.D. SURANA, ADVOCATE )
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF CPC,
AGAINST THE ORDER DATED 14.09.2020 PASSED ON I.A.NO.1
IN OS.NO. 132/2018 ON THE FILE OF THE XLIII ADDITIONAL
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MFA No. 4052 of 2020
HC-KAR
CITY CIVIL JUDGE, BENGALURU, DISMISSING THE I.A. NO.1
FILED UNDER ORDER 39 RULES 1 AND 2 OF CPC.
THIS MFA HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
This Misc.First Appeal is preferred by the appellants
under Order 43 Rule 1(R) of CPC, of 1908 being aggrieved
by the order dated 14.09.2020 passed by the XLIII
Additional City Civil and Sessions Judge, Bengaluru (CCH
No.44) in OS No.132/2018, whereby, the learned trial
Court dismissed IA.No.1 filed under Order 39 Rules 1 and
2 CPC seeking temporary injunction against respondent-
defendant.
2. The appellants herein are the plaintiffs in the
suit who have sought cancellation of four registered gift
deeds executed on 5.8.2014. Plaintiff no.2 who originally
owned Schedule A and 1/4th undivided share in schedule B-
1 property had gifted her rights to plaintiff no.1., i.e. her
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husband, who in turn gifted same to the defendant, his
brother. The plaintiff's claim is that, the said transactions
were not gratuitous but, formed part of a single transaction
involving reciprocal promises which included a payment of
Rs.25 lakhs and a promise of allotment of 10,000 sq.ft. of
built up area in a future joint development project allegedly
proposed by the defendant.
3. According to the plaintiffs, the defendant
persuaded them to execute the gift deeds as a means to
facilitate khata amalgamation necessary for development.
It is further alleged that, the plaintiffs were later shocked
to receive summons in OS no.5286/17 filed by the
defendant claiming repayment of Rs.25 lakhs., portraying
the amount as a loan rather than part of development
consideration on alleged fraud, misrepresentation and
unjust enrichment, the plaintiffs sought cancellation of gift
deeds and a temporary injunction restraining the def. from
alienating or encumbering subject properties pending
disposal of the suit.
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4. The learned trial Court, after a detailed
examination of the pleadings, documents and legal
principles, dismissed the application for temporary
injunction. Being aggrieved by the same, now the
appellants are before this Court. Having heard the
arguments and on perusal of records, upon re-appreciation
of the entire materials, this Court finds no reason to
interfere with a well considered findings of the trial Court
for the following reasons:
Learned counsel for the appellant though relied
upon the plaint averments, documents and pointed out
certain observations, made by the trial Court in the
impugned order, but, failed to convince this Court that,
what is the fault being committed by the trial court in
passing the impugned order. Repeatedly, it is submitted
by the appellant-plaintiff that, though prayer nos. 1 and 2
if not maintainable, the other prays are maintainable and
the trial court has committed mistake with regard to
reciprocal promises made by the defendant and ultimately
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false suit portraying the amount as the amount paid by
him and sought for recovery of the same. To that effect,
he has filed a separate suit. On receipt of the suit
summons, the plaintiffs were shocked with regard to the
pleadings made by the defendant in the said suit.
Therefore, to protect the interest of the plaintiffs in the
schedule property it is necessary to grant the interim
order.
5. As against this submission, the learned Sri
P.D.Surana, counsel for the respondents supported the
reasons assigned by the trial Court while passing the
impugned order. He submits that, when equitable remedy
is sought by the plaintiff, the plaintiff has to comply the
components of grant of temporary injunction. None of the
ingredients with regard to grant of temporary injunction
are fulfilled by the plaintiffs with acceptable evidence.
Therefore, he would submit that, this appeal is devoid of
any merits and prays to dismiss the appeal.
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6. At the outset, this Court notes that, the relief of
temporary injunction is an equitable remedy governed by
the three cardinal principles i.e. no.i) the existence of
prima facie case, ii) Balance of convenience and iii)
Irreparable injuries. These are not to be decided in abstract
but, on the strength of the pleadings, documents and the
probabilities. In the present case, the plaintiffs have failed
to satisfy any of these three limbs warranting such relief.
7. The registered gift deeds are dated 5.8.2014
stand undisputed with regard to their execution. These are
solemn documents duly registered and executed without
any recitals indicating conditionality or dependence upon a
future contract. Section 122 of Transfer of Property Act
defines a `Gift' as transfer of property made voluntarily
and without consideration. The deeds in question explicitly
mention love and affection as a motive and categorically
declare the gifts to be unconditional. There is no mention of
either Rs.25 lakhs or 10,000 sq.ft. built up area in the said
deeds. Courts are reluctant to entertain extraneous oral
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agreements or unilateral assertions to alter the terms of
such solemn registered documents unless fraud is clearly
established.
8. From the record so placed by the plaintiff, it is
very much clear that, they seek to create a contractual
framework post facto by contending that, the gifts were
reciprocal promises as defined under Section 2(f) of Indian
Contract Act. However, the law does not permit a gift
which, by nature is without consideration, to be treated as
consideration for another promise unless the entire
agreement is properly documented and registered. The
plaintiffs have failed to produce any memorandum of
understanding, agreement to develop or any corresponding
evidencing mutual obligations. The entire arguments rests
upon tenuous claim of inducement which is unsubstantiated
by written record.
9. The allegation of fraud while serious requires
precise pleadings and cogent evidence even at the prima
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facie stage. The mere fact that, a recovery suit was filed by
the def. cannot by itself, establish fraud. The transaction
becomes suspect, but, suspicion alone is not evidence. The
trial Court rightly noted that, there was no specific material
to show that, the defendant at the time of execution had
no intention of fulfilling the promises. Courts have
consistently held that, fraudulent intent at the inception
must be clearly shown: it cannot be presumed.
10. Even on reading the plaint averments and
prayer, the plaint so framed also suffers from procedural
inconsistencies. The plaintiffs have sought cancellation of
gift deeds executed by plaintiff no.2 in favour of plaintiff
no.1 who is co-plaintiff. A plaintiff cannot ordinarily seek
relief against another co-plaintiff in the same suit without
proper cause restructuring and without converting the suit
into one involving adversarial claims between co-plaintiffs.
The trial Court was correct in noting that such prayers are
not maintainable. Further, plaintiff no.2 has sought for
cancellation of deeds executed by plaintiff no.1 in favour of
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defendant despite being a stranger to that transaction. This
again is legally unsustainable as no person who is not a
party to a contract can seek its cancellation, unless it
directly affects their rights.
11. Another glaring defect in the suit is non-joinder
of necessary parties. The suit schedule B-1 property in
which the plaintiff's claim a share, is jointly owned by
multiple co-owners including the defendant wife and one
Pushpadevi. Any challenge to gift deeds affecting joint
undivided properties necessarily requires impleadment of
all affected parties to avoid multiplicity of proceedings and
to enable a comprehensive adjudication. The omission to
do so renders the suit partly defective.
12. The apprehension of alienation or encumbrance
is also not well founded. The plaintiffs have not produced
any document or communication suggesting that, the
defendant is attempting to sell, mortgage or otherwise deal
with the property in a manner adverse to their interest. It
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is trite that, for an injunction to be granted, the threat
must be real, imminent and credible. A vague apprehension
is insufficient. Moreover, doctrine of lis pendens under
Section 52 of Transfer of Property Act provides sufficient
protection to the plaintiffs. Any alienation during pendency
of the suit would be subject to the outcome of litigation and
purchasers if any, would take the property with full notice
of the existing dispute.
13. The learned trial Court further found that, the
plaintiffs have not approached the court with clean hands.
They admittedly received 25 lakhs and have not refunded
the same. Yet, they have not sought any specific relief for
possession of the alleged 10,000 sq.ft. of built up area
which they now claim as promised. The absence of such a
prayer shows that, the plaintiffs are attempting to
selectively approbate and reprobate which is impermissible
in law.
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14. It is a settled proposition that, an appellate
court will not interfere with discretionary order unless it is
shown that, discretion has been exercised arbitrary and or
illegally. In the present case, the learned trial Court has
passed a detailed and reasoned order examining all the
relevant documents, pleadings and law. Plaintiffs have
failed to demonstrate that, the said order suffers from
perversity or illegality wanting interference under appellate
jurisdiction.
15. This Court is satisfied that, the learned trial
Court has justified in refusing to grant temporary injunction
the appellants have failed to demonstrate the prima face
case of fraud, they have not established imminent threat of
alienation and they have not shown that balance of
convenience tilts in their favour. No irreparable injury is
caused to them if injunction is refused. On the contrary
allowing such injunction on speculative claims would result
in misuse of equitable jurisdiction and undue hardship to
the defendant who is presently the recorded owner under
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registered documents. Accordingly, as the appeal is devoid
of merit, is liable to be dismissed. Resultantly, pass the
following:
ORDER
(i) Appeal is dismissed.
(ii) The order dated 14.09.2020 passed by the
XLIII Additional City Civil and Sessions
Judge, Bengaluru (CCH No.44) in OS
No.132/2018, rejecting I.A.1 filed under
Order 39 rule 1 and 2 of CPC, is affirmed.
Under the circumstances, no order as to
costs.
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK
