Full Judgment Text
Nonreportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.…………………OF 2022
(Arising out of Special Leave Petition (Civil) No.16483 of 2022)
HARISH ISHWARBHAI PATEL …APPELLANT(S)
VERSUS
JATIN ISHWARBHAI PATEL & ORS. …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
1. Leave granted.
2. With the consent of the learned counsel for the parties, the
matter has been heard finally at the stage of admission itself
considering the nature of controversy and the stage of the
pending suit.
3. Plaintiff has filed this appeal assailing the correctness of the
order dated 30.06.2022 passed by the High Court of Gujarat in
R/Appeal From Order No. 70 of 2022, whereby it allowed the
appeal and set aside the order dated 15.02.2022 passed by the
Signature Not Verified
Digitally signed by
SWETA BALODI
Date: 2022.10.21
15:35:03 IST
Reason:
th
6 Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur
in Special Civil Suit No.256 of 2021, whereby it allowed the
pg. 1
application (Exh.5) for temporary injunction and directed the
defendants to maintain status quo with respect to the property
mentioned in the Will in question till final disposal of the suit
and, further that the defendants would furnish the details and
account of the movable property of the deceasedIshwarbhai
Madhavbhai Patel from the date of his death within 30 days from
the date of the order.
4. The appellant, respondent no.1 and respondent no.2 are the
two sons and daughter of Ishwarbhai Madhavbhai Patel.
Respondent no.3 is the widow of Ishwarbhai Madhavbhai Patel.
The dispute relates to a registered Will dated 28.05.2018 said to
be executed by late Ishwarbhai Madhavbhai Patel in respect of
his several immovable properties. Under the said Will, appellant
& respondent no.3 were excluded and the beneficiaries were
respondent nos.1 & 2. The appellant is the elder son, whereas
respondent no.1 is the younger son of late Ishwarbhai
Madhavbhai Patel.
5. Ishwarbhai Madhavbhai Patel served in the Armed Forces
from 1961 till his retirement in 1976. He was granted open land
admeasuring 20234 sq. mts. as per new tenure restrictive
pg. 2
convenants at Village Bhadaj, Ghatlodia, Ahmedabad in 1979. In
1990, Ishwarbhai Madhavbhai Patel is said to have started a
family business (a security services) by the name and style of
“Protection and Security Services”. Respondent no.3 was the
proprietor of such business. The appellant also joined the said
business of his father in 1990 itself when he was aged about 19
years. He was given the job of site visits and also Human
Resource Administration in the business. In 1994, a partnership
was created with Ishwarbhai Madhavbhai Patel and his wife
respondent no.3 as partners. The appellant continued with his
responsibilities as entrusted to him in 1990.
6. On 01.04.1996, the appellant was made a partner in the
aforesaid firm along with Ishwarbhai Madhavbhai Patel and his
wife. The profit loss sharing ratio inter se Ishwarbhai Madhavbhai
Patel, his wife and appellant was 40:40:20 respectively.
7. Later on, respondent no.1 was also inducted as a partner
and their resultant ratio of profit loss sharing was 30:30:20:20.
In the meantime, the security services continued and from the
profits and proceeds of the said business, certain properties were
also acquired. The security business suffered some setbacks in
pg. 3
January, 2005, due to a search conducted by the Department of
Central Excise, as a result of the same, respondent no.1 not
willing to bear the burden against the security firm retired as a
partner vide deed dated 01.04.2006. The appellant continued to
bear the responsibility of running the security firm and single
handedly looked after and managed the business. In July, 2007,
the appellant started his own Security Services by the name and
style of 'Global Services'. Ishwarbhai Madhavbhai Patel breathed
his last on 17.01.2021 after brief complication post Covid. It was
at this stage that the Will dated 28.05.2018 came into light,
according to which, the appellant and respondent no.3 were
excluded from the Will and it was only the respondent no.1 and
respondent no.2 who were the beneficiaries of the immovable
assets claimed by Ishwarbhai Madhavbhai Patel to be self
acquired.
th
8. The appellant tried to claim his 1/4 share in the properties
of his father but the same was denied despite request which
compelled him to institute a suit for declaration, partition and
other reliefs as set out in paragraph 53 of the plaint. The same is
reproduced below:
pg. 4
"53. The plaintiff therefore prays as under:
a. The Hon’ble Court be pleased to pass a decree
setting aside the Will dated 28.05.2018 executed by
Ishwarbhai Madhavlal Patel bearing registration no.
5128 and registered with the office of the Sub
Registrar of Ahmedabad3 (Memnagar) as the same
is illegal, null and void, nonest and/or as the same
is the result of undue influence exercised by
Defendant Nos.1 and 2 and consequently, Defendant
Nos. 1 and 2 and persons claiming through them are
not entitled to receive and bequest/disposition under
such purported will.
b. The Hon’ble Court be pleased to declare that the
plaintiff and the defendants each have 25%
undivided share in the assets of Ishwarbhai more
particularly described in ScheduleA and ScheduleB
as annexed to the plaint.
c. The Hon’ble Court be pleased to pass a decree for
partition of all the assets of Ishwarbhai Madhavlal
Patel by metes and bounds more particularly
described in ScheduleA as annexed to the plaint and
be further pleased to separate out the share of the
plaintiff and handover the same to him for his own
benefit, use and enjoyment and in the alternative if
the defendants fail to cooperate, the Hon’ble Court
be pleased to appoint a Court Commissioner for
partition of all the assets of Ishwarbhai Madhavlal
Patel more particularly described in Schedule A as
annexed to the plaint by metes and bounds and be
further pleased to separate out the share of the
pg. 5
plaintiff and handover the same to him for his own
benefit, use and enjoyment.
d. The Hon’ble Court be pleased to direct the
defendants to disclose the inventory and accounts of
all the movable assets left behind by deceased
Ishwarbhai Madhavlal Patel on the date of his death
and be further pleased issue direction to the
defendants to handover and/or pay 25% share of all
such assets as on the date of the death of Ishwarbhai
Madhavalal Patel to the plaintiff.
e. The Hon’ble Court be pleased to declare that the
defendants are not entitled to deal with, alienate,
transfer, mortgage, part with possession or create
any third party right, title or interest in the assets of
Ishwarbhia Madhavlal Patel as mentioned in
ScheduleA and ScheduleB as annexed to the plaint.
f. The Hon’ble Court be pleased to grant a permanent
injunction restraining the defendants, their servants,
agents, assignees, workers or any other third party
claiming through or under the defendants from
dealing with, alienating, transferring, mortgaging,
part with possession on from creating any third party
right, title or interest in the assets of Ishwarbhai
Madhavlal Patel as mentioned in ScheduleA and
ScheduleB as annexed to the plaint in any manner
whatsoever.
g. Such other and further reliefs as may be deemed fit
and appropriate in the facts and circumstance of the
case may be granted in favour of the plaintiff.
pg. 6
h. Costs of the suit be awarded in favour of the
plaintiff."
9. The appellant along with the plaint also filed an application
for adinterim injunction under Order 39 Rules 1 & 2 C.P.C.
(Exh.5) as there was serious apprehension that respondents
would alienate the immovable properties covered under the Will.
10. A perusal of the plaint reflects two major grounds for
assailing the Will dated 28.05.2018. Firstly, that it was executed
under suspicious circumstances and, secondly, that Ishwarbhai
Madhavbhai Patel did not have the right to execute Will of the
immovable properties which were acquired from the profits and
proceeds of the partnership of which the appellant was a partner
as the said properties would be owned by the partnership firm
and not by Ishwarbhai Madhavbhai Patel exclusively. The
defendants jointly filed one written statement denying the plaint
allegations. Affidavit in rejoinder was filed by the appellant in
response to the written statement.
11. The trial court vide order dated 15.02.2022 allowed the
application for temporary injunction (Exh.5). The defendants
were directed to maintain status quo of the property mentioned
in the Will dated 28.05.2018. The order further required the
pg. 7
defendants to furnish the list and account of the movable
properties of the deceased Ishwarbhai Madhavbhai Patel as on
the date of his death, within 30 days from the date of the order.
In passing the said order, the trial court recorded specific
findings on the three ingredients for grant of temporary
injunction i.e. prima facie case, balance of convenience and
irreparable loss.
12. The respondent nos.1, 2 and 3 preferred an appeal under
Order 43 Rule 1(r) C.P.C. registered as Appeal From Order No.70
of 2022 in the High Court of Gujarat. The said appeal has been
allowed by the High Court vide impugned judgment dated
30.06.2022.
13. The High Court while allowing the appeal has further issued
direction that the trial court shall decide the suit in accordance
with law on the basis of the evidence led by both the parties
without being influenced by any of the observations made in the
said order. It further issued direction to expedite the hearing of
the suit and see to it that the suit is disposed of as early as
possible preferably within six months from the date of receipt of
its order.
pg. 8
14. It has been stated at the bar that the suit is at the stage of
framing of issues. Learned counsel for the parties have also given
an assurance that the parties would cooperate in the early
disposal of the suit.
15. We had also required the parties to give proposal so as to
meet the ends of justice and protect the interest of the appellant.
However, that effort has failed as the proposal given by the
respondents is not acceptable to the appellant. Respondents are
willing to not give an undertaking that they will not alienate the
properties during the pendency of the suit but have only offered
that some of the properties would not be alienated, which offer is
not accepted by the appellant.
16. Having heard learned counsel for the parties and having
perused the material on record, we are of the view that the order
of status quo passed by the trial court was justified in the facts
and circumstances of the case. We are not entering into the
merits of the matter as it may influence the trial court. We,
therefore, allow this appeal, set aside the impugned order of the
High Court dated 30.06.2022 maintaining the order of the trial
court in order to advance justice between the parties.
pg. 9
17. We, however, endorse the directions of the High Court that
the suit itself be decided on merits preferably within a period of
six months.
18. Pending applications, if any, stand disposed of.
…..……..........................J.
[ANIRUDDHA BOSE]
………….........................J.
[VIKRAM NATH]
NEW DELHI
OCTOBER 21, 2022.
pg. 10