Dismissed

Ajay Kumar v. Vijay Kumar

Himachal Pradesh HC13 Sept 2024FAO(OS)/15/2024

Case brief

AI extract

What is this about?

Brother challenged sale deed, family settlement and will executed by their mother in favour of the other brother. The Division Bench upheld dismissal of interim injunction and receiver applications, holding she was absolute owner and fraud was not prima facie shown.

What the court decided

AI extract

Ajay Kumar Vs Vijay Kumar — Succession and Inheritance | Himachal Pradesh HC (2024)

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( 2024:HHC:8551 )

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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FAO(OS) Nos.14 & 15 of 2024 Reserved on:06.09.2024 Pronounced on:13.09.2024

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FAO(OS) No.14 of 2024 Ajay Kumar	Versus	…Appellant
Vijay Kumar		…Respondent
_______________________ FAO(OS) No.15 of 2024	________________	___________________
Ajay Kumar		…Appellant
	Versus
Vijay Kumar _______________________	________________	…Respondent ___________________

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Coram:

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Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

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Whether approved for reporting?

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For the appellant(s)	: Mr. R.K. Bawa, Sr. Advocate with Mr.
	Vijay Chaudhary, Advocate, in both the appeals.
For the respondent(s)	: Nemo.

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M.S. Ramachandra Rao, Chief Justice .

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These two appeals arise out of two interlocutory applications being OMP no.158 of 2023 & OMP no.159 of 2023 in Civil Suit no.21 of 2023, decided by the learned Single Judge.

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The appellant in both the appeals is the plaintiff in the said suit.

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( 2024:HHC:8551 )

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The appellant filed the said suit to declare (i) a registered Sale Deed dt. 26.06.2019 executed by his mother Late Puni Devi in favour of his brother (the respondent herein), (ii) a Family Settlement dt. 10.03.2019 entered into by his late mother with the respondent and (iii) a Will dt. 04.07.2022 executed by his later mother in favour of the respondent, to be null and void. He also sought to restrain the respondent by way of a permanent prohibitory injunction from acting upon the said documents and from selling, alienating, encumbering or creating any charge over the suit property apart from seeking rendition of accounts.

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In the said suit, he filed OMP no.158 of 2023 under Order 39 Rules 1 & 2 CPC for an interim injunction against the respondent restraining him from selling, alienating, encumbering or creating any charge over the suit property.

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He also filed OMP no.159 of 2023 for appointment of a receiver to manage and control the business of the suit property during the pendency of the suit. In the OMP no.159 of 2023, the appellant contended that since the final disposal of the suit would take some time to protect his interest, and for preservation of the suit properties, a receiver is required to be appointed.

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The respondent filed a reply opposing both applications.

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( 2024:HHC:8551 )

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Both these applications had been dismissed by the learned Single

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Judge and are challenged in these appeals.

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The case of the appellant in the suit

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According to the appellant, the parties are real brothers and the sons of late Puni Devi, who died on 13.07.2022.

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Before the learned Single Judge, the appellant had contended that

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all the above transactions are illegal, null and void being the result of misrepresentation and fraud; that late Puni Devi had inherited substantial immovable property from her late father and that the same is ancestral property in her hands; and he, therefore, has a right in the suit property by birth.

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He also contended that out of the profits earned by her from the properties inherited by her, she had purchased and created more immovable properties, and even on such properties, he had acquired a right of inheritance by birth.

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He alleged that he was serving in the Armed Forces and had remained out of Himachal Pradesh for substantial period of his service career and he was not aware of these transactions till the death of his mother.

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According to him, he obtained copies of the documents and thereafter tried to settle the matter with the respondent, but did not have much success and so he filed the suit.

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( 2024:HHC:8551 )

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The case of the respondent

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The respondent opposed the applications contending that late Smt. Puni Devi, on her free will, transferred her immovable properties in favour of the respondent by way of Sale Deed, Settlement Deed and Will. He contended that the Will dt. 04.07.2022 executed by her was a genuine document. He denied the allegations of misrepresentation and fraud.

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According to him, she was the exclusive owner of the suit properties having absolute right on them having inherited them from her late father and she had every such a right to transfer the same in favour of any person of her choice.

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The respondent also denied that appellant has a right by birth in the suit property. He also raised the plea of bar of limitation.

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The orders of the learned single Judge

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The learned Single Judge held, on a consideration of the pleadings, that the appellant did not lay any foundation therein to support the allegation of fraud and misrepresentation levelled against the respondent, and in absence thereof, the Court cannot presume the existence of the facts constituting the misrepresentation or fraud.

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The learned Single Judge held that alleged illiteracy of Smt. Puni

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Devi cannot be considered sufficient to infer misrepresentation and fraud.

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( 2024:HHC:8551 )

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According to the learned Single Judge, both the Sale Deed as well

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as the Settlement Deed are executed in 2019 and mutations had been made thereafter as well, and it cannot be said that the appellant was not aware of these transactions and there is no explanation as to why he remained silent during the life time of his mother.

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He also held that registration of documents is a Public Notice under the Registration Act, 1908 and there is no material placed by the appellant to suggest that she did not personally participate in getting the Sale Deed or Family Settlement registered before the Registrar and that

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it was also not shown that the mutations were attested without involving her.

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He observed that the appellant had not even pleaded that his mother suffered any mental or physical disability which rendered her incapable of understanding the transactions entered into by her, and the fact that she did not raise any objection to the said transactions during her life time also cannot be ignored.

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He observed that as regards genuineness of Will, it is required to

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be proved in accordance with law and she had already shown her inclination to transfer her property in favour of the respondent-defendant during her life time by executing the Sale Deed and Settlement Deed and those circumstances are sufficient to infer in favour of the genuineness of the documents at the interlocutory stage; the

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( 2024:HHC:8551 )

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dis-inheritance of one of the persons entitled to otherwise inherit the

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properties in case of intestate succession, by itself, cannot be a circumstance sufficient to shake the conscience of this Court at this

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stage.

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He, therefore, held that there is no prima facie case or balance of convenience in favour of the appellant, and irreparable loss cannot be said to be caused to him since he can be compensated in terms of money.

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He also held that it is not a fit case to appoint a receiver, as it is

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also not a just and convenient course.

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The present FAOs

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Assailing the same, these appeals are filed.

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Learned Senior Counsel appearing for the appellant reiterated the

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contentions raised before the learned Single Judge.

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He also contended that in the Sale Deed dt. 26.06.2019, certain

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consideration was received by appellant’s mother from the respondent, but as per the Statement of Account relating to the said Bank Account,

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the said sale consideration amount was re-transferred into the accounts

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of the respondent and his wife within a few months; and this proves

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fraud and misrepresentation. He therefore sought for setting aside the orders of the learned Single Judge and allowing of both OMPs filed in the suit.

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( 2024:HHC:8551 )

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Consideration by the Court

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Since admittedly the property in question is said to have been inherited by Smt. Puni Devi from her late father, prima facie , she is the absolute owner of the said property and is entitled to deal with it as per her choice.

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There is no impediment for her to execute the Sale Deed dt. 26.06.2019 or the Family Settlement Deed dt.10.03.2019 and register the same in favour of the respondent.

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She did not admittedly raise any objection to the same during her lifetime.

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It is not the case of the appellant that Smt. Puni Devi had some physical or mental disability vitiating the said transactions or the Will said to have been executed by her.

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Merely because she was illiterate, it cannot be presumed that there is misrepresentation or fraud played on her by the respondent.

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The Registration of the Sale Deed and the Family Settlement Deed would be Public Notice under Section 3 of the Registration Act, 1908, and as rightly held by the learned Single Judge, the appellant has not offered any explanation as to why he remained silent during the life time of his mother. The genuineness of the Will is required to be proved in accordance with law.

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( 2024:HHC:8551 )

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Merely because the appellant is not given a share in the property

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by her, it does not lead to any presumption, prima facie , that the execution of the Will is vitiated.

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If she wanted to transfer the consideration received by her under the sale transaction from the respondent later to him and his wife, it cannot be presumed prima facie that there was any fraud or misrepresentation.

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We agree with the reasoning of the learned Single Judge that the appellant has not established a prima facie case; that balance of convenience is not in his favour and no irreparable loss would be caused to the appellant, if the temporary injunction is not granted.

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As regards the prayer for appointment of a receiver under Order 40 Rule 1 CPC is concerned, normally, a bonafide possessor of property in dispute is not to be disturbed by the appointment of a receiver unless there is some substantial ground for such interference¹ .

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Also for seeking appointment of a receiver, the appellant has to show that he has a strong case and prima facie title to the property; that the property in dispute is in danger of being wasted away or damaged. Such appointment of receiver is a matter of judicial discretion intended to safeguard the rights of the parties.

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1 AIR 1955 Madras 571, AIR 1955 Madras 430, (1989) 1 Andhra Law Times 277

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( 2024:HHC:8551 )

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37 By applying the above parameters to the instant case, we are of

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the opinion that no case has been made out for appointment of a receiver either.

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Accordingly, both appeals are dismissed. No costs.

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Whatever is stated in the impugned orders of the learned Single

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Judge or by this Court in this order, shall have no bearing in the pending Civil Suit and the same shall be decided on the basis of evidence adduced by the parties, uninfluenced by any observation made either by the learned Single Judge or by this Court in this order.

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Pending miscellaneous application(s), if any, shall also stand disposed of.

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(M.S. Ramachandra Rao) Chief Justice

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(Jytsna Rewal Dua)

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September 13, 2024 Judge (Yashwant)

Ajay Kumar v. Vijay Kumar

Case brief

What is this about?

What the court decided

Ajay Kumar v. Vijay Kumar

Case brief

What is this about?

What the court decided

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