Harish Ishwarbhai Patel vs Jatin Ishwarbhai Patel

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)

JUDGMENT

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

6th Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur 15:35:03 IST Reason:

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.

8. The appellant tried to claim his 1/4th 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