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Judgment
This Civil Misc. Appeal under Order 43 rule 1 CPC is directed against order dated 15.09.2016 passed by the Additional District Judge No.3, Jodhpur Metropolitan in Civil Misc. Case No.63/2016, whereby application for temporary injunction filed by the plaintiff has been rejected.
Briefly stated, the appellant-plaintiff is elder son of late Brahmdev Modi, the defendant No.1 is mother of plaintiff, defendants No.2 & 3 are brothers and the defendant No.4 is sister of the plaintiff-appellant. Father of the plaintiff Shri Brahmdev Modi died on 24.08.2014 after long illness at the age of 83 years.
He possessed several movable & immovable properties, which he never transferred or sold during his lifetime.
It was stated that the defendants No.3 & 4, with intention to illegally grab properties of late Shri Brahmdev Modi, entered into a conspiracy and prepared alleged forged Will dated 08.06.2013.
According to said Will, the defendants No.3 and 4 are the owners of whole movable & immovable properties of late Shri Brahmdev Modi whereas the fact remains that late Shri Brahmdev Modi never prepared any Will during his lifetime and he was interested in distributing his whole properties (movable & immovable) in equal proportion among his legal heirs.
It was further stated that said Will is neither notarized nor registered one nor even typed on stamp papers and the most shocking fact is that no arrangement of any financial security has been made by late Brahmdev Modi for defendant No.1 Smt Kamla Modi, which creates serious doubts as to sanctity and genuineness of the aforesaid forged Will.
It was contended that a copy of said Will dated 08.06.2013 was supplied to the plaintiff only on 09.12.2014. Immediately upon receipt of the aforesaid forged Will, the plaintiff filed a criminal complaint against the defendants No.3, 4 and other related persons. The Investigation Officer prepared a Final Report on 03.08.2015 and filed it along with FSL report before the competent court, against which a Protest Petition was also filed by the plaintiff-appellant. It was also contended that on 29.12.2014, the plaintiff also filed an application before the Commissioner of Police, Jodhpur requesting for conducting investigation in FIR No.297/2014 by any higher officer other than from Shashtri Nagar Police Station because defendants are having personal relations with offices of Shashtri Nagar Police Station.
It was further submitted that the plaintiff-appellant also opted for verification of forged signature of late Shri Brahmdev Modi on said Will from other forensic laboratory, which confirms that there is difference between actual signatures of late Shri Brahmdev Modi and the signature appearing on the aforesaid Will.
It was stated that in view of aforesaid facts & circumstances, the plaintiff filed a civil suit before the District Judge, Jodhpur for cancellation of the Will, partition and perpetual injunction, along with an application under Order 39 rules 1 & 2 CPC for temporary injunction. The defendants No.3 & 4 submitted their reply to temporary injunction on 26.08.2016 and denied the allegations levelled against them. The defendant No.2 also submitted his written reply to the temporary injunction application wherein the facts mentioned by the plaintiff in the civil suit were accepted.
However, to utter surprise of the plaintiff-appellant, the application for temporary injunction filed by him was dismissed by the learned trial court vide impugned order dated 15.09.2016.
Aggrieved by the order dated 15.09.2016, the plaintiff-appellant has filed this Misc. Appeal on the grounds that on the material available on record and the facts & circumstances of the case, a prima facie case for grant of temporary injunction was made out in favour of the plaintiff.
It was also contended that the trial court has overlooked glaring aspect of the case that in the disputed Will, the defendant No.1 Smt Kamla w/o late Shri Brahmdev Modi has been completely neglected and not even a single property has been given to her, which creates serious doubt upon sanctity of such
Will. It was also mentioned in the main suit that the defendants No.3 & 4 are clearly misusing and manipulating properties in the name of late Shri Brahmdev Modi such that even motgher's rights have been jeopardized. Looking to these aspects of the case, the trial court ought to have granted interim protection to the plaintiff while directing the defendants not to alienate and to maintain status quo in respect of the disputed properties.
It was further contended that the trial court completely ignored the fact that the suit was filed for cancellation of the Will as well as for partition of the properties of late Brahmdev Modi and denial of interim protection as to the disputed properties of late Brahmdev Modi would lead to serious hardship to the plaintiff because if any third party rights are created or change in nature of the disputed properties takes place during pendency of the suit, whole purpose of the suit would be frustrated and the same can lead to multiplicity of litigation.
It was also contended that while relying upon Final Report and FSL report submitted by Police in the criminal matter, the learned court below has committed error of law because it is settled proposition of law that the findings recorded in criminal proceedings or finding given by a criminal court are not binding upon the civil court. The civil court is supposed to look into the controversy on independent basis, on the material available before
it. It was contended that the FSL report submitted by the investigating officer in the criminal court has no evidentiary value in a proceedings before civil court.
It was submitted that through a Protest Petition filed by the plaintiff-appellant before the trial court in the criminal case after filing of negative Final Report, the FSL report has been seriously objected and controverted by the plaintiff. It was further submitted that the plaintiff also applied for private FSI as to signatures on the disputed Will to prove that the signatures on the disputed Will are not by late Brahmdev Modi. Therefore, the reliance placed by the trial court on the Final Report submitted by Police was per se illegal, unjustified and arbitrary.
It was also argued that the court below has failed to consider this aspect of the case that if rights of the plaintiff-appellant are not protected during pendency of the suit, the plaintiff shall suffer serious hardship and irreparable loss, which can not be compensated in monetary terms. Thus, points of irreparable loss and balance of convenience also lie in favour of the plaintiff-appellant, which have been improperly adjudicated by the trial
court. Therefore, the impugned order deserves to be quashed and set aside.
In light of the arguments advanced on behalf of the appellant-plaintiff with respect to prima facie case, perused the pleadings and evidence on record. From the record, it is evident that the plaintiff Anil Modi set in motion machinery of law by filing a criminal complaint before Judicial Magistrate No.7, Jodhpur Metropolitan, which complaint was forwarded under sec.156(3) CrPC for investigation to the SHO, Shashtri Nagar Police Station, where the complaint was registered as FIR No.297/2014. After investigation, Police filed Final Report in negative. During the investigation, FSL report has been obtained from Forensic Science Laboratory, Jodhpur. The FSL report gave finding that signature of Shri Brahmdev Modi on the disputed Will resembles with the admitted signatures on other documents. Prima facie, at this stage, this report can not be disbelieved.
A similar complaint was also filed by respondent No.2 Ramesh Chandra Modi on 08.06.2013 before the Metropolitan Magistrate No.7, Jodhpur and that too was sent for investigation under sec.156(3) CrPC to the SHO, Shashtri Nagar Police Station, which was registered as FIR No.159/2013 and this was also later tagged with complaint/FIR No.297/2014. Both the complaints were investigated together. In both he complaints, Final Report was filed and the completes were reported to be false.
The appellant-plaintiff has filed the civil suit on the ground that the Will is forged. This has to be decided in the suit on the basis of evidence recorded during trial of the suit. Till then, there is no prima facie evidence on the basis of which the Will executed by Shri Brahmdev Modi can be taken as forged, especially in view of the fact that a thorough investigation has been undertaken by Police and Final Report has been filed. On the complaint of appellant-plaintiff himself, FSL report has been obtained, which confirms that signatures of late Brahmdev Modi on the disputed Will tallies with his signatures on other admitted documents.
So far as argument of the appellant-plaintiff regarding the fact that no property has been given by late Shri Brahmdev Modi in the Will to the defendant-respondent No.1 Smt Kamla wife of Shri Brahmdev Modi, a reply has been filed by the respondents No.3 and 4 that late Shri Brahmdev Modi had executed a family settlement in respect of properties of the joint family and a Gift Deed was also executed. These documents were executed on dates prior to death of Shri Brahmdev Modi and therefore, it is wrong to say that late Shri Brahmdev Modi did not give any property to his wife (respondent No.1).
So far as question of registration of Will or notarization of the Will is concerned, the trial court has discussed the legal position in para 10 of the order dated 15.09.2016. It is settled position of law that registration of Will is not compulsory. In view of this settled legal position, this argument advanced by learned counsel for the appellant is not tenable.
As regard balance of convenience and irreparable loss are concerned, this fact has come in the reply of the respondents No.3 & 4 that Shri Brahmdev Modi before his death had executed a family settlement, partition deed and Gift deed, by which properties which are different from the Will have been distributed.
So far as genuineness of the Will is concerned, there is no prima facie evidence that it is forged. The trial court has discussed the points of balance of convenience and irreparable loss thoroughly.
So far as question of protection of suit property is concerned, the trial court has rightly observed principle of lis pendente, according to which the suit property is subject to result of the suit.
Thus, this Court finds no ground for interference in the order passed by the trial court on 15.09.2016. The appeal is devoid of merit and the same is hereby dismissed.