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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.