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Kartick Chandra Naha v/s Akhil Bandhu Ghosh & Others


Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    C.O. No. 3444 of 2009

    Decided On, 09 January 2013

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE PRASENJIT MANDAL

    For the Petitioner: Dibanath Dey, Advocate. For the Respondents: Sanjay Ghosh, Rakesh Singh, Advocates.



Judgment Text

1. This application is at the instance of the plaintiff and is directed against the Order dated July 29, 2009 passed by the learned Additional District & Sessions Judge, 5th Fast Track Court, Alipore in Misc. Appeal No.170 of 2006 there by affirming the order dated March 23, 2006 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No.91 of 2006.

The facts necessary for the purpose of disposal of this application are etymologized below:-

i) One Swarna Prova Guha Neogy executed a Registered Deed of Gift on October 27, 1961 in favour of Renu Nandy @ Guha Neogy. The said Renu Nandy @ Guha Neogy constructed a two-storied building on more or less 1 cottah and 6 chittacks of land and one structure with brick wall and asbestos roof on 11 chittacks of land and remaining 1 cottah of land kept vacant.

ii) The said Renu Nandy executed her last will on September 9, 1987 and the said will was registered. According to the will, the Eastern portion of the property in question was bequeathed to the mother of the petitioner and after the death of the mother of the petitioner, the petitioner became the owner of the same. Renu Nandy also bequeathed other parts of the building to three other sisters including the opposite party no.3. One cottah vacant land was to be used by the three sisters including the mother of the petitioner and the opposite party no.3.

iii) In 1995, she was attacked with parkinson coupled with dementia and so, she could not sign her name properly. In 1996, she lost her capacity to sign her name. In order to withdraw the pension from the bank, one medical certificate was required to be produced in support of the withdrawal slip accordingly.

iv) Smt. Renu Nandy @ Guha Neogy died on December 1, 1999. In 2000 onwards, the petitioner requested the defendant no.3 to obtain a probate of the will of the deceased Renu Nandy executed on September 9, 1987. Accordingly, the opposite party no.3 prepared an application for grant of probate and placed the same papers to the petitioner for consent. The petitioner, upon believe that the will dated September 9, 1987 was going to be probated, was asked to sign on papers. She signed on good faith.

v)Ultimately, on July 27, 2005 she came to know that the opposite party no.3 obtained a probate in respect of a forged will dated March 6, 1997 and that a forged and manufactured deed of gift in her favour had been prepared on March 20, 1997. The property involved in the said forged deed of gift is the subject matter of the suit.

vi) Thereafter, the petitioner filed a suit being No.91 of 2006 for declaration that the impugned deed of gift dated March 20, 1997 is forged, fabricated, manufactured and not binding upon the petitioner as well as the impugned deed of conveyance dated July 15, 2005 executed by opposite party no.3 in favour of the opposite party no.s 1 & 2 is void, illegal and inoperative.

vii) The rectification of the impugned grant of probate is pending before the Court of the learned District delegate.

viii) On March 23, 2006, the plaintiff preferred an application for injunction under Order 39 Rule 1 & 2 of the C.P.C. before the learned Civil Judge (Junior Division), 1st Court, Alipore in the said Title Suit No.91 of 2006. Upon hearing the learned Trial Judge, inter alia, was pleased to refuse the prayer for ad interim injunction.

ix) Being aggrieved, the petitioner preferred an appeal being Misc. Appeal No.170 of 2006 before the learned District Judge, Alipore and the said misc. appeal was dismissed by the impugned order.

x) Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Having heard the learned Counsel for the parties and on going through the materials on record, I find that the recording of the above facts are true. Thus, I find that both the Courts below have come to the concurrent findings that there is no urgency in the matter of granting ad interim injunction. While dealing with the same, the learned Trial Judge gave a short adjournment for appearance of the defendant so that the injunction could be heard in presence of both the parties. While dealing with the same matter, the Appellate Court also came to the finding that the defendant no.s 1 & 2 were the purchasers of the suit property from the defendant no.3 and at present, they do not claim their right, title and possession in the suit property on the ground that they had sold the same to a third party.

On the other hand, the plaintiff has claimed his title and possession in the suit property in view of the registered will alleged to have been executed by Renu Nandy in the year 1987 but the will has not been probated as yet.

The contention of the petitioner that she had signed on the papers pertaining to the probate proceeding on believing that those papers were related to the will executed by Renu Nandy in the year 1987 and not to the will and gift executed in the year 1997, are to be dealt with at the appropriate stage of the trial of the said suit.

Under the circumstances, the learned Trial Judge has held that there is no urgency in the matter and I think the learned Trial Judge has rightly dealt with the matter of injunction by the order dated March 23, 2006.

The Appellate Court has also come to the clear finding that the petitioner has claimed the property in question on the basis of a registered will executed in the year 1987 but the said will has not been probated as yet.

On the other hand, prima facie, it appears that the petitioner had given her consent for probate etc. in respect of the will executed in the year 1997. The question of practicing fraud etc. is to be decided at the appropriate stage of the trial of the suit. So, at the initial stage of the suit when the prayer for ad interim injunction in the nature of temporary injunction was sought for the learned Trial Judge was to see whether there was any urgency in the matter and as recorded above, I find that the learned Trial Judge has addressed the matter in proper angle of the same. Accordingly, the Appellate Court has observed that he did not find any irregularity or illegality in the findings of the learned Trial Judge and that there is no scope of interference with the order of the learned Trial Judge dated March 23, 2006.

Mr. Dibanath Dey, learned Advocate appearing for the petitioner, has referred to the decision of Sm. Sabita Banerjee v. Dr. Mahendra Yashwant Bal reported in 1998(1) CLJ 8 and thus, he has submitted that if the petitioner has been able to make out an arguable case and fraud is alleged, and when the plaintiff is in possession and the balance of conveyance lies in favour of the plaintiff, an order of injunction should be granted. In the instant case, as recorded above, the facts are quite different.

As noted above, prima facie, the plaintiff gave consent to the probate proceeding in respect of the will of 1997 and accordingly, the said will was probated. Moreover, at present as it appears that the defendant no.3 had transferred the suit property in favour of the defendant no.s 1 & 2 who had also transferred the same to a third party.

This being the position, I am of the view that the facts in the instant case are altogether different from the case of Smt. Sabita Banerjee (supra). So, this decision will not be appropriate in the instant case.

While making submission on behalf of the petitioner, Mr. Dey has contended that at the time of preferring an appeal being Misc. Appeal No.170 of 2006 before the learned District Judge, the petitioner filed an application for injunction and upon hearing, the learned District Judge refused to grant ad interim order of injunction. Being aggrieved by the said order, the petitioner preferred a revisional application being C.O. No.2011 of 2006 before this Hon’ble Court and upon hearing, the Hon’ble Court was pleased to grant ad interim order of status quo. Subsequently, the said order of status quo was extended till August 10, 2006. Then, the said revisional application was dismissed for non appearance of the learned Advocate for the petitioner. The said misc. appeal was dismissed on July 29, 2009 and the present revisional application was filed before the Hon’ble Court and at the time of moving the said application, this Hon’ble Court also directed the parties to maintain status quo with regard to possession and as such, the order of status quo should be maintained till the disposal of the application for temporary injunction.

In this regard, I am of the view that the order of status quo was passed at the initial stage of the admission of the concerned revisional application, but, whether the said order of status quo should sustain or not depends on the merits of the application.

In view of the facts and circumstances, as recorded above, I am of the view that though the petitioner enjoyed the interim order of status quo with regard to possession, such prayer of Mr. Dey for extending the same benefit till the disposal of the application for temporary injunction cannot be considered for the reasons recorded above.

On the other hand, Mr. Sanjay Ghosh, learned Advocate appearing for the opposite party no.6, has referred to the decision of Ranjit Kumar Jain v. Kamal Kumar Chowdhury & anr. reported in AIR 1982 Calcutta 493 particularly the paragraph no.13 and thus, he has submitted that the probate obtained in respect of the will of 1997 is binding upon the plaintiff till the probate is revoked.

He has also referred to the decisions of The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad reported in AIR 1973 SC 76, Punit Beriwala v. Suva Sanyal & anr. reported in AIR 1998 Calcutta 44 and Forman Ali Miji & ors. v. Uzir Ali Shek & ors. reported in 42 CWN 14 in respect of the general principles of granting injunction and when the High Court would interfere with the order of injunction passed by the Lower Court.

The decision of Forman Ali Miji & ors. (supra) lays down the refusal of injunction against a bona fide purchaser. In the instant case, as per c

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ontention of the defendant no.s 1 & 2, they had purchased the suit property upon due search and thereafter, they had sold the same to a third party. Accordingly, I am of the view that no relief of injunction should be granted against a bona fide purchaser. This being the position, I am of the view that the concurrent findings arrived at by the Courts below should not be interfered with particularly when these relate to ad interim injunction sought for at the time of the filing of the suit. The application for temporary injunction shall be dealt with by the learned Trial Judge as early as possible. Accordingly, this application is dismissed. However, there will be no order as to costs. It is hereby recorded that while disposing of the application for temporary injunction or the suit, the learned Trial Judge shall not be influenced by my above observations in any way. The observations as made above are only for the purpose of the disposal of this application. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
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