VIPUL BHANUSHANKER DWIVEDI Vs. KSHAMA AJAY DWIVEDI

JUDGEMENT

(1.) Challenge in this Appeal from Order, under Order 43 Rule 1(r) of the Code of Civil Procedure, is to the order dtd. 7/3/2023, passed, by the learned Chamber Judge, City Court, Ahmedabad, who has declined temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure.

(2.) The mother of the plaintiff, out of natural love and affection, gifted the suit property by registered gift deed to daughter-in-law - respondent - defendant. The registered gift deed executed on 16/12/2020. The age of the donor i.e. late Pushpaben, mother of the plaintiff at the time of execution of the deed was 84 years old and was suffering from age related ailments. Before the execution of the gift deed, the treating doctor Mr. Nikunj D. Mehta, vide its certificate dtd. 7/12/2020, issued a fitness certificate, inter-alia stating that, "she is mentally fit and is in sound and disposing state of mind to understand all the acts, actions, considerations and situations around herself and is able to act and to instruct for all or any of her wish and will and put a signature and give approval for the same by herself." The gift deed was signed by the attesting witnesses, who are real brothers of the deceased. The property disposed of by gift deed was ownership of the mother of the plaintiff who died on 4/5/2021. The late Pushpaben purchased the said property in the year of 1966. The husband of late Pushpaben Mr. Bhanushankar died on 30/7/2000. Two sons namely Deepak and Ajay were passed away on 22/6/2015 and 2/2/2020. The respondent defendant is the wife of late Ajay Dwivedi. Admittedly, late Pushpaben was residing with the respondent defendant and was under her care till the date of her date of death. Since 1993, the plaintiff herein being son of late Pushpaben is residing at the flat property mentioned in para-7 of the plaint.

(3.) In the aforesaid facts, by seeking permanent injunction and declaration, it is prayed that, the gift deed was registered by playing fraud upon late Pushpaben and same may be declared null and void and the respondent defendant be permanently restrained from transferring, alienating or creating any third party charge in relation to the suit property either personally or through any anybody. Along with the suit, the interim injunction pending the suit below application Exh. 6/7 was sought, restraining the respondent - defendant from transferring, alienating the suit property. Originally, the suit filed against the donee of the gift deed, sister of the plaintiff Manisha and the Society where the property is situated. Pending the suit, the defendant no. 2 sister Manisha has been deleted as a party defendant by the plaintiff.