Inherited land
Querist :
Anonymous
(Querist) 27 February 2024
This query is : Resolved
i Bought land with my money , on my father's name .now my father written will deed without my signature and grand daughter and he written will on name of grandson , not given share for grand daughter ,in will deed he mentioned i bought land with my son money and also and he died
Self-acquired property refers to the property that an individual has acquired through his or her own efforts, skills, or resources, without any inheritance or gift. but, my father bought with my money ,its joint property i think , and also he written will deed about this, like i bought property with my son money
can i approach court to get the Will declared as invalid get the property declared as Hindu joint family property
Neutral Citation No. - 2024:AHC-LKO:13664
Court No. - 29
Case :- FIRST APPEAL FROM ORDER No. - 321 of 2023
Appellant :- Saurabh Gupta
Respondent :- Smt. Archna Gupta And 2 Others
Counsel for Appellant :- Vipul Gupta,Pritish Kumar
Counsel for Respondent :- Ankit Srivastava,R.B.S.
Rathaur,Rajneesh Maurya
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Pritish Kumar, learned counsel for the appellant as
well as Sri Ankit Srivastava and Sri R.B.S. Rathaur learned
counsel for respondent no.2.
2. No one appears on behalf of respondent no.3 despite service
of notice.
3. Present appeal has been filed against the order dated
25.07.2023 passed by Civil Judge (S.D.), Hardoi in Civil Suit
No.23 of 2023 (Saurabh Gupta vs Smt. Archna Gupta and
others) by which the injunction application filed by the
appellant under Order 39 Rule 1 and 2 of C.P.C. (application
no.13(g) has been rejected.
4. The crux of the matter is that the appellant filed a Civil Suit
No.23 of 2023, impleading the respondents as defendants, for a
declaration that he is the co-sharer of 1/4th part of the property
in dispute as the property belongs to joint family property
because it was purchased by the father of the appellant, who is
also the husband of respondent no.1 in the name of respondent
no.1. In the suit above, the specific plea was taken that
respondent no.1 was the house maker and did not have any
independent source of income. Through a sale deed dated
20.10.1986, the appellant's father purchased the property in
dispute from Ram Ratan Gupta. It was further mentioned in the
plaint that the appellant also made construction over that plot,
and thereafter, the entire family has been running a business
therein, and this complex is also known as R.C. Complex.
Therefore, an application under Order 39 Rule 1 and 2 C.P.C.
was filed during the pendency of the present suit with a prayer
that the respondent may be restrained from transferring the
same. In the written statement, respondents have stated that the
aforesaid property has been gifted by respondent no.1 to
respondent no.2. The application above for interim injunction
has been dismissed by the Court below vide order dated
25.07.2023.
5. Contention of counsel for the appellant is that respondent
no.1 was a homemaker and did not have any independent
income, and his father purchased the property in dispute in the
name of respondent no.1 (wife), therefore property belongs to
the joint family property and not an individual property of
respondent no.1. It is further submitted that the appellant as
well as respondent no.2, have been jointly running a business of
selling toy in the property above.
6. It is also submitted by counsel for the appellant that in the
gift deed, respondent no.1 admitted that she is homemaker and
had she been a working women and having source of income,
then this fact would have been mentioned in the gift deed itself,
but she chose to mention herself as a homemaker.
7. In support of his contention, counsel for the appellant has
also relied upon the judgment of Co-ordinate Bench of this
Court in the case of Kuldeep Sharma and others vs
Satyendra Kumar Sharma and others; AIR 2001 Alld 366,
wherein it was observed that if Hindu husband purchases a
property in the name of his wife, who is homemaker then it is to
be presumed that it is a benami transaction unless otherwise
shown to be purchased by the wife from her source of income.
He further relied upon the judgement in the case of Dalpat
Kumar and another vs Prahlad Singh and others; AIR 1993
SC 276, in which the Hon'ble Supreme Court observed in para
5 that for the purpose of injunction, a prima facie case is not to
be confused with a prima facie title, which has to be
established, on evidence at the trial and while granting
injunction, the Court should consider the party seeking relief
does not have any remedy available except one to seek an
injunction and he needs protection from the consequence of
apprehended injury or dispossession.
8. Counsel for the appellant further relied upon the judgement
of Apex Court in the case of Smt. Ranibai alias Mannubai vs
Smt. Kamla Devi and others; AIR 1996 Supreme Court
1946, in which Hon'ble Apex Court observed that the injunction
should be granted in the suit for a declaration if the Court feels
protection is to be given in the pending suit. Therefore, he lastly
submitted that a prima facie case for granting injunction has not
considered by the Court below. Thus, considering this fact, as
well as the legal position that the property purchased in the
name of the homemaker by the husband will be deemed to be
the property of joint family property, the appellant is entitled to
1/4 share in the property in dispute, therefore his right should be
protected by restraining the respondents from creating any 3rd
party's right.
9. Per contra, learned counsel for the respondent nos. 1 and 2
has submitted that in present case application for an injunction
under Order 39 Rule 1 and 2 C.P.C. itself is not maintainable as
no final relief was claimed in the plaint, which is in nature of
permanent injunction.
10. In support of his contention, learned counsel for the
respondent nos.1 and 2 has relied upon the judgement of the coordinate Bench of this Court in the case of V.D. Tripathi and
others vs Vijai Shanker Dwivedi and other; AIR 1976
Allahabad 97, in which Court observed that there was no
prayer for permanent injunction restraining the defendant from
suspending the plaintiff, then prayer for interim injunction
cannot be granted under Order 39 Rule 1 and 2 C.P.C. because
prayer for an interim injunction should not be different from
final prayer in the plaint and also the judgement of Apex Court
in the Cotton Corporation of India Limited vs United
Industrial Bank Limited; 1983(4) SCC 625 in which Hon'ble
Apex Court observed that the power to grant a temporary
injunction was conferred in aid or as auxiliary to the final relief
that may be granted. If the final relief cannot be granted in
terms, as prayed for, temporary relief in the same terms can
hardly be ever granted. In another judgement relied by the
respondent in the case of Manohar Lal Sharma and others vs
Pyare Lal and others in Second Appeal No.2627 of 1974
decided on 21st October, 1986, this Court observed that there is
no presumption that a Hindu joint family owns the joint
properties unless it is established that it had sufficient nucleus
to acquire that property. In another judgement relied upon him
in the case of Kuppala Obul Reddy vs Bonala Venkata
Narayana Reddy (dead) through Lrs; AIR 1984 Supreme
Court 1171, in which Hon'ble Apex Court observed that there
may be a presumption that the joint family but not for the
possessing of joint family property. In another judgement of the
Supreme Court in Bhagwat Sharan (Dead Thr. Lrs) vs
Purushottam; AIR 2020 SC 2361, the Hon'ble Supreme Court
observed that unless the material is produced to show that
payment was made to purchase the property out of the fund of
HUF, the property cannot be said to belong to HUF.
11. After considering the rival submissions of learned counsel
for the parties and on perusal of the record, it is clear that the
father of appellant had purchased the property in dispute, who
was also the husband of respondent no.1. There is nothing on
record which shows that respondent No. 1 had any independent
source of income. Though the husband can purchase a property
in the name of his wife as a gift to her to make her absolute
owner of that property, but that would come, only after the
evidence is adduced. The Co-ordinate Bench of this Court has
already observed that once a property is purchased by a Hindu
husband in the name of his wife, who is homemaker, then the
property will be deemed to be purchased by the husband
himself from his source unless the contrary is proved. Secondly,
it is also evident from the judgment of the Apex Court in Smt.
Ranibai alias Mannubai (supra) that even in the suit for
declaration as an application under Order 39 Rule 1 and 2 read
with Section 151 C.P.C. is maintainable for the protection of
property, which is the subject matter of suit if the Court finds
protection of the subject matter is necessary, and if protection is
not granted, the same may result in irreparable loss to the
complainant.
12. Proviso (iii) of Section 2(9)(b) of Prohibition of Benami
Property Transactions Act, 1988 also prescribes that if the
husband purchased the property in the name of his wife or
children, then the same will not be said to be Benami property
but will be deemed to be purchased by the husband out of his
source.
13. Law relating to granting interim injunction during the
pendency of suit is well-settled which was reiterated by the
Apex Court in several judgements. In the case of Neon
Laboratories Ltd. vs Medical Technology Ltd. and others;
2016 (2) SCC 672, Hon'ble Apex Court observed as under;
"However, it is now entrenched in our jurisprudence that the appellate
Court is not flimsily, whimsically or lightly interfere in the exercise of
discretion by a sub-ordinate court unless such exercise is palpably
frivolous. Perversity can pertain to the understanding of law or the
appreciation of pleadings or evidence."
14. Hon'ble Apex Court in the case of Zenith Metaplast Pvt.
Ltd. vs State of Maharastra and others; 2009 (10) SCC 388,
while laying down the law relating to granting the injunction,
observed that the interim order is a temporary arrangement to
preserve the status quo till the matter is decided finally, to
ensure that the matter does not become infructuous or a fait
accompali before the final hearing. It also further observed that
the grant of a temporary injunction is governed by three basic
principles, i.e. prima facie case, balance of convenience, and
irreparable injury, which must be considered in a proper
perspective in the facts and circumstances of the particular case.
For reference para 30, 31 and 37 of the above judgments are
quoted as below;
"30. Interim order is passed based on prima facie findings, which are
tentative. Such order is passed as a temporary arrangement to preserve
the status quo till the matter is decided finally, to ensure that the matter
does not become either infructuous or a fait accompli before the final
hearing. The object of the interlocutory injunction is to protect the
plaintiff against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial (vide Anand Prasad
Agarwalla v. Tarkeshwar Prasad [(2001) 5 SCC 568] , and State of Assam
v. Barak Upatyaka D.U. Karmachari Sanstha [(2009) 5 SCC 694 : (2009)
2 SCC (L&S) 109] ).
31. Grant of an interim relief in regard to the nature and extent thereof
depends upon the facts and circumstances of each case as no straitjacket
formula can be laid down. There may be a situation wherein the
respondent-defendant may use the suit property in such a manner that the
situation becomes irretrievable. In such a fact situation, interim relief
should be granted (vide M. Gurudas v. Rasaranjan [(2006) 8 SCC 367 :
AIR 2006 SC 3275] and Shridevi v. Muralidhar [(2007) 14 SCC 721] ).
Grant of a temporary injunction is governed by three basic principles, i.e.
prima facie case, balance of convenience; and irreparable injury, which
are required to be considered in a proper perspective in the facts and
circumstances of a particular case. But it may not be appropriate for any
court to hold a mini-trial at the stage of grant of temporary injunction
[vide S.M. Dyechem Ltd. v. Cadbury (India) Ltd. [(2000) 5 SCC 573 : AIR
2000 SC 2114] and Anand Prasad Agarwalla [(2001) 5 SCC 568] , SCC
p. 570, para 6].
37. Thus, the law on the issue emerges to the effect that interim injunction
should be granted by the Court after considering all the pros and cons of
the case in a given set of facts involved therein on the risk and
responsibility of the party or, in case he loses the case, he cannot take any
advantage of the same. The order can be passed on settled principles
taking into account the three basic grounds i.e. prima facie case, balance
of convenience and irreparable loss."
15. Be that as it may, here the appellant is claiming the
declaration of only 1⁄4th share in the property in dispute on the
ground that the property belongs to a joint Hindu family and the
property was purchased during lifetime of father of the
appellant in the name of respondent no.1, who was homemaker.
This Court under Section 114 of Indian Evidence Act may
presume the existence of fact that the property purchased
by Hindu husband in the name of his spouse, who is
homemaker and does not have independent source of
income, will be the property of family, because in common
course of natural event Hindu husband purchases a
property in the name of his wife, who is homemaker and
does not have any source of income for the benefit of family.
Therefore, in such case prima facie the property is joint Hindu
family property and protection of property from transferring to
a third party is necessary, consequently this Court finds that the
Court below, while passing the impugned order dated
25.04.2023 has not applied his mind despite being a prima facie
case, and in such case protection is necessary against further
transferring the property or changing the nature of same, if
same is not protected, there are chances the property may be
transferred or nature of property may be changed in that case
even if the appellant's suit is decreed, then he will suffer
irreparable loss and injury.
16. Therefore, the order dated 25.07.2023 passed by Civil Judge
(S.D.), Hardoi in Civil Suit No.23 of 2023 (Saurabh Gupta vs
Smt. Archna Gupta and others) is hereby set aside. Injunction
application filed by the appellant bearing Paper No.13(g) is
allowed, and respondents are restrained from transferring the
property in dispute during the pendency of the suit. As the
dispute is between the real brothers and the suit is still pending,
therefore, it would appropriate the Court below will decide the
same expeditiously in accordance with law without giving any
unnecessary adjournment to either of the parties.
17. With the observation above, the appeal is allowed.
Order Date :- 15.2.2024
A.Kr
T. Kalaiselvan, Advocate
(Expert) 28 February 2024
It can be considered as joint family property hence the act of bequeathing the proeprty by your father through Will to a grandson is not legally valid, yo can approach court to get the Will declared as invalid due to the said reasons and get the property declared as Hindu joint family property
kavksatyanarayana
(Expert) 28 February 2024
I opine, that you purchased the land in your father's name it is considered that the property is his property even though you paid the amount. So you convince your father to cancel that will as you purchased it in his name. If he does not agree to cancel the Will and if you have sufficient evidence it was paid you then file a case in a civil court to cancel the Will
Advocate Bhartesh goyal
(Expert) 29 February 2024
After commencement of Benami Transaction Act ,No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any person shall lie by or on behalf of a person claiming to be the real owner of such property so you can't initiate any legal action to claim property. Your father can transfer the property as per his wish.
Querist :
Anonymous
(Querist) 29 February 2024
Advocate Bhartesh goyal
Benami transactions involve property transfers where the property is held in the name of one person while the consideration is paid by another,but my name mentioned in will deed i bought property with my son money
Advocate Bhartesh goyal
(Expert) 29 February 2024
Since the property is on your fathers name so your father is absolute owner of property .it is immaterial that who made investment to buy the property.
Querist :
Anonymous
(Querist) 29 February 2024
can i approach court to get the Will declared as invalid get the property declared as Hindu joint family property
Advocate Bhartesh goyal
(Expert) 29 February 2024
Legally you are estopped to challenge the validity of will on such ground.
T. Kalaiselvan, Advocate
(Expert) 29 February 2024
You should understand the underlying law involved in this and then in consultation with an advocate, you may decide on further course of legal action.
Querist :
Anonymous
(Querist) 01 March 2024
file:///C:/Users/User/Downloads/Property%20in%20wife's%20name-%20ALL%20HC.pdf
can u read this one
Querist :
Anonymous
(Querist) 01 March 2024
Neutral Citation No. - 2024:AHC-LKO:13664
Court No. - 29
Case :- FIRST APPEAL FROM ORDER No. - 321 of 2023
Appellant :- Saurabh Gupta
Respondent :- Smt. Archna Gupta And 2 Others
Counsel for Appellant :- Vipul Gupta,Pritish Kumar
Counsel for Respondent :- Ankit Srivastava,R.B.S.
Rathaur,Rajneesh Maurya
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Pritish Kumar, learned counsel for the appellant as
well as Sri Ankit Srivastava and Sri R.B.S. Rathaur learned
counsel for respondent no.2.
2. No one appears on behalf of respondent no.3 despite service
of notice.
3. Present appeal has been filed against the order dated
25.07.2023 passed by Civil Judge (S.D.), Hardoi in Civil Suit
No.23 of 2023 (Saurabh Gupta vs Smt. Archna Gupta and
others) by which the injunction application filed by the
appellant under Order 39 Rule 1 and 2 of C.P.C. (application
no.13(g) has been rejected.
4. The crux of the matter is that the appellant filed a Civil Suit
No.23 of 2023, impleading the respondents as defendants, for a
declaration that he is the co-sharer of 1/4th part of the property
in dispute as the property belongs to joint family property
because it was purchased by the father of the appellant, who is
also the husband of respondent no.1 in the name of respondent
no.1. In the suit above, the specific plea was taken that
respondent no.1 was the house maker and did not have any
independent source of income. Through a sale deed dated
20.10.1986, the appellant's father purchased the property in
dispute from Ram Ratan Gupta. It was further mentioned in the
plaint that the appellant also made construction over that plot,
and thereafter, the entire family has been running a business
therein, and this complex is also known as R.C. Complex.
Therefore, an application under Order 39 Rule 1 and 2 C.P.C.
was filed during the pendency of the present suit with a prayer
that the respondent may be restrained from transferring the
same. In the written statement, respondents have stated that the
aforesaid property has been gifted by respondent no.1 to
respondent no.2. The application above for interim injunction
has been dismissed by the Court below vide order dated
25.07.2023.
5. Contention of counsel for the appellant is that respondent
no.1 was a homemaker and did not have any independent
income, and his father purchased the property in dispute in the
name of respondent no.1 (wife), therefore property belongs to
the joint family property and not an individual property of
respondent no.1. It is further submitted that the appellant as
well as respondent no.2, have been jointly running a business of
selling toy in the property above.
6. It is also submitted by counsel for the appellant that in the
gift deed, respondent no.1 admitted that she is homemaker and
had she been a working women and having source of income,
then this fact would have been mentioned in the gift deed itself,
but she chose to mention herself as a homemaker.
7. In support of his contention, counsel for the appellant has
also relied upon the judgment of Co-ordinate Bench of this
Court in the case of Kuldeep Sharma and others vs
Satyendra Kumar Sharma and others; AIR 2001 Alld 366,
wherein it was observed that if Hindu husband purchases a
property in the name of his wife, who is homemaker then it is to
be presumed that it is a benami transaction unless otherwise
shown to be purchased by the wife from her source of income.
He further relied upon the judgement in the case of Dalpat
Kumar and another vs Prahlad Singh and others; AIR 1993
SC 276, in which the Hon'ble Supreme Court observed in para
5 that for the purpose of injunction, a prima facie case is not to
be confused with a prima facie title, which has to be
established, on evidence at the trial and while granting
injunction, the Court should consider the party seeking relief
does not have any remedy available except one to seek an
injunction and he needs protection from the consequence of
apprehended injury or dispossession.
8. Counsel for the appellant further relied upon the judgement
of Apex Court in the case of Smt. Ranibai alias Mannubai vs
Smt. Kamla Devi and others; AIR 1996 Supreme Court
1946, in which Hon'ble Apex Court observed that the injunction
should be granted in the suit for a declaration if the Court feels
protection is to be given in the pending suit. Therefore, he lastly
submitted that a prima facie case for granting injunction has not
considered by the Court below. Thus, considering this fact, as
well as the legal position that the property purchased in the
name of the homemaker by the husband will be deemed to be
the property of joint family property, the appellant is entitled to
1/4 share in the property in dispute, therefore his right should be
protected by restraining the respondents from creating any 3rd
party's right.
9. Per contra, learned counsel for the respondent nos. 1 and 2
has submitted that in present case application for an injunction
under Order 39 Rule 1 and 2 C.P.C. itself is not maintainable as
no final relief was claimed in the plaint, which is in nature of
permanent injunction.
10. In support of his contention, learned counsel for the
respondent nos.1 and 2 has relied upon the judgement of the coordinate Bench of this Court in the case of V.D. Tripathi and
others vs Vijai Shanker Dwivedi and other; AIR 1976
Allahabad 97, in which Court observed that there was no
prayer for permanent injunction restraining the defendant from
suspending the plaintiff, then prayer for interim injunction
cannot be granted under Order 39 Rule 1 and 2 C.P.C. because
prayer for an interim injunction should not be different from
final prayer in the plaint and also the judgement of Apex Court
in the Cotton Corporation of India Limited vs United
Industrial Bank Limited; 1983(4) SCC 625 in which Hon'ble
Apex Court observed that the power to grant a temporary
injunction was conferred in aid or as auxiliary to the final relief
that may be granted. If the final relief cannot be granted in
terms, as prayed for, temporary relief in the same terms can
hardly be ever granted. In another judgement relied by the
respondent in the case of Manohar Lal Sharma and others vs
Pyare Lal and others in Second Appeal No.2627 of 1974
decided on 21st October, 1986, this Court observed that there is
no presumption that a Hindu joint family owns the joint
properties unless it is established that it had sufficient nucleus
to acquire that property. In another judgement relied upon him
in the case of Kuppala Obul Reddy vs Bonala Venkata
Narayana Reddy (dead) through Lrs; AIR 1984 Supreme
Court 1171, in which Hon'ble Apex Court observed that there
may be a presumption that the joint family but not for the
possessing of joint family property. In another judgement of the
Supreme Court in Bhagwat Sharan (Dead Thr. Lrs) vs
Purushottam; AIR 2020 SC 2361, the Hon'ble Supreme Court
observed that unless the material is produced to show that
payment was made to purchase the property out of the fund of
HUF, the property cannot be said to belong to HUF.
11. After considering the rival submissions of learned counsel
for the parties and on perusal of the record, it is clear that the
father of appellant had purchased the property in dispute, who
was also the husband of respondent no.1. There is nothing on
record which shows that respondent No. 1 had any independent
source of income. Though the husband can purchase a property
in the name of his wife as a gift to her to make her absolute
owner of that property, but that would come, only after the
evidence is adduced. The Co-ordinate Bench of this Court has
already observed that once a property is purchased by a Hindu
husband in the name of his wife, who is homemaker, then the
property will be deemed to be purchased by the husband
himself from his source unless the contrary is proved. Secondly,
it is also evident from the judgment of the Apex Court in Smt.
Ranibai alias Mannubai (supra) that even in the suit for
declaration as an application under Order 39 Rule 1 and 2 read
with Section 151 C.P.C. is maintainable for the protection of
property, which is the subject matter of suit if the Court finds
protection of the subject matter is necessary, and if protection is
not granted, the same may result in irreparable loss to the
complainant.
12. Proviso (iii) of Section 2(9)(b) of Prohibition of Benami
Property Transactions Act, 1988 also prescribes that if the
husband purchased the property in the name of his wife or
children, then the same will not be said to be Benami property
but will be deemed to be purchased by the husband out of his
source.
13. Law relating to granting interim injunction during the
pendency of suit is well-settled which was reiterated by the
Apex Court in several judgements. In the case of Neon
Laboratories Ltd. vs Medical Technology Ltd. and others;
2016 (2) SCC 672, Hon'ble Apex Court observed as under;
"However, it is now entrenched in our jurisprudence that the appellate
Court is not flimsily, whimsically or lightly interfere in the exercise of
discretion by a sub-ordinate court unless such exercise is palpably
frivolous. Perversity can pertain to the understanding of law or the
appreciation of pleadings or evidence."
14. Hon'ble Apex Court in the case of Zenith Metaplast Pvt.
Ltd. vs State of Maharastra and others; 2009 (10) SCC 388,
while laying down the law relating to granting the injunction,
observed that the interim order is a temporary arrangement to
preserve the status quo till the matter is decided finally, to
ensure that the matter does not become infructuous or a fait
accompali before the final hearing. It also further observed that
the grant of a temporary injunction is governed by three basic
principles, i.e. prima facie case, balance of convenience, and
irreparable injury, which must be considered in a proper
perspective in the facts and circumstances of the particular case.
For reference para 30, 31 and 37 of the above judgments are
quoted as below;
"30. Interim order is passed based on prima facie findings, which are
tentative. Such order is passed as a temporary arrangement to preserve
the status quo till the matter is decided finally, to ensure that the matter
does not become either infructuous or a fait accompli before the final
hearing. The object of the interlocutory injunction is to protect the
plaintiff against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial (vide Anand Prasad
Agarwalla v. Tarkeshwar Prasad [(2001) 5 SCC 568] , and State of Assam
v. Barak Upatyaka D.U. Karmachari Sanstha [(2009) 5 SCC 694 : (2009)
2 SCC (L&S) 109] ).
31. Grant of an interim relief in regard to the nature and extent thereof
depends upon the facts and circumstances of each case as no straitjacket
formula can be laid down. There may be a situation wherein the
respondent-defendant may use the suit property in such a manner that the
situation becomes irretrievable. In such a fact situation, interim relief
should be granted (vide M. Gurudas v. Rasaranjan [(2006) 8 SCC 367 :
AIR 2006 SC 3275] and Shridevi v. Muralidhar [(2007) 14 SCC 721] ).
Grant of a temporary injunction is governed by three basic principles, i.e.
prima facie case, balance of convenience; and irreparable injury, which
are required to be considered in a proper perspective in the facts and
circumstances of a particular case. But it may not be appropriate for any
court to hold a mini-trial at the stage of grant of temporary injunction
[vide S.M. Dyechem Ltd. v. Cadbury (India) Ltd. [(2000) 5 SCC 573 : AIR
2000 SC 2114] and Anand Prasad Agarwalla [(2001) 5 SCC 568] , SCC
p. 570, para 6].
37. Thus, the law on the issue emerges to the effect that interim injunction
should be granted by the Court after considering all the pros and cons of
the case in a given set of facts involved therein on the risk and
responsibility of the party or, in case he loses the case, he cannot take any
advantage of the same. The order can be passed on settled principles
taking into account the three basic grounds i.e. prima facie case, balance
of convenience and irreparable loss."
15. Be that as it may, here the appellant is claiming the
declaration of only 1⁄4th share in the property in dispute on the
ground that the property belongs to a joint Hindu family and the
property was purchased during lifetime of father of the
appellant in the name of respondent no.1, who was homemaker.
This Court under Section 114 of Indian Evidence Act may
presume the existence of fact that the property purchased
by Hindu husband in the name of his spouse, who is
homemaker and does not have independent source of
income, will be the property of family, because in common
course of natural event Hindu husband purchases a
property in the name of his wife, who is homemaker and
does not have any source of income for the benefit of family.
Therefore, in such case prima facie the property is joint Hindu
family property and protection of property from transferring to
a third party is necessary, consequently this Court finds that the
Court below, while passing the impugned order dated
25.04.2023 has not applied his mind despite being a prima facie
case, and in such case protection is necessary against further
transferring the property or changing the nature of same, if
same is not protected, there are chances the property may be
transferred or nature of property may be changed in that case
even if the appellant's suit is decreed, then he will suffer
irreparable loss and injury.
16. Therefore, the order dated 25.07.2023 passed by Civil Judge
(S.D.), Hardoi in Civil Suit No.23 of 2023 (Saurabh Gupta vs
Smt. Archna Gupta and others) is hereby set aside. Injunction
application filed by the appellant bearing Paper No.13(g) is
allowed, and respondents are restrained from transferring the
property in dispute during the pendency of the suit. As the
dispute is between the real brothers and the suit is still pending,
therefore, it would appropriate the Court below will decide the
same expeditiously in accordance with law without giving any
unnecessary adjournment to either of the parties.
17. With the observation above, the appeal is allowed.
Order Date :- 15.2.2024
A.Kr
