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High Court Of Delhi
SHASHI KAPUR - Appellant
Versus
SUBHASH KAPOOR - Respondent
Interim Application 749 of 1971
Decided On : 08/05/1971
INJUNCTION - INTERIM INJUNCTION - JOINT HINDU FAMILY PROPERTY - ALIENATION BY FATHER - ANTECEDENT DEBT - PRIMA FACIE CASE - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - HINDU LAW - JOINT HINDU FAMILY - FATHER'S POWER TO ALIENATE JOINT FAMILY PROPERTY - CONDITIONS.
Fact of the Case:
Plaintiff, a son in a joint Hindu family, filed a suit for a declaration that House No. 3, Friends Colony, New Delhi is the joint Hindu family property and the decree passed in Suit No. 506 of 1968 for transfer of the property in suit is not binding on him. He also moved for an interim injunction restraining defendant No. 4 from dispossessing him from the property. The defendants contended that the property belonged absolutely to P. L. Kapur, the father, and was his self-acquired property, that the suit was mala fide and filed at the instance of his father and brothers against whom a decree was passed in Suit No. 506 of 1968 in order to defeat the rights acquired by defendant No. 4 under that decree.
Finding of the Court:
The court held that the plaintiff had not made out a prima facie case for the grant of an interim injunction. The court found that there was no presumption in law that a joint Hindu family owns joint family property and that the plaintiff had not placed any material on record to show that he was in lawful possession in his own right. The court also held that the father of a joint Hindu family may sell or mortgage the joint family property including the sons' interests therein to discharge a debt contracted by him for his own personal benefit, provided (a) the debt was antecedent to the alienation, and (b) it was not incurred for an immoral purpose.
Issues: 1. Whether the plaintiff had made out a prima facie case for the grant of an interim injunction? 2. Whether the father of a joint Hindu family may sell or mortgage the joint family property including the sons' interests therein to discharge a debt contracted by him for his own personal benefit?
Ratio Decidendi: 1. The court held that the plaintiff had not made out a prima facie case for the grant of an interim injunction. The court found that there was no presumption in law that a joint Hindu family owns joint family property and that the plaintiff had not placed any material on record to show that he was in lawful possession in his own right. 2. The court held that the father of a joint Hindu family may sell or mortgage the joint family property including the sons' interests therein to discharge a debt contracted by him for his own personal benefit, provided (a) the debt was antecedent to the alienation, and (b) it was not incurred for an immoral purpose.
Final Decision: The court dismissed the plaintiff's application for an interim injunction and accepted the defendants' application for vacation of the interim injunction.
( 2 ) MY Brother Prithvi Raj, J. admitted the suit on 3-5-1971 and ordered summons to the defendants. On the interim applications he issued notice to defendant No. 4 and in the mean time ordered that defendant No. 4 is restrained from dispossessing the plaintiff in any manner whatsoever from House No. 3, Friends Colony. New Delhi. This interim injunction was ordered ex parte I. A. 782 of 1971 was then moved on behalf of defendant No. 4 praying for vacating of the ex parte interim injunction and dismissal of the application for interim injunction moved by the plaintiff. Notice of this application was ordered to the plaintiff. C. S. Loganathan, defendant No. 4 died and I. A. 940 of 1971 was moved on behalf of the legal representatives of defendant No. 4 to the same effect as L A. 782 of 1971. Notice of this application was also given to the plaintiff. The parties have filed their respective replies and affidavits in these three applications. This order will dispose of all four of them.
( 3 ) THE plaintiff-applicant s case is that he is the son of defendant No. 3, P. L. Kapur and brother of defendants Nos. 1 and 2, namely, Subash Kapur and Harbans Lal Kapur. The father and the three sons are claimed to constitute a joint Hindu family. It is alleged that the house No. 3. Friends Colony, New Delhi is the property of this joint Hindu family and was acquired with the help of joint Hindu family funds. The plaintiff goes on to allege that his brother Harbans Lal Kapur and his father P. L. Kapur colluded in order to deprive the plaintiff of his right as a member of the joint Hindu family owning and possessing of the aforesaid property. In this behalf it is alleged a fictitious mortgage was created by defendants Nos. 2 and 3 in collusion with defendant No. 4, who is stated to be an old friend of defendant No. 3 by which the property. 3, Friends Colony. New Delhi was mortgaged in favour of defendant No. 4. It is also asserted that no loans were ever needed by defendants 2 and 3 or the plaintiff or the joint Hindu family nor were any such loans taken by defendants 2 and 3 for themselves or for the joint Hindu family. As such, it is alleged, there was no occasion to mortgage the property in favour of defendant No. 4. With intent to. defeat the rights and claims of the plaintiff, it is asserted, defendants Nos. 2 and 3 then got a mortgage suit filed against themselves in this court which was registered as Suit No. 506 of 1968. The plaintiff contends that the suit was not resisted by his father and brothers and a collusive compromise decree was obtained by them for transfer of property No. 3. Friends Colony. New Delhi in favour of defendant No. 4. The plaintiff asserts that the said compromise decree and transfer of the said property under that decree being collusive at the instance of defendants 2, 3 and 4 was not binding on him and he being an owner of the said property and in actual physical possession thereof in his own right cannot be
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