IMPORTANT POINT
The property purchased by a Hindu husband in the name of his homemaker spouse is presumed to be joint family property, and the protection of such property from transferring to a third party is necessary.

JUDGMENT :

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 SC 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. Ther