JUDGMENT:

(per Hon’ble Sri Justice D.V.S.S.Somayajulu)

This appeal is filed questioning the order dated 24.03.2022 in I.A.No.519 of 2021 in O.S.No.112 of 2021.

2. The suit O.S.No.112 of 2021 is filed by a minor and his mother for partition of the suit schedule properties which are quite extensive and valuable. There are 13 items of properties and the first plaintiff is claiming a 4/13th share and the 2nd plaintiff is claiming a 1/13th share apart from other reliefs. The second plaintiff is the daughter-in-law of the defendant Nos.1 and 5. Defendant Nos.2 to 4 are the daughter of defendant Nos.1 and 2 and the siblings of the second plaintiffs husband. Second plaintiff’s husband died intestate on 18.05.2020. Due to subsequent developments the second plaintiff claims that she is compelled to file this suit for partition as the defendants refused to allow her into the residence. She also filed an interim application under Order 39 Rule 1 CPC to restrain the alienation. A counter is filed, leading to the impugned order being passed after hearing.

3. This Court has heard Sri M.Chalapathi Rao, learned counsel for the defendants/appellants, who questions the order and Sri P.S.P.Suresh Kumar for the respondents.

4. Learned counsel for the appellants argued the matter at length and raised issues in line with this counter that items 1 to 13 are not proven to be ancestral or joint family properties or that there is joint family nucleus at all. He contends that the suit schedule properties are the self acquired properties of the first defendant and he relies upon the Hindu Gains of Learning Act, 1930 and the case law under the said Act namely, Ramakrishna Mardi and others v. Vishnumoorthi Mardi and others1, Major Pran Nath Kaushak v. Rajinder Nath Kaushik2, K.Govindarajan v. K.Subramanian3 etc. It is his contention that this vital aspect was overlooked by the trial Court. It is also submitted that the prima facie case, balance of convenience etc., are not examined in the proper perspective.

1 AIR 1957 Madras, 1986

2 AIR 1986 Delhi 121 3 AIR 2013 Madras 80

5. In reply to this, Sri P.S.P.Suresh Kumar, learned counsel, points out that the trial Court took a right decision to protect the interest of the minor and her mother as there is a danger of the property being alienated. He points out that even in the written statement without giving adequate/proper details, it is mentioned that items 1, 2, 3, 4, 5 and 11 are no longer available and they were sold out. He submits that the impugned order is correct in the facts and circumstances of the case and by preserving the status quo, no harm will be caused to the defendants.

COURT:

6. This Court after hearing their contentions notices that the affidavit in question filed in I.A.No.519 of 2021 sets out the facts of the case. In paras 2 to 8, the facts are described. In para 9, prima facie case and balance of convenience are touched upon and in para 10 an injunction is prayed for. The counter filed however is detailed and it raises several pleas.

7. The law is well settled that an injunction cannot be granted for the mere asking. The petitioner will have to plead and prove that an order is necessary in the case to preserve the existing state of things/injury etc. till a final hearing takes place. The petitioner must prima facie prove that there is a threat and the need to protect the property from being alienated. Some pleading and averment to that effect is needed for the Court to come to a conclusion that an interim order is to be granted for protection of the property and to preserve the status quo.

8. The trial Court relied upon the fact that some items of the property were sold out i.e. items 1 to 5 and 11 and granted the interim order. In the judgment relied upon in para 12, it is noticed that during the pendency of the suit, defendant No.1 transferred the properties 2 and 3 and in turn they had transferred the property in favour of third parties. Therefore, the theory of lis pendens was held to be not e