Atin Kanwar Relia and Another vs Kanwar Baldev Raj and Another

V.K. Shali, J.—This is an appeal filed by the appellants against the order dated 26.5.2012 in Civil Suit No. 211/2012 passed by the learned ADJ dismissing the application filed by the appellants under Order 39 Rules 1 and 2 CPC. By virtue of the application under Order 39 Rules 1 and 2 CPC, the appellants/plaintiffs had sought an ex parte ad interim temporary injunction for restraining the respondent no. 1/defendant no. 1, his legal representatives, assignees, servants, employees and any person claiming on his behalf or as his attorney etc. from selling, transferring, alienating and/or creating any third party interest, parting with the possession or in any manner dealing with or entering into any agreement in respect of the property bearing No. E-33, Kalindi Colony, New Delhi till the disposal of the suit.

Briefly stated the facts of the case are that the appellants have filed a suit for declaration, permanent and mandatory injunction against their grandfather Sh. Kanwar Baldev Raj/R-1 and also made their father Sh. Vijay Relia/R-2, a party.

The learned counsel for the appellants was repeatedly directed to make submissions with regard to the appeal. However, he failed to do so, on the contrary, he seems to be interested in obtaining an adjournment. He also wanted to refer to some orders purported to have been passed by some court wherein observations with regard to the mental health of the respondent no. 1 were made. All these facts are irrelevant for the purpose of deciding the present appeal. Consequently, this Court was left with no other option except to go through the impugned order.

I have gone through the impugned order. The appellants are admittedly the sons of the respondent no. 2 and the suit seems to be a collusive one between the appellants and the respondent no. 2, so as to forestall their grandfather from dealing in any manner with the property bearing no. E-33, Kalindi Colony, New Delhi-65, which is left behind by the wife of respondent no. 1, who happened to be the grandmother of the appellants and the mother of respondent no. 2.

Be that as it may, the appellants in essence are claiming the aforesaid property to be a joint Hindu family property belonging not only to the respondents but also to the appellants. The reasons for saying that it was a joint Hindu family property is that it was actually owned by their grandmother and after her demise, it has fallen into the hands of the respondents and thus became a joint Hindu family property. Reference has been made to some earlier suit initiated between the defendants/respondents inter se and the decree having been passed so far as the partition of the suit is concerned. However, these are all factors which must have been considered by the court below during the course of trial.

Suffice, it would be here to mention that before an injunction in favour of any party is to be granted, three things have to be established; (i) that the party has a prima facie good case; (ii) that the balance of convenience is in favour of the party; (iii) and that it shall suffer an irreparable loss in case the injunction is not granted.

Admittedly, in the instant case, the property in question belonged to the grandmother of the appellants. She was the recorded owner and it is also not in dispute that she was a Hindu. The devolution of the property of a Hindu female in the event of her death shall be governed by Section 15-16 of the Hindu Succession Act. The aforesaid Section gives the categories of relatives who are entitled to inherit the property of both a married and an unmarried woman in the event of her death.

In the instant case, accordingly, the trial court has observed since, admittedly the property in question belonged to the grandmother of the appellants, the same shall be governed by Section 15-16 of the Hindu Succession Act. If seen in this context the property of the deceased grandmother has to be inherited in the first instance by the respondent husband, sons, daughters, etc and it is only when their right to inherit the property is not available, it will go to the other category. Otherwise, the succession will stop at the level where the first category of legal heirs is available. This is what precisely has been done by the learned ADJ in the impugned order. The relevant paragraphs in this regard to show that the Court had correctly in a legal and valid manner dismissed the application of interim relief of the appellants, reads as under:-

(7) As per section 15 of Hindu Succession Act, if any female Hindu dies intestate, the property devolves firstly upon the sons and daughters (including the children of predeceased son or daughter) and the husband, and as per section 16 of Hindu Succession Act if any of the legal heirs mentioned hereinbefore is alive on the date of death of female Hindu then the heirs specified herein alone are entitled to succeed and that too simultaneously.

(8) In the present case grandmother of plaintiffs i.e. Smt. Shiela Relia left behind legal heirs in the aforementioned list of legal heirs. Only they are entitled to succeed. Defendant no. 1, defendant no. 2 both are legal heirs in that category. In view of the fact i.e. father of the plaintiff is alive, plaintiffs herein are not covered in the aforementioned list of heirs. Accordingly, in view of Section 15 and 16 of the Hindu Succession Act, 1956, plaintiffs have no right in the suit property and accordingly have not been able to establish the prima facie case in their favour. In view of the observations made herein, the injunction application is dismissed.

I find no infirmity in the order passed by the learned trial court thereby rejecting the application filed by the appellants under Order 39 Rules 1 and 2 CPC on all three counts: that the appellants have no prima facie case; that the balance of convenience is not in their favour; and that they shall not suffer any irreparable loss. The appeal is without any merits and the same is dismissed.