Delhi High Court
Atin Kanwar Relia & Anr. vs Kanwar Baldev Raj & Anr. on 12 April, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.245/2012 & CM 10413/2012
Decided on : 12th April, 2013
ATIN KANWAR RELIA & ANR. ...... Appellants
Through: Mr.Rajesh Pathak, Advocate.
Versus
KANWAR BALDEV RAJ & ANR. ...... Respondents
Through Mr.H.L.Narula, Advocate for R-1
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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."
10. 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.
V.K. SHALI, J.
APRIL 12, 2013
RN
