Chandra Reddy, C.J.
1. This is an appeal against the order of the Chief Judge, City Civil Court, Hyderabad, declining to grant a temporary injunction restraining the respondents herein from receiving or taking delivery of all or any of the plaint schedule properties either moveable or immoveable, or to receive any amounts from the Receiver-cum-Commissioner appointed in C. S. No. 13 of 1958 on the file of the High Court pending disposal of the suit O. S. No. 23 of 1961 on the file of the City Civil Court, Hyderabad.
2. The application was made under Order 39, Rule 2 pending a suit brought by the appellant in forma pauperis claiming to be the daughter of the Nawab Mir Yousuf AH Khan popularly known as Sir Salar Jung III (hereinafter to be referred to as the Nawab) for a declaration that she is the legitimate daughter of the said Nawab and for possession of his assets and properties.
3. Sir Salar Jung III died on 22-3-1949 leaving behind him enormous private properties and a big jagir which has become the subject-matter of endless litigation.
4. Shortly after his death, the Salar Jung Estate Administration Regulation 1358 F. i. e., 34 of 1358 F. was enacted empowering the Government to appoint a Committee consisting of not more than five persons to be called the Salar Jung Estate Committee for the purpose of the administration of the estate of the Nawab. In exercise of these powers, H. E. II. the Nizam appointed a committee on the 3ist day of May, 1949, consisting of two Judges of the erstwhile Hyderabad High Court to enquire into the report on the succession to the late Nawab and within a few days the Commission entered upon its duties but it could not continue this enquiry for the reason that day order was obtained by some of the claimants in an application for the issue of a writ of certiorari questioning the validity of the 'Regulation and the powers of the Committee to hold an enquiry in that behalf. Finally, a Full Bench of that High Court decided that the Committee was not the proper forum for adjudicating the various questions that arose from the deceased Nawab's succession case. Meanwhile, the Union Parliament put on the Statute Book the Nawab Salar Jung Bahadur Administration of Assets Act, 1950 (Act XXXVI of 1950) vesting all the assets of the Nawab in the Salar Jung Estate Committee appointed for the purpose of administering the estate of the Nawab under the Salar Jung Estate Administration Regulation of Hyderabad adverted to above.
5. After the decision of the High Court of Hyderabad, the 1st, 2nd and nth respondents herein filed suits in the City Civil Court as the heirs of the deceased Nawab claiming all his properties. All the suits were withdrawn to this Court and one of them was tried as C. S. No. 13 of 1958. To this suit were impleaded the then Government of India, the then Government of Hyderabad and the Salar Jung Estate Committee as parties. The suit ended in a compromise entered into between all the parties in 1959 and a memo embodying the terms thereof was filed into Court purspant to which a preliminary decree was passed by Kumarayya, J. Consequent upon this compromise to which the plaintiff and the defendants in the other suits were parties, the other two suits were withdrawn.
6. The scheme of the compromise was that the heirs of the Nawab should relinquish their claim to the Museum known as the Salar Jung Museum, the library and some other items of property set out therein in favour of the Union Government in consideration of which the Government of India, the. Andhra Pradesh Government (which by then had come into being as a result of the reorganisation of States) and the Salar Jung Estate Administration Committee gave up their claim to the other assets of the Nawab.
7. It is this decree that is challenged by the appellant on the contention that the parties to the suit had no manner of right or claim to the properties in this litigation and that the compromise itself was collusively obtained.
The claim of the appellant is founded on the allegation that she is the daughter of the late Nawab having been begotten through a woman railed Tarabi alias Tarabai in or about the year 1923, the Nawab having contracted Mootha marriage with Tarabai for a period of ten years and for a dower of RS. 15,000/- that she was being brought up by the Nawab as his legitimate daughter, that the Nawab left no heir other than the appellant and, as such, she is exclusively entitled to all the properties left by him. She described herself as Chand Sultana alias Indra Bai.
8. Her claim was resisted by several, of the defendants. During the pendency of the suit, she has presented the petition giving rise to this appeal for the relief of temporary injunction alleging that if the assets were allowed to be distributed to the respondents, she would be put to irreparable loss and that the suit itself might become infructuous.
9. Respondents 1, 2, 5 and 6 filed counter denying the claim of the appellant to be the heir of the Nawab, and alleging that she was only a Hindu by birth and continued to be so, that she married a Hindu by name Krishnamurthi and has children by him, that she always regarded herself as a Hindu, that in the relevant voters' list prepared by the Municipal Corporation of Hyderabad, she was shown as a Hindu, that she had assumed the name of Chand Sultana only for the purpose of the suit, that her mother Tarabai was a dancing girl and was never married to the late Nawab and that her pretensions to the heirship of the properties of the Nawab were unfounded.
It was added to those counters that before the Committee appointed by H. E. H. the Nizam to enquire into the succession of the matruka properties and the Jagirs of the late Nawab, the plaintiff never claimed any share in the said properties but only asked for maintenance on the ground that she was the illegitimate daughter of late Nawab. As supporting their allegations, certified copies of applications to the Co-operative Society for loans or for some other purpose and also a copy of the petition put in by her before the Salar Jung Estate Committee appointed by the Nizam to enquire into the succession asking for maintenance were annexed to the affidavit as enclosures.
10. In support of her case that she is the legitimate daughter of late Nawab, she filed a letter alleged to contain an endorsement made by the late Nawab calling her Chand and the affidavit of a doctor by name Wadia to the effect that the plaintiff was the daughter of the late Nawab Mir Yousuf Ali Khan and that he had been treating her as such during his life time.
11. On the material that was placed before the trial Court, it came to the conclusion that the plaintiff had not established a prima facie case that she was the daughter of the late Nawab and consequently refused to grant the temporary injunction. It is this order that is under appeal now.
12. Learned counsel for the appellant challenges the conclusion of the trial Court on the ground that it is based on inadmissible evidence. It is urged by him that the trial Court has relied on certified copies of petitions put in by her before the Secretary of the Co-operative Society of the late Nawab Salar Jung's estate and on her petition for maintenance filed before the above mentioned committee. These documents could not be regarded as copies of public documents and the persons who granted the certified copies were not authorised to do so and as such the trial Court erred in calling in aid these documents in support of its conclusions. If these certified copies are excluded from consideration, the inference is inevitable that the plaintiff has made out a prima facie case to enable her to claim relief under Order XXXIX, Rule 2, continued the counsel for the appellant.
13. Another contention urged by him is that only condition to be satisfied before relief could be granted under Order XXXIX, Rule 2 is that there should be a triable issue and in this case it is argued that, that condition is fulfilled, as the suit raised the, issue whether the plaintiff is the daughter of late Nawab Salar Jung.
14. The simple question that requires determination is whether the plaintiff has established circumstances which entitle her to the relief of temporary injunction. It is in the decision of this question that the various points raised by the learned Counsel become relevant.
15. We shall first consider whether the order under appeal is ia any way vitiated and whether any rules of evidence have been violated by the trial Judge. It is unnecessary for us to consider whether a petition filed before the Secretary of a Cooperative Society is a public document and whether the Secretary thereof is empowered to grant certified copies of documents, having regard to the fact that, de hors the contents of those documents, there are admissions made by the plaintiff serving the same purpose which will be referred to presently to the same effect.
16. Coming to the argument that certified copy of the application for maintenance before the Salar Jung Estate Committee partakes of the same character, we think it is devoid of substance. It cannot be posited that a petition filed before an authority appointed under statutes enacted by the Hyderabad State Legislature and by the Union Parliament is not a public document. It cannot also be disputed that the Board of Revenue, to whom the records were transferred after the abolition of the committee and which granted certified copies, is not authorised in that behalf. We cannot therefore give effect to this contention.
17. We will next consider whether the Civil Judge has made such use of these documents as has affected the validity o the order. It does not appear from the order that the trial Court has relied on copies of applications put in by her before the Co-operative Society.
18. Reverting to the argument bearing on the copies of applications to the Secretary of the Cooperative Society, it may be mentioned here that the purpose of annexing these documents to the affidavit was to establish that the plaintiff had described herself in all the petitions and in all the receipts passed by her as Indra Bai. These facts she had admitted in her cross-examination and as such it was not necessary for the learned Judge to rely upon those documents. It was elicited in her cross-examination :
'There is a co-operative Society of the persons receiving allowance from the estate of SalarJung. I am also a member of that Society. Ihad applied for loans from the society. In myapplications I had signed as Indra Bai. The receipts passed by me acknowledging payments fromthe society are also signed by me as Indra Bai. Inthe surety bond executed also for borrowing moniesfrom the society my name is shown as Indra Bai.'She further admitted that she had never signedin any document as Chand Sultana. According toher, even the application filed by her before theSalar Jung Estate Committee was signed by heras Indra Bai.
Therefore even independent of the copies of the applications made to the Co-operative Society, there is abundent evidence in the shape of her admission that she always called herself Indra Bai and not Chand Sultana. That being the position, the first limb of the argument of the learned counsel for the appellant is without substance and has to be repelled.
18a. As regards appellant's application filed before the Salar Jung Estate committee for maintenance, it is alleged in the counter-affidavits that she asked for maintenance on the ground that she was the illegitimate daughter of the Nawab, her mother Tarabai being his permanent mistress and that she did not put forward any claim to the properties as the heir of the Nawab. The trial Court was entitled to take into consideration the allegations in the counter-affidavit by reason of Order 19 Rule 3 C. P. C. Moreover, these documents were filed as annexures to the affidavit to lend support to the statements therein. That apart, it instated from the Bar that the attention of the appellant was specifically drawn to the relevant contents of the document, namely that she was the daughter of Tarabai who was the kawas of the late Nawab i. e., mistress and that she was being maintained by her putative father during his life time. This is not contradicted.
19. Besides, this is probabilised by the answers of the appellant that:
'It is not true to suggest that in my application to the Commissioner I described my mother as concubine of Nawab Salar Jung III, I am not aware if I have been described as illegitimate daughter of the Nawab. I am also not aware that the application shows that I have claimed only maintenance. That application was not read over to me before I signed without knowing the contents. I reposed confidence in Turab Yar Jung and therefore I signed without knowing the contents of my application'.
20. These answers make it abundantly clear that the contents of this document were put to her but she denied them in one place and in another she tried to explain them away by stating that Turab Yar Jung obtained her signature on the application without acquainting her with the contents thereof. It is true that this document was not marked but here again we are told by Sri Ramaswami Ayyangar appearing for the respondents that the Counsel on either side referred to all the documents filed along with the affidavits without any objection from other and that otherwise, they would have had the documents marked even at that stage.
In addition to it, if the petition did not obtain the averments referred to above, what was the necessity for her to state that she reposed confidence in Turab Yar Jung and that he betrayed that trust? This could only be on the hypothesis that the petition contained those recitals and they were falsely introduced by Turab Yar Jung into the petition. How far this explanation could be accepted having regard to the fact that the application was in Urdu, that the appellant could read and write Urdu, and that she was already married by that time is another matter and need cot be adjudicated upon at this stage. Her evidence on this part of the case suggests that the state- meats put to her were embodied in that application and in that situation even if this statement of the trial Court is based on the certified copy of the application, no exception could be taken to it and it could not be posited that it has violated any rules of practice. So, we do not think that the argument of the Counsel for the appellant that the trial Court relied upon inadmissible evidence is sound.
21. Even supposing that this information has to be excluded for any reason, does it make any difference for the purpose of this enquiry? It is submitted by the learned counsel for the appellant that, if this is disregarded, we are then left with the evidence of the appellant, the affidavit of Dr. Wadia and Ex. A-1.
22-31. (His Lordship considered this evidence and continued.)
32. Proceeding on the assumption that this document was genuine, it does not carry the appellant very far because the reply only refers to Chand, which means the 'moon' and it does not say Chand Sultana. Further, it has already been stated that there is nothing on record to show that, before the filing of the suit, she was ever known by the name of Chand Sultana. In this situation, we are unable to agree with the learned Counsel for the appellant that she had established a prima facie title to the property. On the available material, it is difficult to say that there is a probability of the judgment being entered for her.
33. The learned counsel alternatively contends that, at this stage, the Court is not concerned with the question whether there is likelihood of the appellant succeeding in the suit, which consideration is pertinent only at the time of the final disposal of the suit but the only consideration that should enter judicial verdict now is whether there is a triable issue in the case and the question whether she is the daughter of the Nawab or not being in issue, the property has to be preserved so that any decree she might obtain may not be rendered ineffectual.
34. As substantiating this proposition, the learned counsel relies on the following rulings : In Chandidat Jha v. Padmanand Singh Bahadur, ILR 22 Cal 459 it was observed that there was a distinction between a case in which a temporary injunction might be granted and & case in which a Receiver might be appointed and, in either case, it should be established that the property should be preserved. In the former case, it would be sufficient if it be shown that the plaintiff in the suit had a fait question to raise as to the existence of the right alleged; while in the latter case, a good prima facie title had to be made out.
35. It should be noted that the question that posed itself before the Division Bench was whether a Receiver could be appointed or not. While dealing with that controversy, they made observations :
'Even otherwise it could not be said that the expression has a fair question to raise' could be equated to there being a triable issue'. This decision is of no help to the appellant as it was only a passing observation and they were not called upon to solve the problem arising under Order 39 Rule 2 C. P. C. Further, we do not think that they have used the expression 'fair question to be raised' as being equivalent to a triable issue to raise.
36. Preston v. Luck, (1884) 27 Ch D 497 called in aid by the appellant does not also come to the rescue of the appellant. The passage on which reliance is placed for the appellant occurring at the bottom of pages 505 and 506 is :
'Of course in order to entitle the plaintiff to an interlocutory injunction, though the court is not called upon to decide finally on the right oi the parties, it is necessary that the Court should be satisfied that there is a serious question to be tried at the bearing, and that on the facts before it there is a probability that the plaintiffs are entitled to relief'.
37. We do not know how these observations advance the case of the appellant. It is true that at that stage the Court is not required to give a final decision on the rights of the parties. But the learned Lord Justice had made it abundantly clear that it was only in cases where there was a serious question to be tried and on the material as placed before the Court at that time there was a probability that the plaintiff would obtain relief that a decision could be given. This does not warrant the view which the learned counsel sought to press upon us that the existence of triable issue would be enough to entitle the plaintiff to get a temporary injunction.
38. The same Lord Justice in Challender v. Royle, (1887) 36 Ch D 425. propounded the test in the following words :
'It is very true that in all cases of interlocutory injunction the court does consider and ought to consider the balance of convenience and inconvenience in granting or refusing the injunction. But there is another very material question to be considered; has the plaintiff made out a prima facie case That is to say if the evidence remains as it is, is it probable that at the hearing of the action he will get a decree in his favour Therefore, although I quite agree that the court ought not on an interlocutory injunction to attempt finally to decide the question whether the act complained of is an infringement or (if the question of the validity of the patent is raised) whether the patent is a valid one or not, yet in my opinion it ought to be satisfied that on one or both of those two points, the plaintiff in the action has made out a prima facie case'.
39. Thus, the dictum in (1884) 27-Ch D 497 is not in any way inconsistent with the principle enunciated by the Lord Justice in this case.
40. Another case cited for the appellant as lending support to her case in Brajendra Nath v. Kashi Bai, AIR 1946 Pat 177: ILR 24 Pat 656. The rule stated by the Bench of the Patna High Court, which according to the appellant countenances the theory propounded by her is that in order to make out a prima facie case necessary for an interlocutory injunction, the plaintiff need not establish his title, and it is enough i the plaintiff can show that he has a fair question to raise as to the existence of the right which fie alleged and can satisfy the Court that the property in dispute should be preserved in its present actual condition until such question can be disposed of.
41. We do not think that this decision could be regarded as an authority for the proposition that no prima facie case need be made out. In our opinion, this ruling does not indicate a different approach to the problem.
42. No exception could be taken to the principle that a plaintiff need not establish a clear title for getting an interlocutory injunction. But, as stated by the learned Judges, he has to show that he has raised a fair and substantial question which has to be tried. This, in our opinion, is not the same thing as saying that the existence of a triable issue will quite do to enable the plaintiff to get an injunction. If, however, this decision is intended to lay down that the requirement of the probability of the plaintiff succeeding in the suit need not be satisfied, we must respectfully express our dissent from it.
43. In Rameswar Prasad Singh v. Md. Ayyub, : AIR1950Pat527 after referring to a relevant passage from AIR 1946 Pat 177: ILR 24 Pat 656 it was remarked that
'the Court has to consider on prima facie grounds the existence of the legal right alleged and the respective strength and weakness of the cases of the parties. The mere fact therefore that the points raised are points which will ultimately have to be decided as issues in the suit does not exclude them from the consideration of the court at the stage o an application for a temporary injunction'.
44. These observations of the learned Judges make it plain that they understood AIR 1946 Pat 177 : ILR 24 Pat 656 as laying down, that the plaintiff had to make out a prima facie case which, implies the existence of a substantial question to be decided and the probability of the plaintiff obtaining a relief on the material placed before the Court at that stage.
45. In our considered judgment, the plaintiff could succeed in getting an interlocutory injunction only when a prima facie case is made out; in other words, when on the evidence as it remains there is a probability that the plaintiff is entitled to relief. Unless this condition is satisfied, Order 39, Rule 2 C. P. C. could not be successfully invoked. It would be wrong for a court to grant an injunction merely on the ground that the plaintiff had filed the suit claiming relief. If the submission of the Counsel for the appellant is to be accepted, a plaintiff has only to bring a suit for a particular relief before he or she could obtain an interim injunction. Surely it would not have been the intendment of Order 39 Rule 2. We cannot therefore subscribe to the view that the mere institution of a suit claiming relief setting up title to the property would entitle the plaintiff to relief under Order 39 Rule 2 C. P. C. On the other hand, the plaintiff must satisfy the Court that there is a fair and substantial question to be tried and there is a probability of his or her obtaining a decree if the evidence remains as it is'. -- We are not satisfied that that test is satisfied in this case.
46. We are supported in this view of ours by the rulings of the Madras High Court in Gopayya v. Sobhanadri, AIR 1927 Mad 188; Meyyappa Chettiar v. Gopalakrishna Ayyar, AIR 1939 Mad 750 and Aboobucker v. Kunhamoo AIR 1958 Mad 287.
47. It should also be borne in mind that the grant of a temporary injunction under the powers derived from this rule is a matter of discretion. Of course, this discretion must be exercised on sound principles. If the trial court rightly appreciates the facts and applies the principles, that should determine the exercise of discretion to the facts, that is sound exercise of judicial discretion and the appellate court will not be justified in disturbing its conclusion. It cannot be said in this case that the trial court either did not understand the facts correctly or did not apply the true principles to the facts. It should not be understood that we have decided finally on the claim of the appellant. The foregoing discussion is only in the context of the question whether a prima facie case has been made out or not.
48. Three other contentions are urged by the appellant before us (i) that if a man and woman co-habited with each other continuously for a prolonged period, the presumption of lawful marriage would arise and it would be sufficient to establish lawful marriage between them; (ii) that a marriage between a Hindu woman and a Muhammadan is only an irregularity and as off-spring of that marriage is a legitimate child and as such the fact that the appellant's mother was a Hindu before her marriage would not in any way affect status of the appellant and (iii) the compromise decree which is sought to be impeached in the suit is void for the reason that the previous consent of the Central Government was not obtained as contemplated by Section 8 of Nawab Salai Jung Bahadur (Administration of Assets), Act, 1950.
49. It is unnecessary to make a detailed examination of these submissions for various reasons. For the present purpose, it is sufficient to observe that apart from these questions not having been agitated in the trial court and the grounds not having been raised in the memorandum of grounds of appeal, they do not seem to be substantial also.
50. As regards the presumption of lawful marriage, it would arise if it is established that the plaintiff's mother and the late Nawab cohabited with each other continuously for a prolonged period. As stated supra, no evidence of an acceptable kind has been placed before us that they co-habited with each other continuously for a prolonged period. We do not want to say anything further at this stage as it is likely to cause embarrassment to the trial judge.
51. On the second contention, it may bs stated that Ameer Ali in his Muharnmadan Law expresses the opinion that under Shia law, the issue of marriage between a Muslim and a non-Muslim are illegitimate for the Union is regarded as nugatory ab initio and in the Hanafi system there is a great difference of opinion regarding the status of the children.
52. It is not disputed in this case thatSalar Jung III was a Shia. However, it is unnecessary for as to go further than this as this issue has to he ultimately decided at the hearing of the suit.
53. Coming to the last submission based upon Section 8 of the Nawab Salar Juny Bahadur (Administration of Assets) Act, 1950, it also seems to be unsubstantial. For one thing, before she could assail the decree, the appellant must establish her right to the estate and secondly that the compromise was entered into between the respondents and the Union Government, the Government of Andhra Pradesh and the Salar Jung Administration Committee.
54. Further, it was laid down by a Full Bench of the Hyderabad High Court in Tahira Begum v. State of Hyderabad, ILR (1953) Hyd 1 : (AIR 1953 Hyd 105) '(FB) that neither section 4 of the Regulation nor Section 8 of the Nawab Salar Jung Bahadur (Administration of Assets) Act. 1950 bars any claimant from having recourse to a court of law. This topic need not detain us any further for the reason that it the appellant succeeds in establishing her claim as the legitimate daughter of the late Nawab the decree which is the subject matter of attack does not stand in the way of her succeeding to his estate.
55. For these reasons, the appeal and C. M. P. are dismissed with costs. The interim injunction is dissolved.