1. The plaintiff-applicant has filed Suit No.173 of 1971 against his father , brothers and one C. S. Loganathan, seeking a declaration that House No.3, Friends Colony, New Delhi is the joint Hindu family property of the joint Hindu family constituted by the plaintiff his father, and his two brothers and the decree passed by this court in Suit No.506 of 1968 on 26-5-1969 (Delhi) in the suit styled as C. Sc. Loganathan v. P. L. Kapur for transfer of the property in suit is not binding on the plaintiff and the plaintiff cannot be dispossessed in execution of the said decree in execution case No.14 of 1971 or any other execution case. In this suit the plaintiff-applicant has also moved I. A. 749 of 1971 and also I. A.936/71 under Order 39, Rule 1 and 2 and Section 151, Civil P. C. For the issue of an interim injunction against C. S. Loganathan defendant NO. 4 restraining him from dispossessing the plaintiff in any manner from House No.3, Friends Colony, New Delhi till the decision of the suit.
2. My brother Prithvi Raj. J. admitted the suit on 3-5-1971 and ordered summons to the defendants. On the interim applications he issued notice to defendant No.4 and in the mean time ordered that defendant No.4 is restrained from dispossessing the plaintiff in any manner whatsoever from House No.3, Friends Colony, New Delhi. This interim injunction was ordered exparte I.A.782 of 1971 was then moved on behalf of defendant No.4 praying for vacating of the ex parte interim injunction and dismissal of the application for interim injunction moved by the plaintiff. Notice of this application was ordered to the plaintiff. C. S. Loganathan defendant No.4 died and I. A.940 of 1971 was moved on behalf of the legal representatives of defendant No.4 to the same effect as I. A. 782 of 1971. Notice of this application was also give to the plaintiff. The parties have filed their respective replies and affidavits in these three applications. This order will dispose of all four of them.
3. The plaintiff-applicant's case is that he is the son of defendant No.3, P.L. Kapur and brother of defendants Nos.1 and 2, namely, Subash Kapur and Harbans Lal Kapur. The father and the three sons are claimed to constitute a joint Hindu family. It is alleged that the house No.3, Friends Colony, New Delhi is the property of this joint Hindu family and was acquired with the help of joint Hindu family funds. The plaintiff goes on to allege that his brother Harbans Lal Kapur and his father P.L. Kapur colluded in order to deprive the plaintiff of his right as a member of the joint Hindu family owning and possessing of the aforesaid property. In this behalf it is alleged a factitious mortgage was created by defendants Nos. 2 & 3 in collusion with defendant No.4, who is stated to be an old friend of defendant No.3 by which the property 3, Friends colony, New Delhi was mortgaged in favor of defendant No.4. It is also asserted that no loans were ever needed by defendants 2 and 3 or the plaintiff or the joint Hindu family nor were any such loans taken by defendants 2 and 3 for themselves or for the joint Hindu family. As such, it is alleged, there was no occasion to mortgage the property in favor of defendant No.4. With intent to defeat the rights and claims of the plaintiff, it is asserted, defendants Nos, 2 and 3 then got a mortgage suit filed against themselves in this court which was registered as Suit as No.506 of 1968. The plaintiff contends that the suit was not resisted by his father and brothers and a collusive compromise decree was obtained by them for transfer of property No.3. Friends Colony. New Delhi in favor or defendant No.4. the plaintiff asserts that the said compromise decree and transfer of the said property under that decree being collusive at the instance of defendants 2, 3 and 4 was not binding on him and he being an owner of the said property and in actual physical possession thereof in his own right cannot be evicted or dispossessed from the said property nor can his title to the property be questioned by defendant No.4. Since a cloud has been cast on the plaintiff's title in view of the decree said to have been passed in Suit No. 506 of 1968, the plaintiff prays for a declaration as already noticed above. Pending the decision of his suit be prayed that he be not dispossessed.
4. In replay to the application for interim injunction field by the plaintiff, as already noticed two application have been field, one on behalf of defendant No.4 and one on behalf of the legal representatives. Defendants 1, 2 and 3 have not yet put in appearance. The case put forth in reply to the plaintiff's application is that the said property belonged absolutely to P.L. Kapur, defendant No.3 and was his self-acquired property, that the suit of the plaintiff is mala fide and has been field at the instance of his father and brothers against whom a decree was passed in Suit No.506 of 1968 in order to defeat the rights acquired by defendant No.4 under that decree. It is further asserted that defendants 2 and 3 in their individual capacities owed a sum of Rs.10,61,134.50 to defendant No.4 as in December. 1968 and among other things. House No.3, Friends Colony, New Delhi belonging to defendant No.3 in his individual capacity absolutely had been mortgaged to defendant No.4 as security for the debt. As the amounts due from defendants 2 and 3 were not paid. Suit No.506 of 1968 was filed by defendant No.4 in December, 1968 for a decree against defendants 2 and 3 for the aforesaid amount with further interest and in default the properties including the said house to be sold and applied in and towards payment of the dues of defendants Nos.2 and 3. This suit was compromised by the parties to that suit in terms of the memorandum of compromise filed by defendant No.4 and defendants 2 and 3 herein. That compromise was recorded and a decree for money in terms of the said compromise was passed in favor of defendant No.4 and against defendants 2 and 3. It is asserted that no decree for sale of the said house was passed but in terms of the compromise, on the failure of defendants 2 and 3 to pay the decretal amount in partial discharge of the liability under the decree the said property belonging to defendant No.3 was agreed to be sold to defendant No.4. The sale deed was executed by an officer of this court again in terms of the compromise arrival at between the parties. When possession was sought to be taken of the house sold. Defendant No.3, the father, opposed the order for possession but his objection was overruled by the court and the appeals filed by the father P.L. Kapur, in this Court and the Supreme Court were dismissed. It is alleged that having failed there. P.L. Kapur has now got this suit field through one of his sons which goes to prove not only the mala fide intent behind the suit and the application for interim injunction but also its untenability. It has also been averred that the plaintiff was a major both at the time of the consent decree in Suit No.506 of 1968 and at the time of the execution of the sale-deed of the said house. He never opposed the sale nor protested about it till now when he has set up a fictitious title on the basis of his being a member of joint Hindu family which is claimed to own the said property and his being in actual physical possession of the said property as an owner. Alternatively it has been pleaded that assuming that the said property was joint Hindu family property. P.L. Kapur being the father and Karta of the joint Hindu family was in law entitled to sell it or mortgage it in discharge of his debts as long as the debts were not for immoral purposes and were antecedent debts, be it the original mortgage or subsequent sale. It may be noted that no allegation has been made by the plaintiff that the debts of the father were contracted for immoral or illegal purposes. All that has been stated is that no loans were taken by the plaintiff's father or the brother as none were needed by them or by the joint Hindu family.
5. Suit No. 506 of 1968 was filed by C.S. Loganathan against P.L. Kapur, Herbans L. Kapur and Dayanand Anglo Vedic College Trust and Management Society for recovery of Rs.10,61.134/- on the basis of mortgages under Order 34, Civil P.C. In that suit details were given of various borrowings by P.L. Kapur and Harbans L. Kapur from 1965 to 1967 and it was also stated that a mortgage of 3. Friends Colony, was created by P.L. Kapur in favor of C.S. Loganathan in 1967. Prior to that the third defendant in that suit which was a prior mortgagee of this property and transferred the mortgagee rights in favor of C. S. Loganathan. The first mortgage of the said property was for Rupees 1,76,000/- as principal and Rs.16,500/- as interest, in all amounting to Rs.1,92,500/- and the second mortgage was for Rs.7 lacs by way of principal and at the time of the suit the interest due on the principal amount was Rs.1,68,634.50 making a total amount of Rs.8,68,634.50 due on the second mortgage. A total sum, thereforee, of Rs.10,61,134.50 was claimed by C. S. Loganathan in Suit No.506 of 1968, and it was prayed that the court pass a decree directing P. L. Kapur and H. L. Kapur to pay the said amount with future interest, that time date be named by the court of this payment and in default the mortgaged properties maybe sold and proceeds thereof applied in and towards payment of the amount claimed. This suit was compromised between the parties, namely, C. S. Loganathan, P. L. Kapur and Harbans L. Kapur. The terms of the compromise were reduced to writing and submitted to the court with a prayer to record the compromise and pass a decree in terms thereof. Suit No.506 of 1968 was thus decreed on 26-5-1969 on which a money decree for Rs.10,78,654/-, was passed in favor of C. S. Loganathan and against discharge of their liability under the decree to the extent of Rs.8 lacs. House No.3, Friends Colony, New Delhi was agreed to be transferred by P.L. Kapur who under took to sell the same to C. S. Loganathan and it was agreed that in case P. L. Kaur failed to execute and register the sale-deed in favor of the plaintiff within 30 days from the date when the decree was passed the sale-deed would be executed and registered on behalf of P. L. Kapur by an officer appointed in this behalf by this court. P. L. Kapur did not execute a sale-deed as undertaken by him and so an officer of this court was appointed to execute the sale-deed and register the same. This was done in January, 1970. Thereafter C. S. Loganathan sought to obtain possession of the said house sold to him but his efforts were negatived, to start with by P. L. Kapur. It is after this that the plaintiff has now come to court seeking the declaration and the injunction mentioned-above.
6. Mr.R.M. Lal, the learned counsel for the applicant has urged that at this stage the correctness or otherwise of the applicant's allegations that the said house was a joint Hindu family have not to be gone into. The applicant is in possession of the property and claims to be so in his own right as a member of the joint Hindu family. The possession by itself gives to the applicant a prima facie right to retain the same and he cannot be forced to give up possession in execution of a decree which was not passed against him. He, thereforee, contends that a prima facie case has been made out for the issue of an interim injunction. To support his contention the learned counsel relied on the decision of the Privy Council in Ismail Ariff v. Mahomed Ghous. (1893) 20 Cal 834 . As it mentioned in the report the main question between the plaintiff-appellant and the defendant-respondent was whether, on the state of facts that the plaintiff's possession of his purchased land had been interfered with by the defendant, who had no title to it, and was acting of his own wrong, it was or was not sufficient for the plaintiff to prove that he was in quiet possession when the interference took place, without negativing an alleged defect in his title. The Courts below had differed as to whether the claim for a decree declaring the plaintiff's right, and restraining the defendant from interfering with his possession, had been made out. On appeal the Judicial committee held that the plaintiff was entitled to a declaratory decree against this defendant as to his right, and an injunction restraining him from interfering with his possession. For the purposes of the plaintiff's claiming such a decree, it was not necessary that he should negative the wakf, as to the validity of the endowment no decision being needed. This could not be decided either way in this suit, as parties interested were not before the Court.
7. It has been urged that inasmuch as the applicant is entitled to come to court for a declaratory decree against the defendants as to his right as such the injunction restraining defendant No.4 from interfering with the applicant's possession should be granted. It may be noted that the Judicial Committee came to the decision that it did on a finding that lawful possession of land is sufficient evidence of right as owner as against evidence of right as owner as against a person who has no title whatever and who is mere trespasser. In such a case the former can obtain a declaratory decree and an injunction restraining the wrongdoer. The plaintiff-applicant, thereforee, has to establish at least a prima facie lawful possession before he can obtain any assistance from the rule laid down by the Judicial Committee.
8. The rule enunciated by the Judicial Committee and noticed above was relied upon by a Bench of the Madras High Court in B Ayyaparaju v. Secretary of State for India in Council. 37 Mad 298 : AIR 1915 Mad 29. It was held that a person in possession of land even though for less than 12 years, would, under Section 42 of the Specific Relief Act, be entitled to a declaration that he is in lawful possession as against a wrongdoer who interferes with his possession. This was a case where the levy a penal assessment on land was challenged as unlawful interference with possession. On facts it was found that the government had failed to discharge the onus placed on it, that the land in question was such on which a levy could be made. In that view of the matter the plaintiff's possession was held not to be unlawful and the injunction and declaration issued. thereforee it follows that the nature of the possession of the applicant in the present case would have to be established and, prima facie, there is no presumption that merely because he is in possession the possession is lawful or in his own right.
9. In Nand Lal v. Firm Kharaiti Lal chaman Lal, Air 1938 Lah 574, the Lahore High court was concerned with a second appeal arising out of a declaratory suit field by a party regarding his title to a particular property. In execution of his decree the defendant in that suit tried to attach the property of a third party alleging that the third party and the judgment-debtor were joint. The attachment failed twice because the third party alleged that he was independent of the judgment-debtor. Ultimately, the third party telling that he was entitled to assert his right in his property and that not only the decree-holder was interested to deny it but denied it on two occasions, he filed a declaratory suit against the decree-holder for declaration of his rights. This suit was held maintainable and it was further observed by Tek Chand, J. That the plaintiff, the third party was not bound to wait until the defendant decree-holder attached his property and until the plaintiff-third party's objection to attachment was dismissed by court to enable him to file a suit under Order 21, Rule 63, civil Procedure Code. Mr. R. M. Lal has urged that a somewhat similar situation exists in the present case. C. S Loganathan has obtained a decree against P. L. Kapur and K. P. Kapur which the plaintiff's property of which he is in physical possession is sought to be taken, the property being owned by the joint Hindu family of which the plaintiff is a member. It is urged that in these circumstances the plaintiff does not have to wait till C. S. Loganathan disturbs the plaintiff's possession and he comes out to have his rights declared, for denied the same by trying to take possession of House No.3, Friends colony, New Delhi. That the plaintiff has the right to file such a suit could not be commented upon at this stage and can be assumed for the purposes of deciding the three applications. On such assumption the problem that still remains is whether he had placed any material on the record to justify the assumption that he has prima facie a title to the property. If such material has been placed on the record the rule enunciated by Tek Chand, J. Would certainly be attracted. It follows, thereforee, that mere possession would not be enough to claim the issue of an interim injunction for prima facie lawful possession has got to be established.
10. Mr. R. M. Lal also relied on another decision of the Lahore High Court in Uttam v. Tabu. (1928) 10 Lah 48- in which merely on the basis of possession an injunction was issued in favor of the plaintiff restraining the defendants from interfering with his possession. In this case Johnstone. J. Did not give any reasoning for accepting the appeal filed by the plaintiff asserting more possession but it is evident from a reading of the judgment that reliance was placed by the learned Judge on the rule enunciated by the Judicial Committee of the Privy Council in the case of (1893) 20 Cal 834 and so the ratio of the decision must be taken to the same as was propounded in the rule laid down by the Judicial committee of the privy Council.
11. Thus to claim an injunction or an interim injunction on the basis of actual physical possession the plaintiff can succeed in the present case only if there is, prima facie, evidence of the plaintiff being in lawful possession in his own right. In my view there is no such prima facie evidence available on the record. Apart from a bold assessment on the part of the plaintiff-applicant that House No.3, Friends Colony, New Delhi is a joint Hindu family property there is nothing also to support the contention. The plaintiff-applicant has, no doubt, stated that House No.3, Friends Colony was required with the help of joint Hindu family funds but has given no particulars of those funds. That the property stood in the exclusive name of P. L. Kapur cannot be disputed nor has been challenged. P. L. Kapur has himself not appeared in this case but his admission in Suit No.506 of 1968 that the property belongs to him coupled with the fact that Harbans L. Kapur son of P.L. Kapur who also submitted to the decree in Suit No.506 of 1968 did not question the right of P.L. Kapur to transfer this property to C.S. Loganathan and the mortgage by P.L. Kapur of this property in favor of C.S. Loganathan and earlier in favor of Dayanand Anglo Vedic College Trust and Management Society was never questioned by any of the sons prima facie show that the property belonged to P.L. Kapur exclusively. I, thereforee, hold that, prima facie, there is no evidence on record to show that the plaintiff is in possession of House No.3, Friends Colony, New Delhi, in his own right as a member of joint Hindu Family, the property belonging to the joint Hindu family.
12. It has been contended on behalf o f the applicant that a decree for transfer of House No.3 Friends Colony could not be passed in a mortgage suit and so the plaintiff cannot be disposed on the basis of such a decree stated to have been passed in Suit No.506 of 1968. The very premises on which the plaintiff proceeds appears to em to be wrong. No decree for transfer of property was passed in Suit No.506 of 1968. A decree for money had been passed. As has already been held by me in Execution No.14 of 1971 the decree in Suit No.506 of 1968 was a money decree for Rs.10,78,654/- and not a mere declaratory decree but the mode of its execution was also agree to between the parties. The sale was effected by way of satisfaction of the decree in that suit that extent of Rupees 8 lacs. An appeal filed against may order holding as above was dismissed by a Letter Patent's Bench of this Court as well as by the supreme court. There is, thus, no force in this contention advanced on behalf of the applicant.
13. It has been asserted by the applicant that there is no legal transfer of the property in of defendant No. 4 prima facie this contention also is not correct because the transfer has taken place in terms of the compromise arrived at between C.S. Loganathan on the one hand and P.L. Kapur and Harbans L. Kapur on the other in Suit No. 506 of 1968 even if the compromise decree is regarded as nothing more than a contract between the parties.
14. Mr. R.M. Lal has urged that the court had no jurisdiction to pass a decree for sale in a mortgagee suit in Suit No. 506 of 1968 as there was no such prayer in that suit. The contention, primer facie, appears to be ill-founded on a reading of the plaint of Suit. No. 506 of 1968 and on a construction of the decree passed therein which has been held to be a money decree only and not a decree for sale of property.
15. I will now come to the other contention of the applicant that the natural state in a Hindu family as between father and sons is that of a joint Hindu family. No doubt such a presumption exists in law and this presumption would ensure to the benefit of the plaintiff- applicant when he asserts that he, his father, and his brothers constitute a joint Hindu family. There is, however, no presumption in law that a joint Hindu family owns joint family property. Such an assertion has to be positively established and in the present case while dealing with the application for interim injunction has not only to be positively asserted but prima facie evidence placed on record in support of the assertion. Assuming however, that House No. 3. Friends Colony was joint family property the question arises whether P.L. Kapur, the father, could sell or agree to sell this property in discharge of his debts. Hindu law on this aspect is quite clear. Mulla in his celebrated treatise on Hindu law lays down that the father of a joint Hindu family may sell or mortgage the joint family property including the sons interests therein to discharge a debt contracted by him for his own personal benefit, and such alienation binds the son provided (a) the debt was antecedent to the alienation, and (b) it was not incurred for an immoral purpose. This principle is based on the well-known notion that it is the pious duty of a son to discharge his father's debt not tainted with immorality. The mere circumstance, however, of a pious obligation does not validate the alienation. To validate an alienation so as to bind the son, there must also be an antecedent debt. No question of legal necessity arises in such a case. This is settled law and has been reiterated by the Supreme Court in Pannalal v. Mt. Naraini : 1SCR544 . To quote from the speech of that great propounder of Hindu law. B.K. Mukherjea. J.: 'It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead, vide Brij Narain v. Mangla Prasad, 51 Ind App 129 : AIR 1924 Pc 50, Thus it is open to the father, during his lifetime, to effect a transfer of any joint family property including the interest of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit, provided it is not tainted with immorality. It is 'equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such suit and obtain an adjudication from the Court that the debt was a proper debt payable by the sons. But even if the sons are not made parties they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. These propositions can be said to be well recognised and reasonably beyond the region of controversy.'
16. Assuming , thereforee as observed, earlier, that the property in question was joint family property, P.L. Kapur as the father could agree to sell and either sell or cause to be sold the joint family property to meet his antecedent debts and it was not necessary for the sons as other members of the joint Hindu family to be consulted prior to the sale. Mr. R.M. Lal has urged that there was no antecedent debt for the alienations challenged by him comprised of the mortgage in favor of C.S. Loganathan and the sale to him subsequently. The doctrine that the father may sell joint family property for satisfaction of his antecedent debts if the debts were not tainted with immorality would not have any application if the alienation challenged and the debt concerned are concurrent or the debt had been contracted at the time of the alienation. Antecedent debt means antecedent in fact as well as in time i.e. the debt must be completely independent of and not part of the transaction impeached. According to what has been placed on the file till now by the parties the debts both in the case of the impeached mortgage and sale, were antecedent in the present case. The mortgage was effected to cover the debts of P.L. Kapur, the father, and incidentally Harbans L. Kapur, the son contracted between 9th December, 1965 and 21st January. 1967. The mortgage itself was effected somewhere in November, 1967 and also covered the rights under a previous mortgage which was transferred to C.S. Loganathan by a deed of assignment dated 31.8.1967. Thus, the mortgagee's rights in the first mortgage were also acquired by C.S. Loganathan prior to the mortgage of 3. Friends Colony New Delhi in his favor by P.S. Kapur in November. 1967. These debts were not contracted at the time of the impeached mortgage nor formed part of the same transaction. Both in fact as well as in time the debts were antecedent to the mortgage. Regarding the sale it was in payment of a decretal debt. The decree for Rs. 10 lacs and old was passed on 26th May, 1969. In part satisfaction of that decree the sale was effected by a sale-deed dated 3.1.1970. It must, thereforee, be held that prima facie the mortgage as well as the sale were for debts contracted by P.l. Kapur or adopted by him which had been contracted antecedent to the impeached transaction. Such alienations have always been upheld and it was not necessary for the sons to be parties to the transaction. (See in this connection Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh : 1SCR177 and S.M. Borkar. : 1SCR1384 ).
17. Me. R.M. Lal contended that a son cannot be driven to filing objections under Order 21, of the Civil Procedure Code and can maintain a suit to assert his rights. There can be no dispute with this proposition. Section 34 of the Specific Relief Act would be attracted if defendant No. 4 is trying to dispossess the plaintiff who claims to be an owner. It is also true that if the sale is ultimately set aside the entire sale would be bad and not only sale to the extent of the sons share. However these are all matters which have to be decided on trial. At the moment we are only concerned with the prima facie nature of the case and whether on the mere allegations of the son that he is in possession in his own right he is entitled to the grant of interim injunction. In my view the applicant has not made out any prima facie case and so the question of considering the balance of convenience or causing of irreparable injury does not arise.
18. I, thereforee, dismiss I.A. 749 of 1971 and I.A. 936 of 1971 and accept I.A. 782 of 1971 and I.A. 940 of 1971. There will be no order as to costs.
19. Order accordingly.