SHASHI KAPUR Vs. SUBHASH KAPOOR

JUDGEMENT

(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. S. 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 Procedure Code 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 ex parte 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 L A. 782 of 1971. Notice of this application was also given 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 fictitious 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 favour 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 favour 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 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 favour of 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.