# Saurabh Gupta v. Smt. Archna Gupta & Ors

- **Citation:** (2024) 2 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-15
- **Case number:** First Appeal From Order No. 321 of 2023
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saurabh-gupta-v-smt-archna-gupta-ors-51442
- **Pages:** 6

## Headnote

Ankit Srivastava, R.B.S. Rathaur, Rajneesh
Maurya

...
Prohibition
of
Benami
Property
Transactions Act, 1988-Section 2(9)(b)
(iii)- Appellant filed a Civil Suit- impleading the
respondents as defendants- for a declaration
that he is the co-sharer of 1/4th part -property
belongs to joint family-e it was purchased by
the
father
of
the
appellant-
injunction
application - rejected-impugned- Sectiontion
2(9)(b) (iii) of Act, 1988 -prescribes that if the
husband purchased the property in the name of
his wife or children-the same will not be said to
be Benami property-but will be deemed to be
purchased by the husband out of his source-
prima facie the property is joint Hindu family
property-protection
of
property
from
transferring to a third party is necessaryimpugned order set aside-Appeal allowed.

Held:

This Court under Sectiontion 114 of Indian
Evidence Act may presume the existence of fact
that the property purchased by Hindu husband
in the name of his spouse, who is homemaker
and does not have independent source of
income, will be the property of family, because
2 All. Saurabh Gupta Vs. Smt. Archna Gupta & Ors.
59
in common course of natural event Hindu
husband purchases a property in the name of
his wife, who is homemaker and does not have
any source of income for the benefit of family.
(E-9)

Cases cited:

## Text

58 INDIAN LAW REPORTS ALLAHABAD SERIES
and not as mandatory provision as no
sanction is attached in case of non-signing
of the order-sheet by the Chairperson. In
other words, such interpretation abides by
the very language of Section 6 of the Parent
Act i.e. Act of 2002 which clearly provides
that Chairperson can constitute a Bench
either with one Member or with two
Members and in case, there is a matter of
substantial importance which requires
hearing by two Members Bench, he can
transfer a matter from one Member Bench
to a Division Bench/ Two Members Bench.
The "Bench" does not necessarily mean a
Division Bench as is the established
practice in all judicial fora. Even a Bench
of the High Court having a single Judge is
referred to as a "Bench" and acts as a
Court.

(30) This Court is also of the
considered opinion that the law was settled
by the Constitution Bench of the Hon'ble
Supreme Court in the case of N.P.
Ponnuswami
Vs.
Returning
Officer
reported in AIR 1952 SC 64, where it was
categorically held that where rights and
liabilities are created under statute and
remedies are provided in the statute then
such remedies should be availed of first
before the extraordinary Writ jurisdiction
under Article 226 of the Constitution of
India can be invoked.

(31) This Court is of the considered
opinion that the petitioner has remedy of
approaching the Adjudicating Authority by
filing his reply and he should file his reply
taking all legally permissible grounds as
are available to him, and if he is then
aggrieved, he has liberty to approach the
Appropriate Forum.

(32)
 The
writ petition
stands
dismissed.

(33) No order as to costs.
----------
(2024) 2 ILRA 58
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.02.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

First Appeal From Order No. 321 of 2023

Saurabh Gupta ...Appellant
Versus
Smt. Archna Gupta & Ors. ...Respondents

Counsel for the Appellant:
Vipul Gupta, Pritish Kumar

Counsel for the Respondents:
Ankit Srivastava, R.B.S. Rathaur, Rajneesh
Maurya

...
Prohibition
of
Benami
Property
Transactions Act, 1988-Section 2(9)(b)
(iii)- Appellant filed a Civil Suit- impleading the
respondents as defendants- for a declaration
that he is the co-sharer of 1/4th part -property
belongs to joint family-e it was purchased by
the
father
of
the
appellant-
injunction
application - rejected-impugned- Sectiontion
2(9)(b) (iii) of Act, 1988 -prescribes that if the
husband purchased the property in the name of
his wife or children-the same will not be said to
be Benami property-but will be deemed to be
purchased by the husband out of his source-
prima facie the property is joint Hindu family
property-protection
of
property
from
transferring to a third party is necessaryimpugned order set aside-Appeal allowed.

Held:

This Court under Sectiontion 114 of Indian
Evidence Act may presume the existence of fact
that the property purchased by Hindu husband
in the name of his spouse, who is homemaker
and does not have independent source of
income, will be the property of family, because
2 All. Saurabh Gupta Vs. Smt. Archna Gupta & Ors.
59
in common course of natural event Hindu
husband purchases a property in the name of
his wife, who is homemaker and does not have
any source of income for the benefit of family.
(E-9)

Cases cited:

1. Kuldeep Sharma & ors. VsSatyendra Kumar
Sharma & ors.; AIR 2001 Alld 366

2. Dalpat Kumar & anr. Vs Prahlad Singh & ors.;
AIR 1993 SC 276

3. Smt. Ranibai alias Mannubai Vs Smt. Kamla
Devi & ors.; AIR 1996 Supreme Court 1946

4. VSD. Tripathi & ors. Vs Vijai Shanker Dwivedi
& ors.; AIR 1976 Allahabad 97

5. Cotton Corporation of India Limited Vs United
Industrial Bank Limited; 1983(4) SCC 625

6. Manohar Lal Sharma & ors. Vs Pyare Lal &
ors. in Sectiono nd Appeal No.2627 of 1974
decided on 21st October, 1986

7. Kuppala Obul Reddy Vs Bonala Venkata
Narayana Reddy (dead) through Lrs; AIR 1984
Supreme Court 1171

8. Bhagwat Sharan (Dead Thr. Lrs) Vs
Purushottam; AIR 2020 SC 2361

9.
Neon
Laboratories
Ltd.
Vs
Medical
Technology Ltd. & ors.; 2016 (2) SCC 672

10. Zenith Metaplast Pvt. Ltd. Vs St. of Mah. &
ors.; 2009 (10) SCC 388

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Pritish Kumar, learned
counsel for the appellant as well as Sri
Ankit Srivastava and Sri R.B.S. Rathaur
learned counsel for respondent no.2.

2. No one appears on behalf of
respondent no.3 despite service of notice.

3. Present appeal has been filed
against the order dated 25.07.2023 passed
by Civil Judge (S.D.), Hardoi in Civil Suit
No.23 of 2023 (Saurabh Gupta vs Smt.
Archna Gupta and others) by which the
injunction application filed by the appellant
under Order 39 Rule 1 and 2 of C.P.C.
(application no.13(g) has been rejected.

4. The crux of the matter is that the
appellant filed a Civil Suit No.23 of 2023,
impleading the respondents as defendants,
for a declaration that he is the co-sharer of
1/4th part of the property in dispute as the
property belongs to joint family property
because it was purchased by the father of
the appellant, who is also the husband of
respondent no.1 in the name of respondent
no.1. In the suit above, the specific plea
was taken that respondent no.1 was the
house maker and did not have any
independent source of income. Through a
sale deed dated 20.10.1986, the appellant's
father purchased the property in dispute
from Ram Ratan Gupta. It was further
mentioned in the plaint that the appellant
also made construction over that plot, and
thereafter, the entire family has been
running a business therein, and this
complex is also known as R.C. Complex.
Therefore, an application under Order 39
Rule 1 and 2 C.P.C. was filed during the
pendency of the present suit with a prayer
that the respondent may be restrained from
transferring the same. In the written
statement, respondents have stated that the
aforesaid property has been gifted by
respondent no.1 to respondent no.2. The
application above for interim injunction has
been dismissed by the Court below vide
order dated 25.07.2023.

5. Contention of counsel for the
appellant is that respondent no.1 was a
homemaker
and
did
not
have
any
60 INDIAN LAW REPORTS ALLAHABAD SERIES
independent
income,
and
his
father
purchased the property in dispute in the
name of respondent no.1 (wife), therefore
property belongs to the joint family
property and not an individual property of
respondent no.1. It is further submitted that
the appellant as well as respondent no.2,
have been jointly running a business of
selling toy in the property above.

6. It is also submitted by counsel for
the appellant that in the gift deed,
respondent no.1 admitted that she is
homemaker and had she been a working
women and having source of income, then
this fact would have been mentioned in the
gift deed itself, but she chose to mention
herself as a homemaker.

7. In support of his contention,
counsel for the appellant has also relied
upon the judgment of Co-ordinate Bench of
this Court in the case of Kuldeep Sharma
and others vs Satyendra Kumar Sharma
and others; AIR 2001 Alld 366, wherein it
was observed that if Hindu husband
purchases a property in the name of his
wife, who is homemaker then it is to be
presumed that it is a benami transaction
unless otherwise shown to be purchased by
the wife from her source of income. He
further relied upon the judgement in the
case of Dalpat Kumar and another vs
Prahlad Singh and others; AIR 1993 SC
276, in which the Hon'ble Supreme Court
observed in para 5 that for the purpose of
injunction, a prima facie case is not to be
confused with a prima facie title, which has
to be established, on evidence at the trial
and while granting injunction, the Court
should consider the party seeking relief
does not have any remedy available except
one to seek an injunction and he needs
protection
from
the
consequence
of
apprehended injury or dispossession.

8. Counsel for the appellant further
relied upon the judgement of Apex Court in
the case of Smt. Ranibai alias Mannubai
vs Smt. Kamla Devi and others; AIR
1996 Supreme Court 1946, in which
Hon'ble Apex Court observed that the
injunction should be granted in the suit for
a declaration if the Court feels protection is
to be given in the pending suit. Therefore,
he lastly submitted that a prima facie case
for granting injunction has not considered
by the Court below. Thus, considering this
fact, as well as the legal position that the
property purchased in the name of the
homemaker by the husband will be deemed
to be the property of joint family property,
the appellant is entitled to 1/4 share in the
property in dispute, therefore his right
should be protected by restraining the
respondents from creating any 3rd party's
right.

9. Per contra, learned counsel for the
respondent nos. 1 and 2 has submitted that
in present case application for an injunction
under Order 39 Rule 1 and 2 C.P.C. itself is
not maintainable as no final relief was
claimed in the plaint, which is in nature of
permanent injunction.

10. In support of his contention,
learned counsel for the respondent nos.1
and 2 has relied upon the judgement of the
co-ordinate Bench of this Court in the case
of V.D. Tripathi and others vs Vijai
Shanker Dwivedi and other; AIR 1976
Allahabad 97, in which Court observed
that there was no prayer for permanent
injunction restraining the defendant from
suspending the plaintiff, then prayer for
interim injunction cannot be granted under
Order 39 Rule 1 and 2 C.P.C. because
prayer for an interim injunction should not
be different from final prayer in the plaint
and also the judgement of Apex Court in
2 All. Saurabh Gupta Vs. Smt. Archna Gupta & Ors.
61
the Cotton Corporation of India Limited
vs United Industrial Bank Limited;
1983(4) SCC 625 in which Hon'ble Apex
Court observed that the power to grant a
temporary injunction was conferred in aid
or as auxiliary to the final relief that may be
granted. If the final relief cannot be granted
in terms, as prayed for, temporary relief in
the same terms can hardly be ever granted.
In another judgement relied by the
respondent in the case of Manohar Lal
Sharma and others vs Pyare Lal and
others in Second Appeal No.2627 of 1974
decided on 21st October, 1986, this Court
observed that there is no presumption that a
Hindu
joint
family
owns
the
joint
properties unless it is established that it had
sufficient nucleus to acquire that property.
In another judgement relied upon him in
the case of Kuppala Obul Reddy vs
Bonala Venkata Narayana Reddy (dead)
through Lrs; AIR 1984 Supreme Court
1171, in which Hon'ble Apex Court
observed that there may be a presumption
that the joint family but not for the
possessing of joint family property. In
another judgement of the Supreme Court in
Bhagwat Sharan (Dead Thr. Lrs) vs
Purushottam; AIR 2020 SC 2361, the
Hon'ble Supreme Court observed that
unless the material is produced to show that
payment was made to purchase the
property out of the fund of HUF, the
property cannot be said to belong to HUF.

11. After considering the rival
submissions of learned counsel for the
parties and on perusal of the record, it is
clear that the father of appellant had
purchased the property in dispute, who was
also the husband of respondent no.1. There
is nothing on record which shows that
respondent No. 1 had any independent
source of income. Though the husband can
purchase a property in the name of his wife
as a gift to her to make her absolute owner
of that property, but that would come, only
after the evidence is adduced. The Coordinate Bench of this Court has already
observed that once a property is purchased
by a Hindu husband in the name of his
wife, who is homemaker, then the property
will be deemed to be purchased by the
husband himself from his source unless the
contrary is proved. Secondly, it is also
evident from the judgment of the Apex
Court in Smt. Ranibai alias Mannubai
(supra) that even in the suit for declaration
as an application under Order 39 Rule 1
and 2 read with Section 151 C.P.C. is
maintainable for the protection of property,
which is the subject matter of suit if the
Court finds protection of the subject matter
is necessary, and if protection is not
granted, the same may result in irreparable
loss to the complainant.

12. Proviso (iii) of Section 2(9)(b) of
Prohibition
of
Benami
Property
Transactions Act, 1988 also prescribes that
if the husband purchased the property in the
name of his wife or children, then the same
will not be said to be Benami property but
will be deemed to be purchased by the
husband out of his source.

13. Law relating to granting interim
injunction during the pendency of suit is
well-settled which was reiterated by the
Apex Court in several judgements. In the
case of Neon Laboratories Ltd. vs
Medical Technology Ltd. and others;
2016 (2) SCC 672, Hon'ble Apex Court
observed as under;

"However, it is now entrenched in
our jurisprudence that the appellate Court is
not flimsily, whimsically or lightly interfere
in the exercise of discretion by a subordinate court unless such exercise is
62 INDIAN LAW REPORTS ALLAHABAD SERIES
palpably frivolous. Perversity can pertain to
the
understanding
of
law
or
the
appreciation of pleadings or evidence."

14. Hon'ble Apex Court in the case of
Zenith Metaplast Pvt. Ltd. vs State of
Maharastra and others; 2009 (10) SCC
388, while laying down the law relating to
granting the injunction, observed that the
interim order is a temporary arrangement to
preserve the status quo till the matter is
decided finally, to ensure that the matter
does not become infructuous or a fait
accompali before the final hearing. It also
further observed that the grant of a
temporary injunction is governed by three
basic principles, i.e. prima facie case,
balance of convenience, and irreparable
injury, which must be considered in a
proper perspective in the facts and
circumstances of the particular case. For
reference para 30, 31 and 37 of the above
judgments are quoted as below;

"30. Interim order is passed
based on prima facie findings, which are
tentative. Such order is passed as a
temporary arrangement to preserve the
status quo till the matter is decided finally,
to ensure that the matter does not become
either infructuous or a fait accompli before
the final hearing. The object of the
interlocutory injunction is to protect the
plaintiff against injury by violation of his
right for which he could not be adequately
compensated in damages recoverable in the
action if the uncertainty were resolved in
his favour at the trial (vide Anand Prasad
Agarwalla v. Tarkeshwar Prasad [(2001) 5
SCC 568] , and State of Assam v. Barak
Upatyaka
D.U.
Karmachari
Sanstha
[(2009) 5 SCC 694 : (2009) 2 SCC (L&S)
109] ).

31. Grant of an interim relief in
regard to the nature and extent thereof
depends upon the facts and circumstances
of each case as no straitjacket formula can
be laid down. There may be a situation
wherein the respondent-defendant may use
the suit property in such a manner that the
situation becomes irretrievable. In such a
fact situation, interim relief should be
granted (vide M. Gurudas v. Rasaranjan
[(2006) 8 SCC 367 : AIR 2006 SC 3275]
and Shridevi v. Muralidhar [(2007) 14 SCC
721] ). Grant of a temporary injunction is
governed by three basic principles, i.e.
prima facie case, balance of convenience;
and irreparable injury, which are required
to be considered in a proper perspective in
the facts and circumstances of a particular
case. But it may not be appropriate for any
court to hold a mini-trial at the stage of
grant of temporary injunction [vide S.M.
Dyechem Ltd. v. Cadbury (India) Ltd.
[(2000) 5 SCC 573 : AIR 2000 SC 2114]
and Anand Prasad Agarwalla [(2001) 5
SCC 568] , SCC p. 570, para 6].

37. Thus, the law on the issue
emerges to the effect that interim injunction
should be granted by the Court after
considering all the pros and cons of the
case in a given set of facts involved therein
on the risk and responsibility of the party
or, in case he loses the case, he cannot take
any advantage of the same. The order can
be passed on settled principles taking into
account the three basic grounds i.e. prima
facie case, balance of convenience and
irreparable loss."

15. Be that as it may, here the
appellant is claiming the declaration of
only 1?4th share in the property in dispute
on the ground that the property belongs to a
joint Hindu family and the property was
purchased during lifetime of father of the
appellant in the name of respondent no.1,
who was homemaker. This Court under
Section 114 of Indian Evidence Act may
2 All. Anil Kumar Chaturvedi Vs. Union of India
63
presume the existence of fact that the
property purchased by Hindu husband
in the name of his spouse, who is
homemaker
and
does
not
have
independent source of income, will be the
property of family, because in common
course of natural event Hindu husband
purchases a property in the name of his
wife, who is homemaker and does not
have any source of income for the
benefit of family. Therefore, in such
case prima facie the property is joint
Hindu family property and protection
of property from transferring to a
third party is necessary, consequently
this Court finds that the Court below,
while passing the impugned order
dated 25.04.2023 has not applied his
mind despite being a prima facie case,
and
in
such
case
protection
is
necessary against further transferring
the property or changing the nature of
same, if same is not protected, there
are chances the property may be
transferred or nature of property may
be changed in that case even if the
appellant's suit is decreed, then he will
suffer irreparable loss and injury.

16. Therefore, the order dated
25.07.2023 passed by Civil Judge
(S.D.), Hardoi in Civil Suit No.23
of 2023 (Saurabh Gupta vs Smt.
Archna Gupta and others) is hereby
set
aside.
Injunction
application
filed by the appellant bearing Paper
No.13(g)
is
allowed,
and
respondents
are
restrained
from
transferring the property in dispute
during the pendency of the suit. As
the dispute is between the real
brothers
and
the
suit
is
still
pending,
therefore,
it
would
appropriate the Court below will
decide the same expeditiously in
accordance with law without giving
any
unnecessary
adjournment
to
either of the parties.

17. With the observation above, the
appeal is allowed.
----------
(2024) 2 ILRA 63
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 635 of 2018

Anil Kumar Chaturvedi ...Appellant
Versus
Union of India ...Respondent

Counsel for the Appellant:
Manish Kumar Srivastava, Chandra Prakash
Singh

Counsel for the Respondent:
Ambrish Rai, Jai Prakash Tripathi, Sm Singh
Royekwar

Railway
claim
tribunal-JurisdictionImpugned order-petition has been returned to
the appellant as the Railway Claims Tribunal,
Lucknow Bench, has no jurisdiction - tribunal at
Gorakhpur has jurisdiction- claim petition was
filed in the year, 2011 - returned after 7 years-
the normal residence of the appellant is not at
Lucknow - in place of returning the claim
petition - liberty should have been granted to
the applicant to move an application before the
Chairman -for transfer of the case -or the
tribunal itself could have directed to put
up the matter before the Chairman to
consider
for
transfer-
Rule
8-
the
application for compensation can be filed
before
the
Bench
having
territorial
jurisdiction over the place from which the
passenger obtains or purchases his pass
or tickets -or where the incident or
untoward incident had occurred or where
the place of destination station lies or