Gauhati HC Lifts Injunction Blocking Further Transfer Of Land Father Gifted To One Son, As Other Son Had No Present Right Under Dayabhaga Law

The respondent, the son of appellant No. 1, filed a title suit challenging a registered gift deed by which appellant No. 1 transferred land inherited from his father to appellant No. 2.

The respondent also sought to restrain the appellants from alienating the land and disturbing his use of a dental clinic situated on it.

The Trial Court granted temporary injunctions against alienation and interference with the respondent’s peaceful enjoyment of the clinic.

On appeal under Order 43, Rule 1(r) CPC, the appellants argued that, under the Dayabhaga school, the respondent had no present right in the property during his father’s lifetime.

The respondent claimed that the land had been orally gifted to him and that he had possessed the clinic since 2014.

Under Order 39, Rules 1 and 2 CPC, temporary injunction requires a prima facie case, balance of convenience in the applicant’s favour, and a likelihood of irreparable loss; the appeal lay under Order 43, Rule 1(r) CPC.

Applying the Dayabhaga school of Hindu law, the Court stated that a son acquires no interest in his father’s property by birth; his right to succeed arises only on the father’s death, and until then he has merely a chance of succession.

The Court also observed that, absent infringement of a subsisting right, an injunction cannot be granted merely on request.

The respondent’s own pleading showed that appellant No. 1 had inherited the land from his father, and the Court therefore treated appellant No. 1 as its absolute owner for the purpose of the injunction application.

Because the parties were governed by Dayabhaga law, the respondent had no present proprietary interest during his father’s lifetime.

The Court found no prima facie basis to disturb the registered gift to appellant No. 2 and concluded that the respondent had not shown infringement of a subsisting right.

Accordingly, the balance of convenience favoured the property’s owners, and no irreparable loss to the respondent was established.

It allowed the appeal and set aside the Trial Court’s order dated 23 September 2024; the parties were left to bear their own costs.