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TMI Blog1934 (3) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... r sister, defendant 2, took care of him and defendant 1 who married her came to live as ghar jamai, and during his infancy they exercised their influence on him. 2. During his minority, his case is that they and defendant 3 managed the estate and embezzled large sums of money and when he was 20 years old, they induced him to execute three deeds of release to the extent of one lac of rupees on the representation that his father desired that the gifts should be made, but that there was nothing in his will to that effect. The learned Subordinate Judge criticised the affidavit filed on behalf of the plaintiff ; but having regard to the provisions of Order 38, Rule 5(1) and Order 39, Rule 1 which provide that the facts might be proved by affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations by the plaintiff (1) for attachment of property before judgment Under Order 38, Rule 5, Civil P.C. and (2) for a temporary injunction Under Order 39, Rule 1, Civil P.C. The plaintiff's father died in January 1929, leaving considerable property both moveable and immoveable and a will under which plaintiff became sole owner of the estate. He attained his majority in August 1929 and took out letters of administration in November. In 1933, when he was 22 years of age, he brought the present suit against his sister and her husband, and the Manager of the estate. The plaint is a long, rambling and scandalous pleading, full of unnecessary and irrelevant matter, and deficient in particulars. It offends against all the rules of pleading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for an injunction, related to the properties in Schedule 'Chha' which plaintiff sought to restrain defendants from alienating. The pleadings and affidavits disclose the following facts. The properties in Schedule 'Chha' are in the possession of the defendants. They have built houses thereon, and have been living there for some time and have let out part to tenants, from whom they collect the rents. Their names are registered as owners and they pay the municipal taxes. The title deeds to properties 1-4 were left, with other properties, in plaintiff's bouse, and have been misappropriated by him. The title deeds to properties 5 and 6 are in the possession of the manager to whom they belong. He borrowed money in 1933 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se reasons clearly are sound and unanswereble, and such proof is essential before any order can be made under the provisions of Order 39, Rule 1. 2. The plaintiff, in respect of the Schedule 'Chha' properties, asks in his plaint only for a declaration of title, without any consequential relief, and without asking for an injunction. It is clear from the pleadings and affidavits that he is out of possession, yet he does not ask for it. His claim is barred Under Section 42, Specific Relief Act. 3. The title-deeds of the properties are in the possession of the plaintiff. (This statement is not quite accurate. The plaintiff has possession of the deeds of properties 1-4.) In view of this and the pendency of the suit, the plaintiff c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any decree which might be passed against them, or with such intent were about to dispose of their property. Mere vague allegations are not sufficient: Senaji Kapur Chand v. Pannaji Devi Chand, 1922 Bom 276 and see Nowroji Padamji v. Deccan Bank Ltd., 1921 Bom 69. And the mare fact that a defendant has in the past mortgaged or disposed of his property is not a sufficient ground for levying attachment. There must be a present intention: Manmathe v. Nagendra, 1926 Cal 855. Further the Judge held, for the reasons given in his judgment, that the plaintiff had failed to make out a prima facie case. This is essential before either injunction or attachment can be granted. Moreover the Court must be satisfied that interference is necessary to preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept in cases of serious misdirection in law or fact, when special directions might be given for expedition. 8. Moreover it must be remembered that both these orders were discretionary, and an appellate Court ought not to interfere with the exercise of a Judge's discretion unless satisfied that it was not judicially exercised, that is to say, that the Judge acted on wrong principles. The mere fact that the Judges of the appellate Court might have taken a different view is not a sufficient ground for interference: Daily Gazette Press Ltd. v. Karachi Municipality, 1930 Sind 287, Watson v. Rodwell, (1876) 3 Ch D 380. Sheffield v. Sheffield, (1875) 10 Ch 206, Maass v. Gasslight and Coke and Co., (1911) 2 KB 543 and Donald Campbell and Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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