Madhusudan Rao, J.
1. This is an appeal against an order of injunction pendente lite passed by the learned Additional Chief Judge-cum-Special Judge for SPE cases. City Civil Court, Hyderabad in I. A. 41/73 in O. S. 8/72. The appellant is the first respondent in the Interlocutory Application and the first defendant in the suit. The respondents 1, 2 and 3 are the petitioners before the lower Court and they are the defendants 5, 6 and 9 in the suit. The other respondents 4 to 6 are the three plaintiffs who instituted the Suit O. S. 8/72. For the purpose of convenience the parties will be referred to in this judgment by their positions in the suit.
2. The facts which led up to this appeal are as follows:
The late Nizam of Hyderabad nominated his grandson, the 1st defendant, before his death as successor-Ruler of the State of Hyderabad and sought the necessary recognition of the Government of India. A certificate of Recognition in favour of the 1st defendant as the Ruler of the State of Hyderabad was issued by the Government of India with effect from the 24th February, 1967 -- the date on which the Nizam died. Soon after the death of the Nizam, the first defendant came into possession of all the moveable and immovable properties of the Nizam.
3. Shortly after the death of the late Nizam, his legitimate daughter Ahmedunnisa Begum, the 4th defendant filed Writ Petition No. 863 of 1967 in this Court challenging the Certificate of Recognition issued in favour of the 1st defendant. The Writ Petition was allowed under an order dated 29-1-1968. The 1st defendant preferred an appeal against the order before the Supreme Court of India. While the matter was pending in the Supreme Court the parties entered into a compromise and the 1st defendant's appeal was allowed by the Supreme Court in view of the compromise. In the year 1968 the 1st defendant's father Mir Himayat Ali Khan Azam Jah Bahadur filed O. S. 105/68 in the court of the Chief Judge, City Civil Court, Hyderabad for administration of the estate of the late Nizam and for separate possession of 7/20 share. While the suit was pending he filed W. P. 966/69 in the High Court challenging the Certificate of Recognition issued in favour of the 1st defendant. Later he filed I. A. 1258/69 withdrawing O. S. 105/68. By its order dated 22-8- 1969 the Court dismissed the suit as withdrawn. He had also filed a Memo before the High Court withdrawing W. P. 966/69 and the High Court dismissed the writ petition by an order dated 18-8-1969 in view of the withdrawal memo.
4. After the demise of the late Nizam, the 1st defendant filed Estate Duty Returns disclosing all the assets of the late Nizam. On the basis of the Returns, a provisional demand of Rs. 1.36 crores was made and the 1st defendant paid the Duty after selling the personal jewellery of the late Nizam valued at about Rs. 20 lakhs and other assets such as gold bonds, shares, securities etc. He has further disposed of many items of the estate in the years 1968, 1969, 1970 and 1971.
5. While so, Nawab Imdad Jah Bahadur, Nawab Nawazish Jah Bahadur and Nawab Fazal Jah Bahadur (the three plaintiffs) instituted O. S. 8/72 on 31-1-1972 against the 1st defendant and 34 others for partition of the Schedules B to D properties, for allotment of their shares (which would come to 42/376) and for mesne profits. It is alleged that the properties are the matruka of the late Nizam of Hyderabad and that the plaintiffs and defendants are entitled to specific shares in the properties as per Mohammadan Law. It is further alleged that the 1st plaintiff is the son of the late Nizam through his wife Jani Begum and that the second and third plaintiffs are the sons of the late Nizam through his wife Laila Begum. It is also alleged that the properties of the late Nizam devolved on his heirs in accordance with the Muslim Law and that the Nizam was survived by two widows, 15 sons including the three plaintiffs and 17 daughters all of whom have specified shares.
6. The 1st defendant filed written statement raising various contentions and pleading that the suit is merely speculative and calculated to harras him. It is also his contention that the properties in question are not the matruka of the late Nizam and that he took possession of all the properties of the late Nizam not by inheritance but in his own right, in accordance with the law and custom governing succession in the Asif Jahi dynasty. It is further pleaded that most of the immovable properties detailed in the B schedule were not the properties of the late Nizam but are his own properties, he having acquired them through gift deeds executed by the late Nizam in his lifetime.
7. While instituting the suit, the three plaintiffs have filed an Interlocutory-Application (I. A. 42/72) under Order 39, Rule 1 and Section 151, Civil Procedure Code impleading the defendants 1, 2 and 4 as respondents. It was prayed in the application that the defendants 1, 2 and 4 may be restrained from alienating, removing, disposing or dealing in any manner with the properties mentioned in Schedules B and C annexed to the plaint. By an order dated 1-2-1972 the Court granted an ex parte interim injunction and directed notice to the defendants 1, 2 and 4. The 1st defendant opposed the application contending that the plaintiffs had no manner of right in any of the suit properties, that they are not the legitimate sons of the late Nizam and that the mothers of the plaintiffs were not the legally wedded wives of the late Nizam. It has been further contended that when two of the legitimate children of the late Nizam instituted legal proceedings in the years 1967, 1968 and 1969 for a share in the properties left by the late Nizam, the plaintiffs have not chosen to prefer any claims till the year 1972 i. e. almost five years after the demise of the late Nizam. Another contention raised in the counter is that some of the palaces mentioned in the plaint B schedule were gifted by the late Nizam to the 1st defendant in the year 1967 itself and that the said properties did not form part of the estate of the late Nizam.
8. The second defendant filed an affidavit generally supporting the case of the 1st defendant and specifically pleading that he and his mother iointly purchased Chamllya Palace on 4-2-1960 under a registered sale deed and that the other palace Mahboob Mansion was gifted to him in the year 1957 by the late Nizam. The three plaintiffs filed seven documents (Exs. A-1 to A-7) and the defendants 1 and 2 filed 12 documents (Exs. B-1 to B-12).
9. On an examination of the documents filed and on a consideration of the contentions of the parties, the learned Additional Chief Judge held that the plaintiffs have no prima facie case in their favour and accordingly dismissed the application for injunction, vacating the interim injunction granted on 1-2-1972 by his order dated 24-2-1972. The plaintiffs filed an appeal (A. A. O. 227/721 in this Court against the order in I. A. 42/72.
10. When the appeal was being heard by the High Court, the plaintiffs attempted to show by filing some additional evidence that the gift deeds executed by the late Nizam in favour of the 1st defendant were nominal and that in any event the properties gifted must be deemed to have been reconveyed to the late Nizam. This Court rejected the application for admission of the additional evidence observing that no plea was taken in the trial Court as regards the nomi-nality of the gift deeds or whether they were the subject-matter of reconveyance in favour of the Nizam. By its order dated 18-8-1972 this Court dismissed the appeal preferred by the three plaintiffs holding that the plaintiffs have not made out a prima facie case or that any irreparable injury would result to the plaintiffs.
11. On 12-3-1973 i.e., about 7 months after the above-referred order of the High Court, the defendants 5, 6 and 9 in the suit have filed I. A. 71/73 under Order 39, Rules 1 and 2 and Section 151, Civil Procedure Code praying for an injunction similar to the one prayed for in I. A. 42/72. The petitioning defendants 5 and 6 are the brothers of the plaintiffs 2 and 3 while the petitioning 9th defendant is their sister. Reiterating the same allegations as were made by their brothers the second and third plaintiffs in I. A. 42/72 and making some more additional allegations to the effect that the 1st defendant has no valid title in the palaces gifted to him by the late Nizam in so far as he reconveyed the properties to the late Nizam, the petitioners prayed for an injunction in respect of the B Schedule properties. They impleaded the 1st defendant as the 1st respondent and the three plaintiffs as the respondents 2 to 4.
12. The 1st defendant again resisted the application repeating the same contentions as were raised in the previous I. A. and further stating that he did not at any time reconvey the properties gifted to him by the late Nizam. In the inquiry, no oral evidence was adduced by any of the parties. Defendants 5, 8 and 9 filed Exs. A-1 to A-23 while the 1st defendant filed Exs. B-1 to B-20. The plaintiffs have filed Exs. B-21 to B-40.
13. On a consideration of the documentary evidence, the learned Additional Chief Judge allowed the petition and issued an injunction restraining the 1st defendant from alienating or otherwise dealing with the properties mentioned in the B Schedule annexed to the plaint till the disposal of the suit. Aggrieved with the order, the 1st defendant has come up in appeal.
14. The learned Advocate-General appearing for the 1st defendant-appellant contends that the lower court did not exercise its discretion, properly in granting the injunction. He says that the principles granting a temporary injunction have been misapplied by the trial Court, that there is absolutely no prima facie case in favour of the defendants 5, 6 and 9, that these defendants are guilty of laches and that their application for injunction is an abuse of the process of the court in 50 far as a similar application filed by the plaintiffs, was previously rejected by the trial court and the High Court. It is further contended that the balance of convenience is against them and that there is no question of any such irreparable loss to them as to entitle an injunction in their favour.
15. It is well-settled that the grant or refusal of a temporary injunction is covered by three well established principles viz., (1) whether the petitioners have made out a prima facie case (2) whether the balance of convenience is in their favour i.e., whether it would cause greater inconvenience to them if the injunction is not granted than the inconvenience which the opposite party or persons claiming through the opposite party would be put to if the temporary injunction is granted and (3) whether the petitioners would suffer irreparable injury. With the first condition as sine qua non, at least two conditions should be satisfied by the petitioners conjunctively and a mere proof of one of the three conditions does not entitle the petitioners to obtain a temporary injunction in their favour.
16. Let us now examine the existence or otherwise of a prima facie case in favour of the defendants 5, 6 and 9. The sheet-anchor of their case is that they are the legitimate sons and daughter of the late Nizam through their mother Laila Begum. The 1st defendant contends that Laila Begum was only a kept mistress of the late Nizam and not his legally wedded wife. The petitioning defendants did not file any Siahnama with regard to the alleged marriage of Laila Begum with the late Nizam. Sri M. L. Ganu the learned Counsel for the defendants 5, 6 and 9 draws our attention to the recitals contained in Exs. B-33, B-34 and B-35 and strenuously contends that Laila Begum should be deemed to be the legally wedded wife of the late Nizam in the light oi these recitals. These three documents are trust deeds executed by the late Nizam. In Ex. B-33 Jani Begum the mother of the 1st plaintiff is described as a wife of the late Nizam. In Exs. B-34 and B-35 Laila Begum the mother of the, petitioning defendants 5, 6 and 9 is described as a wife of the late Nizam. It is the case of the appellant that the recitals in Exs. B-33, B-34 and B-35 cannot be of any serious consequence in the light of the late Nizam's own affidavit Ex. B. 19 which is dated 13-2-1964 and far subsequent to Exs. B. 33, B. 34 and B. 35. In this affidavit the late Nizam has affirmed that he married only Dulhan Pasha Begum (the mother of the 1st defendant's father) in the year 1906 conforming to the Islamic Law, that after the marriage with the said Dulhan Pasha Begum, he admitted from time to time various ladies into his palace and according to the practice prevailing in the family of the Nizam of Hyderabad, he conferred positions on such ladies depending on their social status prior to their admission into the palace. He has further affirmed that such of the ladies as had respectable family background, were conferred the status of 'ladies of position' and the other mistresses in the Zenana were commonly referred to as 'Khawases.' At the end of para 1 of the affidavit he gave a list of six ladies who were given the status of 'ladies of position.' The names of Laila Begum and Jani Begum are found in this list of six ladies. In para 2 of the affidavit the late Nizam further declared that the 'ladies of position' and 'Khawases' were merely admitted into his palace without going through any of the formalities required for a valid marriage. He has further declared that only late Dulhan Pasha Begum was his legally wedded wife and that such status of a legally wedded wife was not enjoyed by any other lady in the palace. He concluded the affidavit by saying that reference to the 'ladies of position' as his wives in some of the documents was only by way of courtesy and special favour towards them and not because such 'ladies of position' were really his legally wedded wives. Relying on K. V. Subba Raju v. C. Subba Raju, : [1968]2SCR292 Sri Ganu contends that the affidavit Ex. B-19 is inadmissible in evidence in so far as the statement made by the late Nizam in Ex. B-19 is not ante litem motam. The objection in regard to the admissibility of Ex. B-19 cannot be countenanced at this stage. As can be seen from the order of the lower Court, the documents filed by both parties were marked by the learned Additional Chief Judge as evidence in the Interlocutory Applications without any objection whatever from any of the parties. The learned Additional Chief Judge states as follows in paras 10 and 15 of his order:--
'Para 10:-- Both parties filed a number of documents for the perusal of this Court. For convenience sake, I mark Exs. A-1 to A-23 as the documents filed on behalf of the petitioners. On the side of the 1st respondent' Exs. B-l to B-20 and on behalf of the respondents 2 to 4 Exs. B-21 to B-40 are filed.'
'Para 15:-- ..... It is brought to my notice in Ex. B-19 which is said to be an affidavit filed by H. E. H. Nizam on 13-2-1964 before the Income-tax Authorities in that Laila Begum was described as lady in position. But it should be noted that the said affidavit was filed before the Tax Authorities and whether the same can be given more importance than the recitals made in the trust deeds long prior to the disputes with the Tax Authorities arose? Whatever it may be, it appears to my mind, that when late Nizam himself has chosen to describe Laila Begum and Jani Begum as his wives in the trust deeds and the petitioners and others as his sons and when the presumption in law, in favour of the legitimacy and against illegitimacy these recitals must be given their due importance. .....'
It is absolutely clear from the above-quoted observatoins of the lower Court that no objection was taken to the admis-sibility of Ex. B-I9 before the lower Court. On the other hand it was contended before the Lower Court that the affirmations of the late Nizam in Ex. B-19 are subsequent to the recitals in Exs. B-33, B-34 and B-35 and that therefore they should not be given greater importance. In so far as no objection was taken to the admissibility of the document before the lower court, we are not prepared to consider the question of its admissibility in this proceeding.
17. Even if Ex. B. 19 is eschewed from consideration, it is difficult to say on the basis of the mere recitals in the trust deeds prima facie that Jani Begum and Laila Begum are the legally wedded wives of the late Nizam particularly in view of the judgment of this Court in Nawab Mir Osman AH Khan Bahadur v. Income-tax Officer, : [1970]75ITR133(AP) . The judgment has been marked as Ex. B-11 in the case. The judgment is of a Division Bench of this Court in W. Ps. Nos. 1042 to 1045 of 1964. The Writ Petitions were filed by the late Nizam against the Income-tax Officer, Hyderabad, The Income-tax Authorities alleged that Laila Begum, Jani Begum and one Mazharunnissa Begum were the legally wedded wives of the late Nizam and relied on the recitals in the very three trust deeds Exts. B-33, B-34 and B-35. The late Nizam asserted that the three ladies were his kept mistresses and not married wives. This Court held that the three ladies were not the legally wedded wives of the late Nizarn but were merely his kept mistresses. At page 146, our learned brother Sambasiva Rao, J., speaking for the Bench observed as follows:--
'It is unthinkable that the three ladies and their children would have kept quiet and filed returns separately accepting the position that they had no legitimate connections with the petitioners, had this statement of the petitioner not been correct.'
18. The judgment of the High Court under Ex. B-11 was delivered on 7-3-1969 and it was held in this judgment that Laila Begum the mother of the plaintiffs and defendants 5, 6 and 9 and Jani Begum the mother of the 1st plaintiff were not the legally wedded wives of the late Nizam. In the absence of some other better evidence showing that Laila Begum and Jani Begum were the married wives of the late Nizam, it would be difficult to find prima facie case in the state of the evidence which is available in the I. A. that the defendants 5, 6 and 9 are the legitimate children of the late Nizam. It may be significant to note that in the trust deed Ex. B-17 dated 29-12-1950 the late Nizam referred to Laila Begum and Jani Begum only as 'ladies of position' and not as wives. Sri Ganu has drawn our attention to Ex. A-23 an order of this court on I. A. 46/59 in O. S. 14/58. This order shows that the late Nizam was appointed by the court as guardian-ad-litem of one Hazratha Maz-harunnisa Begum Saheba the 37th defendant in that suit on the ground that he was her husband. The order clearly shows that the late Nizam was appointed as a guardian of the said Mazharunnisa Begum Saheba not on his application nor with any notice to him, but only on the representation of the advocate for the plaintiff and the advocate for Mazrunnisa Begum Saheba. This circumstance cannot by itself afford a basis to come to the conclusion that Mazharunnisa Begum was the legally wedded wife of the late Nizam.
19. Further, as stated by the defendants 5. 6 and 9 themselves that some of the properties in the B-Schedule were alienated to others by the 1st defendant prior to the institution of the suit and admittedly the alienees have not been im-pleaded in the suit. So far as the main items of B-Schedule properties were concerned, they are covered by registered gift deeds executed by the late Nizam in favour of the 1st and 2nd defendants, and by a registered sale deed in favour of the second defendant and his mother. As regards the properties covered by the gift deeds Exs. B-1 to B-5 which constitute a major portion of the B-Schedule properties, the learned Additional Chief Judge opined that there is a cloud over the gifts in view of Exs. A-4 and A-5 and also in view of Exs. A-6 to A-13. Exs. B-l to B-5 are registered deeds of conveyance showing that the five palaces referred to in them were gifted by the late Nizam to the 1st defendant. Exs. B-6 and B-7 are lease deeds executed by the late Nizam and in favour of the 1st defendant on the same day i.e., 21-3-1957 when Exs. B-l to B-5 were executed. The palaces covered by Exs. B-l to B-5 as observed by this court in the judgment dated 18-7-1972 in C. M. A. 227/72 were admittedly not shown by the late Nizam in his wealth statement during his lifetime but they were shown in the wealth statement of the 1st defendant-donee. An examination of the recitals in Exs. A-4 and A-5 make it appear that the 1st defendant was more anxious for some arrangement to be made by the late Nizam for the maintenance of the palaces than to reconvey the properties to the late Nizam. Ex. B-20 the endorsement of the late Nizam lends support to this view. If the 1st defendant had really reconveyed the palaces to the late Nizam, these properties would have certainly found a place in the wealth statement of the late Nizam furnished by him during his lifetime. As pointed out by this Court in C. M. A. 227/72 the parties impugning the registered gift deeds have to go a long way to establish that they are merely nominal. The correspondence between the Municipal Commissioner and the late Nizam referred to by the lower court in para 18 of its order cannot be of any serious consequence as to throw any cloud on the right of the 1st defendant in regard to the properties gifted to him under Exs. B-1 to B-5.
20. The question of the legitimacy of the defendants 5, 6 and 9 as also of the plaintiffs and the nominality of the gift deeds in favour of the 1st defendant are debatable questions which can be decided only in a full-dressed trial of the suit. We are not satisfied that there is a prime facie case in favour of the defendants 5, 6 and 9 so as to enable them the grant of a temporary injunction.
21. Even on the question of balance of convenience it does not appeal that the scale has any tilt towards the defendants 5, 6 and 9. As observed already, the persons in whose favour some of the items of the B-Schedule were alienated prior to the institution of the suit, have not been impleaded in the suit. If the injunction is not granted and the 1st defendant alienates some of the properties during the pendency of the suit, Section 52 of the Transfer of Property Act protects the rights if any of the defendants 5, 6 and 9. Relying on Pramatha Nath Roy v. Jaganneth Kishore Lal Singh, (1912) 16 Ind Cas 359 Sri Ganu contends that it would not be a correct view to refuse an injunction, merely because the rights of the petitioners are protected by the doctrine of lis pendens. The case relied deals with a suit for the specific performance of an agreement to grant a lease of certain property and in the circumstances of that case it was rightly felt necesary to issue an injunction. The facts of the case relied have absolutely no bearing on the facts of the instant case. Sri Ganu has further invited our attention to a passage at page 209 of Tagore Law Lectures, 1897, Law Relating to Injunction by John George Woodroffe, 1964 Edition. The passage reads:--
'The power given by Order 39, Rule 1 of the Civil Procedure Code is substantially the same as that long exercised by English Courts of Equity. The object is to restrain the defendant from doing anything which may prevent the property remaining in status quo during the pendency of a suit, upon the principle that when the plaintiff seeks to recover property in specie the defendant shall not be allowed to decide the question in his own favour by dealing or making away with the property, the right to which is the question in dispute. So the Court will restrain not only waste or damage to the subject of litigation, whether movable or immovable property, but may also restrain the mere alienation of property, whether movable or immovable. For in every case the plaintiff might be put to the expense of making the vendor a party to the proceeding, and at all events his title, if he prevails in the action, may be embarrassed by such new outstanding title under the transfer. The Court, will prevent, if possible, the necessity qf proceeding on such a principle and will not, in a proper case, deprive a suit or of the more effective protection of an injunction.'
At page 210 the Author says as follows:--
'The power however, of issuing an Injunction, pendente lite ought to be most cautiously exercised. It is only in cases where property which it is essential should be kept in its existing conditions during the pendency of the suit, is in danger of being destroyed, damaged or put behind the power of the Court, that the latter ought to interfere so as to restrain persons who may turn out in the final event of the litigation to be the actual owners of the property, from proper enjoyment and possession of it.'
22. Sri Ganu states that no doubt the 1st defendant has still to pay some taxes, but that for the payment of such taxes he should not be allowed to alienate the properties except with the permission of the Court. Payment of the taxes due on the estate is a legal necessity and if the 1st defendant alienates any of the properties to meet any such legal necessity in the larger interest of the estate, it cannot be said that the defendants 5, 6 and 9 would be put to greater inconvenience if he is not prevented by an order of injunction.
23. The last question that arises for consideration is whether, if the injunction is not granted, the defendants 5, 6 and 9 are likely to suffer any irreparable loss. In the light of the findings recorded above, there is no need to answer this question in extenso, Sri Ganu apprehends that if not restrained by an injunction, the 1st defendant may sell away the properties and may, in the event of the petitioning defendants succeeding, state that he sold the properties for considerably smaller sums than actual. The apprehension does not appear to be real or bona fide. The apprehension is being urged only as a ground for the petition for injunction. The late Nizam died on 24-2-1967. As can be seen from the valuation in the plaint, by the time of his death, the properties left by him were worth Rs. 16 crores. Neither his death nor his wealth is a secret. The defendants 5, 6 and 9 who claim to be the sons of the late Nizam and who state that they are anxious to protect the properties from being wasted or damaged, did not come to the court for the properties until February. 1972, that too as defendants in a suit instituted by their brothers. A prayer for injunction made by their brothers was rejected by the High Court on 18-7-1972. For the first time these defendants 5. 6 and 9 approached the court with a prayer for injunction on 12-3-1973. Injunction is an equitable relief and delay defeats equities. Having acquiesced in the possession and enjoyment and even alienations of the B schedule properties by the 1st defendant for more than five years, it does not now lie in the mouths of the defendants 5, 6 and 9 that they would suffer irreparable loss if the 1st defendant is just now not restrained by an order of injunction to deal with the properties. There is absolutely no satisfactory explanation of the delay. There is also no allegation of any particular damage or waste to any of the properties during the period intervening the dismissal of the anterior application for injunction and the institution of the instant application.
24. In the light of the above discussion we are of the view that the lower Court did not exercise its discretion properly in granting the injunction against the 1st defendant. The order granting the injunction is therefore set aside and this appeal is allowed with costs.