Punjab-Haryana High Court
Lal Dass vs Raghbir Dass And Anr. on 30 July, 2003
Equivalent citations: AIR2004P&H41, (2004)136PLR221, AIR 2004 PUNJAB AND HARYANA 41, (2004) 15 ALLINDCAS 786 (P&H), 2004 (1) HRR 332, 2004 (15) ALLINDCAS 786, 2004 HRR 1 332, (2003) 3 CIVILCOURTC 578, (2004) 1 PUN LR 221, (2003) 4 RECCIVR 415
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The instant Regular Second Appeal has been filed by the appellant-defendant against the judgment and decree dated 22.7,1982 passed by District Judge, Bhatinda vide which reversing the judgment and decree of the trial court, suit of respondent No. 1-plaintiff was decreed and it was held that the parties to the suit are coparceners in the suit property which is their Joint Hindu Family property; and permanent injunction was granted to respondent No. 1 restraining the appellant from the alienating the suit property without any legal necessity or other needs as contemplated under the Hindu Law.
2. The brief facts of the case are that plaintiff and defendant No. 2 and 3 are the sons of defendants No. 1. The plaintiff filed the instant suit for declaration and permanent injunction against his father impleading his other two brothers as defendants No. 2 and 3 to the effect that the land in dispute measuring 486 Kanals 5 Marias is their Joint Hindu Family property. It was alleged that the parties to the suit are coparceners having equal rights in the coparcenary property under the Hindu Law. It was further alleged that defendant No. 1-appellant is merely Karta of the family and has no right to alienate the coparcenary property in any manner except for the legal necessity as permissible under the Hindu Law. Since the defendant-appellant was denying the rights of the plaintiff-respondent No. 1 in the said coparcenary property and was ought to alienate the disputed land without any legal necessity, therefore, the instant suit was filed.
3. The aforesaid suit was contested only by the defendant-appellant as the other two defendants did not appear in pursuant to the notice issued to them and they were ordered to be proceeded against ex-parte. The defendant-appellant contested the suit by alleging that the plaintiff filed the instant suit in collusion with defendants No. 2 and 3 as at that time the plaintiff was having no interest in the suit property and no locus standi to file the instant suit. It was further alleged that the plaintiff was not in possession of the suit land. It was further alleged that on earlier occasion also, the plaintiff alongwith his brother Manohar Dass (defendant No. 2) filed a suit against defendant No. 1-appellant for declaration to the effect that they were in possession of their respective share in the suit land by claiming that the suit property was partitioned among the coparceners on 23.12.1977. The said suit was dismissed and it was held that the suit property was neither partitioned nor the plaintiff and his brother Manohar Dass were found in possession of the same. It was, therefore, pleaded that the instant suit filed by the plaintiff is not maintainable and is barred by the principle of res judicata.
4. On the pleadings of the parties, the learned trial court framed the following is-sues:-
1. Whether the suit is not maintainable in the present form? O.P.D.
2. Whether the suit is barred by the principles of res judicata? O.P.D.
3. Whether the plaintiff has locus-standi to file the suit? O.P.P.
4. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? O.P.P.
5. Whether the plaintiff is entitled to the injunction as prayed for? O.P.P.
6. Relief.
5. After considering the evidence led by both the parties, the learned trial court dismissed the suit while holding that the suit filed by the plaintiff is not maintainable as once in the earlier suit the plaintiff took the stand that the property was partitioned, now he cannot be allowed to say that the property in question is joint between coparceners. It was also held that since the plaintiff did not claim the relief of possession, therefore, the mere suit for declaration was not maintainable. It was further held that the instant suit filed by the plaintiff is barred by principles of res judicata.
6. Feeling aggrieved against the said judgment and decree, the plaintiff filed appeal before the District Judge, Bhatinda, which was allowed and the judgment and decree passed by the learned trial court was set aside. It was held by the learned first appellate court that the disputed property is the ancestral property in the hands of the appellants qua his sons, and all of his three sons acquired right in the same by virtue of their birth in the family. This property constitutes coparcenary property of the Joint Hindu Family. The learned first appellate court further held that the dismissal of the earlier suit filed by two sons of the appellant, including the plaintiff and defendants No. 2 regarding private partition of the coparcenery property was rejected and the property in question was held to be the coparcenery property. After giving the aforesaid declaration, the learned first appellate court granted permanent injunction in favour of the plaintiff restraining the appellant from alienating the coparcenary property in respect of the shares of the plaintiff and defendants No. 2 and 3 without any legal necessity or other needs as contemplated under the Hindu Law. The appellant has challenged the aforesaid judgment and decree in the instant appeal.
7. Shri V.K. Kataria, learned counsel for the appellant, submitted that in the instant appeal a substantial question of law is involved to the effect that even if it is assumed that the property in question is the Joint Hindu Family property and the three sons and father are the coparceners having right in the suit properly, no injunction against the Karta of the Joint Hindu Family can be issued restraining him from alienating the coparcenary property. He farther submitted that a suit for injunction by a son against his father restraining him from alienating the undivided coparcenary property belonging to Joint Hindu Family is not maintainable. In this regard, learned counsel for the appellant relied upon a Division Bench decision of this Court in Jujhar Singh v. Giant Tarlok Singh (1987-1)91 P.L.R. 399, which has been approved by the Hon'ble Supreme Court in Sunil Kumar v. Ram Parkash, (1988-2)94 P.L.R. 159 (S.C.). On the basis of the aforesaid judgment, learned counsel for the appellant submitted that even if it was declared that the plaintiff is the coparcener in the aforesaid Joint Hindu Family property, even then his suit for permanent injunction against the Karta of the family (appellant herein) is not maintainable and the same is liable to be dismissed.
8. On the other hand, Sh. K.K. Garg, learned counsel for the respondents submitted that by the impugned judgment and decree, the appellant has been restrained from alienating only the share of the plaintiff and defendants No. 2 and 3 in the Joint Hindu Family property, therefore, the said injunction has caused no prejudice to the rights of the appellants, who has been left open to alienate his share in the Joint Hindu Family property.
9. After hearing the respective arguments of learned counsel for both the parties and perusing the records of the case, I am of the opinion that part of the impugned judgment and decree, vide which suit for permanent injunction restraining the appellant from alienating the coparcenary property has been decreed, has to be set aside. It is well settled that no injunction at the hands of a coparcener can be issued against the karta of the Joint Hindu Family restraining him from alienating the coparcener property. Even though a coparcener has an interest in the coparcener property by birth, but he is not entitled to separate possession of the same unless a partition takes place. The Karta of a Joint Hindu Family has a right to manage the Joint Hindu Family property. That right to manage the property also includes the right to sell or mortgage ancestral property if the legal necessity so arises. A coparcener has no right to get an injunction against the Karta. However, he has always a remedy to challenge the alienation of the coparcenary property and set aside the same on the ground that the same was not for any legal necessity or was not an act of good management. The Division Bench of this Court in Jujhar Singh v. Giani Tarlok Singh (supra) has held that a suit filed by a coparcener against the Karta of the Joint Hindu Family restraining him from alienating the suit property is not maintainable, The aforesaid decision was approved by the Hon'ble Supreme Court in Sunil Kumar and Anr. v. Ram Parkash and Ors., (supra), wherein it was held as under:-
"It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcener estate. His rights are not independent of the control of the Karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that a father karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the later right and indeed, he is not entitled for it. Therefore, he cannot move the Court to grant relief by injunction restraining the karta from alienating the coparcenary property.. The provisions of Section 38 (Specific Relief Act) have to be read alongwith Section 41. Section 41 provides than an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the karta. He cannot, therefore, move the Court for an injunction restraining the karta from alienating the coparcenary property."
10. In view of the aforesaid discussion, I do not find any force in the contention of learned counsel for the plaintiff that since the appellant has been restrained from alienating the coparcenary property only to the extent of share of the plaintiff and defendants No. 2 and 3, therefore, there is no illegality in the impugned judgment. Since the property in dispute is the Joint Hindu Family property which has yet not been partitioned, therefore, the question of alienating the share of one coparcener or the other does not arise. All the coparceners have joint interest in the entire property which is to be managed by the Karta and the right of managing also includes the right to sell or mortgage ancestral property if the legal necessity so arises. Consequently, the instant appeal is partly allowed and the impugned judgment to the extent of restraining the appellant from alienating the suit property is hereby set aside.
No order as to costs.