Punjab-Haryana High Court
Satish Kumar vs Sat Parkash on 18 September, 2009
Author: A.N. Jindal
Bench: A.N. Jindal
In the High Court of Punjab and Haryana at Chandigarh
CM No. 22051-CII of 2009 and
Civil Revision No. 3377 of 2009 (O&M)
Date of decision: September 18, 2009
Satish Kumar
.. Petitioner
Vs.
Sat Parkash
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. R.P. Singh Ahluwalia, Advocate for the petitioner.
A.N. Jindal, J
This revision petition is directed against the order dated
26.5.2009 passed by the learned District Judge, Ambala, accepting the
appeal against the order dated 16.3.2009 passed by the Civil Judge (Sr.
Division), Ambala, and dismissing the application filed by the plaintiff-
petitioner (herein referred as 'the plaintiff') restraining the defendants-
respondents (herein referred as 'the defendants') from alienating,
transferring or otherwise dealing with the property in any manner.
The prime question to be determined in the case is "whether an
injunction could be granted against karta of joint family property restraining
him from alienating the same without legal necessity?"
The plaintiff being the son claiming himself to be the
coparcener has instituted a suit restraining the defendant (father) from
alienating, mortgaging or disposing of the suit property, on the allegations
that the same was ancestral coparcenary and joint Hindu family property;
the plaintiff being the coparcener had birth right in it, as such, the defendant
could not alienate the same without legal necessity. During the pendency of
the suit, the plaintiff sought temporary injunction against alienation.
The defendant-father contested the suit as well as the
application stating that he was the sole owner of the property and even
being the karta, he could not be restrained from alienating the suit property
without legal necessity.
Civil Revision No. 3377 of 2009 (O&M) -2-
***
The trial court granted injunction in favour of the plaintiff, whereas, the lower appellate court while accepting the appeal dismissed the application.
Arguments heard. Record perused.
The relationship between the parties is not in dispute. As regards the nature of the property, it is still to be decided at the time of final adjudication if the same is ancestral coparcenary and joint Hindu family property. Both the parties have placed reliance on the judgment delivered in case Sunil Kumar and another vs. Ram Parkash and others, AIR 1988 Supreme Court, 576, in order to press their rival contentions, wherein their Lordships' are of the concurrent view that the karta of the joint Hindu family has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts. The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu undivided family even if there is no genuine legal necessity for such transfer. If such a suit for injunction is held maintainable the effect would be that whenever the father as karta of the Joint Hindu coparcenary property will propose to sell such property owing to a bonafide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided. Their Lordships' were further of the opinion that the injunction may be granted in case of waste or ouster against the manager of the joint Hindu family at the instance of the coparcener but nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity cannot be granted. The intent and purport of the judgment was to avoid interference of the coparceners in the bonafide acts of the karta in dealing, transferring, mortgaging or otherwise disposing of the property for legal necessity, benefit and welfare of the estate. However, acts of waste or ouster by the karta on account of transfer of such property to satisfy the vices, illegal debts has been made an exception. Thus, in order to seek injunction the plaintiff coparcener was to make out a case that the property Civil Revision No. 3377 of 2009 (O&M) -3- *** was being thrown away by the defendant-karta. In any case, their Lordships' reached the conclusion that such suit was not maintainable but the alienation if any made without any legal necessity could be challenged by way of suit after its completion.
This judgment was followed later on in case Narsh and another vs. Babu Lal and others, 2006 (4) RCR (Civil) 459.
In view of the matter, this court has no hesitation to hold that observations made by the Lower Appellate Court do not suggest any interference.
Dismissed.
September 18, 2009 (A.N. Jindal) deepak Judge