Punjab-Haryana High Court
Laxmi vs Shakuntla Devi And Others on 20 November, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
C.R. No. 7693 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.R. No. 7693 of 2014
Date of decision: 20.11.2014
Smt. Laxmi ...Petitioner(s)
Versus
Mrs. Shakuntla Devi and others ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
Present: Mr. Tanmoy Gupta, Advocate,
for the petitioner.
G.S.SANDHAWALIA, J. (Oral)
Challenge in the present revision petition by defendant no. 4 is to the order dated 07.07.2014 whereby, the application for dismissal of suit on the ground that it had been rendered infructuous on the ground that the property has been alienated by defendant no. 1 by executing a relinquishment deed in favour of defendants no. 2 and 3. The plea of the plaintiff-defendant no. 1 that there was no legal necessity to execute the relinquishment deed by the Karta has been kept in mind and, therefore, the right to file the suit has been upheld.
Counsel for the petitioner has vehemently submitted that during the lifetime of the Karta, the suit was not maintainable and has placed strong reliance upon the judgment of Division Bench of the Bombay High Court in Ms. Vaishali Satish Ganorkar and another vs. Mr. Satish Keshaorao Ganorkar and others, 2012 AIR (Bombay) 101.
After hearing counsel for the petitioner, this Court is of the opinion that the present revision petition does not warrant acceptance. A perusal of the plaint would go on to show that the plaintiff-respondent no. 1 SHIVANI GUPTA 2014.11.29 12:13 I attest to the accuracy and integrity of this document Chandigarh C.R. No. 7693 of 2014 2 filed a suit that he is a coparcener in the disputed property being the daughter of defendant no. 1 whereas defendants no. 2 and 3 were her brothers and respondents no. 6 and 7 were the sisters. It was pleaded that the property measuring 51 kanals 21 marlas situated in village Baghola, Tehsil and District Palwal was ancestral and the plaintiff had a right in the said ancestral property. The relinquishment deed dated 10.09.2012 had been executed in favour of her brothers and the father had sold out another portion without any legal necessity to grab the share of the plaintiff vide sale deed dated 31.12.2010. Defendants no. 2 and 3 had further alienated portions vide sale deed dated 03.09.2013 and accordingly, the said deeds were challenged on the ground that they were without any legal necessity.
Application was filed by the defendant, who is the purchaser, on the ground that until the coparcener dies and successions opens, there was no devolution of interest and unless defendant no. 1 was alive, the suit was not maintainable and prayer was made accordingly that the suit be dismissed. The application was contested by submitting that defendant no.
4 had sold share to defendant no. 5 and, therefore, once relinquishment of rights had taken place, the suit had been filed.
A perusal of the facts would thus go on to show that the alienations have been challenged on the ground that there was no legal necessity. Once the alienations have been done by the coparceners, the suit was very much competent and it does not lie in the mouth of the present petitioner to submit that the suit is not maintainable. Reference can be made to the judgment of the Apex Court in Sunil Kumar and another vs. Ram Parkash and others, (1988) 2 SCC 77 wherein, the right of the coparcener to file a suit for permanent injunction restraining the Karta from alienating SHIVANI GUPTA 2014.11.29 12:13 I attest to the accuracy and integrity of this document Chandigarh C.R. No. 7693 of 2014 3 the joint family property was held not to be maintainable. However, the right to challenge the alienation once made on the ground that it was not for legal necessity was recognized. The relevant principles read thus:-
"23. The legal position of karta or manager has been succinctly summarised in the Mayne's Hindu Law (12th Ed. para 318) thus:
318. Manager's Legal position-"The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that of principal and agent, or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees."
24. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. Mt. Babooee, [ 1856] 6 M.I.A. 393. There it was observed at p. 423: (
1) "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been SHIVANI GUPTA 2014.11.29 12:13 I attest to the accuracy and integrity of this document Chandigarh C.R. No. 7693 of 2014 4 repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.
Remedies against alienations:
25. Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Courts of law. The other members of the family have a right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bonafide enquiry as to the existence of such-necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed. para 396].
26. In the light of these principles, I may now examine the correctness of the contentions urged in this appeal. The submissions of Mr H.N. Salve, as I understand, proceeded firstly on the premise that a coparcener has as much interest as that of karta in the coparcenary property. Second, the right of copercener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for legal necessity or for the benefit of the estate. When these two SHIVANI GUPTA 2014.11.29 12:13 I attest to the accuracy and integrity of this document Chandigarh C.R. No. 7693 of 2014 5 rights are preserved to a coparcener, why should he not prevent the Karta from dissipating the ancestral property by moving the Court? Why should he vainly wait till the purchaser gets title to the property? This appears to be the line of reasoning adopted by the learned counsel.
27. I do not think that these submissions are sound. 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 coparcenary 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 made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right 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 SHIVANI GUPTA 2014.11.29 12:13 I attest to the accuracy and integrity of this document Chandigarh C.R. No. 7693 of 2014 6 coparcener cannot claim the latter 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 specific pleas of lack of legal necessity was taken which is a matter of mixed question of law and fact which exercise is to be conducted by the trial Court after recording of evidence. It is settled principle of law that only the pleadings in the plaint have to be taken into consideration at the stage of rejection of the plaint and not the defence. The plaint is not to be rejected and only in exceptional circumstances where the proceedings are totally vexatious, frivolous and barred by limitation, this resort is to be done. Reliance upon the judgment in Ms. Vaishali Satish's case (supra) is not applicable to the facts of the present case. In the said case, the daughters had set up challenge to the mortgage deed with an intent to deny the claim of the bank upon the alienation made of the property by creating of equitable mortgage. It was in those facts and circumstances, the observations came that the daughter had no right. The loanee was alive in the said case and in such circumstances, the said observations had come.
Accordingly, the present revision petition being bereft of any merit is dismissed.
20.11.2014 (G.S. SANDHAWALIA)
shivani JUDGE
SHIVANI GUPTA
2014.11.29 12:13
I attest to the accuracy and
integrity of this document
Chandigarh