Gujarat High Court
Ashokbhai Thakorbhai Parmar vs Bhagubhai Naranbhai Patel on 25 February, 2013
Author: C.L. Soni
Bench: C.L. Soni
ASHOKBHAI THAKORBHAI PARMARV/SBHAGUBHAI NARANBHAI PATEL C/SA/263/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 263 of 2012 With CIVIL APPLICATION NO. 12934 of 2012 In SECOND APPEAL NO. 263 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI Sd/- ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ ASHOKBHAI THAKORBHAI PARMAR & 1 Versus BHAGUBHAI NARANBHAI PATEL & 4 ================================================================ Appearance: MR DHIRAJ M PATEL, ADVOCATE for the Appellants MR ZUBIN F BHARDA, ADVOCATE for the Respondents NOTICE SERVED for the Respondent(s) No. 4 - 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 25/02/2013 ORAL JUDGMENT
1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiffs who filed Regular Civil Suit No.134 of 1990 for permanent injunction.
2. Case of the plaintiffs is that the plaintiffs are sons of defendant No.6, named Thakorbhai Vallabhbhai Parmar, who died pending the proceedings before the lower Court. They are managing the joint Hindu family property situated at Mota Borsara, bearing Survey Nos.160, 233, 301 and 409. It is further case of the plaintiffs that the above-said lands came to the family of the plaintiffs from their ancestor Vallabhai Keshavbhai Parmar in partition in the year 1968 and revenue Entry No.589 to that effect was also made on 3.10.1968, which was certified on 12.11.1968. Plaintiffs have further averred that at the time of promulgation, Survey No.160 came to be numbered as Block No.122 and the plaintiffs have right, title and interest in the said Block No.122. Plaintifs have further averred that defendant No.6 has not been in a position to look after the joint family and he has been acting against interest of the family. It is further case of the plaintiffs that on getting copy of the revenue record in respect of Block No.122, plaintiffs came to know that the said land was sold away and it was sold by power of attorney of defendant No.6- Uttamchand Jawanmal. It is further case of the plaintiffs that the said power of attorney had no right or authority to execute sale deed. Plaintiffs further averred that sale deed executed by power of attorney was against the provisions of the Tenancy Law as defendant Nos.1 to 5 are non-agriculturists and, therefore, said sale was invalid and ineffective. Since possession of the plaintiffs on the basis of the above-said sale was obstructed and tried to be snatched away by the defendants and since the plaintiffs got copies of the entries of the revenue record on 17.2.1990, the suit is filed.
3. Defendant Nos.1 to 5resisted the suit by filing written statement at Exh.21 and denied the allegations made in the plaint and also denied that defendant No.6 was not owner of the property. Defendant Nos.1 to 5 have also stated that the suit land was already recorded in the name of defendant No.6 in the year 1968 and defendant No.6 thus was absolute owner of the suit land and over and above, defendant No.6 since having been in possession for last more than 12 years, he also became owner of the suit land by adverse possession. Defendant Nos.1 to 5 further stated that defendant No.6 had made application for non-agriculture purpose on 9.2.1987 and on the said application, order granting non-agriculture permission was also given by the competent authority. It is further stated that defendant No.6 executed one Satakhat to Shaileshbhai Jawanmal Shah on 22.6.1986 and thereafter, suit land was divided into 33 plots and on 21.2.1987, power of attorney of defendant No.6 executed sale deed in favour of defendant Nos.1 to 5 and handed over possession of the suit land to defendant Nos.1 to 5. Defendant Nos.1 to 5 have further stated that since defendant No.6 was obstructing and interfering with possession of the suit land of defendant Nos.1 to 5, defendant Nos.1 to 5 filed Special Civil Suit No.127 of 1987 for permanent injunction, which was granted in their favour and confirmed by this Court in First Appeal No.10876 of 1989.
4. So far as defendant No.6 is concerned, defendant No.6 filed written statement at Exh.42. He stated that the suit land was not of his absolute ownership but he was having share in the suit land and defendant Nos.1 to 5 have got sale deed executed on the basis of the power of attorney, and defendant defendant Nos.1 to 5, therefore, do not get any right or interest in the suit property.
5. Learned Trial Judge on appreciation of the evidence came to the conclusion that suit land came to the share of the father of the plaintiffs in the year 1968 and he became absolute owner of the property. Learned Trial Judge further recorded that it clearly appears that defendant No.6 lost in earlier proceedings filed against him and present suit is filed by plaintiffs in collusion with defendant No.6. Learned Trial Judge further recorded that defendant Nos.1 to 5 have come into possession of the suit land by way of registered sale deed and their possession is already recognized in earlier proceedings which were filed against defendant No.6. On the above-said conclusion, learned Trial Judge found that the plaintiffs have failed to make out any case for grant of permanent injunction in their favour and ultimately dismissed the suit by judgment and decree dated 27.2.2009.
6. Plaintiffs, therefore, preferred Regular Civil Appeal No.217 of 2012. Learned Appellate Judge also found that defendant No.6 had become absolute owner of the property in the year 1968 on account of partition and thereafter, he continued to be in possession of the suit property. Learned Appellate Judge also recorded that defendant Nos.1 to 5 had to file a suit against defendant No.6 to protect their possession and defendant No.6 has lost upto to this Court in the first appeal. Learned Appellate Judge also recorded that defendant No.6 had sold away the property considering necessity of the joint family and defendant No.6 had also received full consideration in respect of the suit property at the time of sale of the property to defendant Nos.1 to 5. Learned Appellate Judge also further recorded that defendant No.6 has always been in good state of mind and has never raised any objection against the sale deed made in favour of defendant Nos.1 to 5. Suit which was filed by defendant Nos.1 to 5 in the year 1987 was during the lifetime of defendant No.6. Learned Appellate Judge then observed that if at all the sale deed was not genuine or valid, it was for the plaintiffs to seek declaration against the sale deed but no such declaration is sought by the plaintiffs. With the above such conclusion, learned Appellate Judge also dismissed the appeal by judgment and decree dated 27.9.2012. Hence, this appeal.
7. I have heard learned advocates for the parties.
8. Learned advocate Mr. Patel appearing for the appellants submitted that there is no dispute about the fact that the suit property was ancestral property and when it came to be recorded in name of defendant No.6, it continued to be ancestral property. Mr. Patel submitted that if the ancestral property was not partitioned between the co-parceners, plaintiffs were justified in filing suit for permanent injunction to protect their interest and possession in the suit property. Mr. Patel submitted that sale deed made in favour of defendant Nos.1 to 5 was ab initio void for two reasons, viz. (1) defendant No.6 had no right or authority to sell the ancestral property wherein the plaintiffs, who were at the relevant time were minor, had got share in the property and (2) defendant Nos.1 to 5 were and are non-agriculturists and they were not entitled to purchase agricultural land. Mr. Patel, therefore, submitted that no declaration for such void transaction is required and suit for permanent injunction is maintainable. He submitted that simply because there was earlier suit filed by defendant Nos.1 to 5 against defendant No.6 and since there was injunction granted against defendant No.6 is no ground to non-suit the plaintiffs when the present suit is filed on the basis of entitlement of the plaintiffs in the ancestral property. In support of his submission, Mr. Patel has relied on the following decisions of the Hon ble Supreme Court, viz.
Ishwar Bhai C. Patel alias Bachubhai Patel Vs. Harihar Behera and Another reported in (1999)3 SCC 457 to point out that those defendants who do not present themselves for cross-examination and refuse to enter in the witness box in order to refute allegations made against them, Courts should draw adverse inference against such defendant.
Dhurandhar Prasad Singh Vs. Jai Prakash University and others reported in AIR 2001 SC 2552, to point out that void transactions are not required to be set aside, they remained void forever and no declaration is necessary to declare such transactions as null and void.
Madhegowda (Dead) By LRs. Vs. Ankegowda (Dead) By LRs and others reported in (2002) 1 SCC 178, to point out that alienation of minor s property by de facto manager/ guardian is per se invalid and void ab initio and in such case, question as to whether there was a legal necessity or not is not required to be gone into.
Mr. Patel further pointed that even ratification by minor of invalid transfer would not validate sale transaction of his property by de facto guardian.
9. As against the above arguments, learned advocate Mr. Bharda appearing for respondent Nos.1 and 2- original defendant Nos.1 and 2 submitted that Courts below have found as a matter of fact that the suit property had already come to the share of defendant No.6 in the year 1968 in family partition and since then he has been enjoying the suit property as absolute owner. He pointed out that defendant No.6 had consciously given power of attorney for the purpose of sale of his land. For that purpose, he made application for N.A. permission, whereon order for N.A. permission was passed by the competent authority and the suit land was also divided into 33 plots and on the basis of the power of attorney, sale deed was executed in favour of defendant Nos.1 to 5. Mr. Bharda pointed out that when sale deed was executed, defendant No.6 did not raise any objection. He was fully aware about transfer of suit property in favour of defendant Nos.1 to 5. He further submitted that Courts below have recorded that the suit is clearly appeared to have been filed in collusion with defendant No.6, who lost in earlier proceedings. He pointed out that the plaintiffs had all throughout knowledge that the suit property was entered in the revenue record in the name of defendant No.6. Therefore, if the suit property was in the name of defendant No.6 and if defendant No.6 executed power of attorney and not disputed execution of such power of attorney and also subsequent execution of sale deed on the basis of power of attorney, the plaintiffs are not entitled to bring suit only for permanent injunction without seeking declaration against power of attorney as also against sale deed in favour of defendant Nos.1 to 5. He pointed out that Courts below have recorded finding of fact that possession of the property is also transferred in favour of defendant Nos.1 to 5. He further submitted that even if in the entry proceedings, entry in respect of the suit property was cancelled on the ground that sale in favour of defendant Nos.1 to 5, who were non-agriculturists, was not legal and valid, then also, such cancellation of entry was not sufficient to deprive defendant Nos.1 to 5 from their entitlement to enjoy the suit property till either the competent court of law or competent authority declares the sale transaction made in favour of defendant Nos.1 to 5 as invalid and void. He, therefore, submitted that Courts below have not committed any error in refusing to grant permanent injunction in the suit of the plaintiffs.
10. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below, it appears that the plaintiffs have filed suit for permanent injunction on the ground that the suit property is ancestral property and defendant No.6 was not absolute owner of the suit property, and further that defendant No.6 was not acting in the interest of the family and therefore, sale transaction made by defendant No.6 was illegal and by such sale transaction, right, title and interest of the plaintiffs in the suit property are not affected.
11. It appears that Courts below on appreciation of the evidence found that name of defendant No.6 was entered in the revenue record in the year 1968 on account of partition of the joint family property, and defendant No.6 has been enjoying ownership and possession of the suit property. It further appears that in the year 1987, after the suit property was sold to defendant Nos.1 to 5 by the power of attorney of defendant No.6, defendant No.6 was causing interference with possession of the suit land of defendant Nos.1 to 5 and therefore, defendant Nos.1 to 5 had to file Special Civil Suit No.127 of 1987 and defendant Nos.1 to 5 were protected in the suit, which was also confirmed by this Court in the first appeal filed by defendant No.6.
12. As observed by the Courts below, after defendant No.6 lost in first appeal, the plaintiffs have filed present suit only for permanent injunction. Courts belows have further observed that present suit appears to be in collusion with defendant No.6. It is not difficult to believe that present suit filed by the plaintiffs is in collusion with defendant No.6 because if we peruse the stand taken by defendant No.6 in the written statement, defendant No.6 has supported the case of the plaintiffs by stating that he was having only share in the property and he was not absolute owner of the property, therefore, sale deed in favour of defendant Nos.1 to 5 was not legal one and on the basis of such sale deed, defendant Nos.1 to 5 do not acquire any right or title in the suit property.
13. In view of above facts, when defendant No.6 sold the property in favour of defendant Nos.1 to 5 and once defendant Nos.1 to 5 have got protection from the competent court of law against defendant No.6, the plaintiffs were not entitled to permanent injunction against defendant Nos.1 to
5. If plaintiffs have any right in the suit property and if defendant No.6 has acted against the interest of the plaintiffs by selling away the entire suit property depriving the plaintiffs of their legitimate right in the ancestral property, the plaintiffs should have filed suit for declaration for their rights in the property and for cancellation of the sale deed made by defendant No.6 in favour of defendant Nos.1 to 5. Admittedly, the plaintiffs have not sought any declaration and have remained content with the prayer of permanent injunction. Courts below have found that there is a sale deed in favour of defendant Nos.1 to 5 and they are in possession of suit land on the basis of the sale deed. Therefore, for the purpose of grant of permanent injunction, plaintiffs could not be said to have proved their case against defendant Nos.1 to 5 who are found to be in lawful possession on the basis of the sale deed executed by defendant No.6 in their favour.g
14. In the facts situation of the present case, the judgments cited Mr. Patel will have no application. However, the below mentioned judgments need to be referred.
14.1. In the case of Sunil Kumar and Another Vs. Ram Parkash and others reported in (1988)2 SCC 77, Hon ble Supreme Court has held and observed in paragraph Nos.6,7 and 8 as under:-
6. In this appeal we are called upon to decide the only question whether a suit for permanent injunction restraining the Karta of the joint Hindu family from alienating the house property belonging to the joint Hindu family in pursuance of the agreement to sell executed already in favour of the predecessor of the appellants, Jai Bhagwan, since deceased, is maintainable. It is well settled that in a Joint Hindu Mitakshara Family, a son acquires by birth an interest equal to that of the father in ancestral property. The father by reason of his paternal relation and his position as the head of the family is its Manager and he is entitled to alienate joint family property so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt. The power of the Manager of a joint Hindu family to alienate a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 Moo Ind App 393.
"The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage is, by the Hindoo Law, a limited and qualified power, which can only be exercised rightly by the Manager in a case of need, or for the benefit of the estate. But where the charge is one that a prudent owner would make in order to benefit the estate, a bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, or the criteria to be regarded. If that danger arises from any misconduct to which the lender has been a party, he cannot take advantage of his own wrong to support a charge in his favour against the heir, grounded on a necessity which his own wrong has helped to cause.
A lender, however, in such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. If he does inquire, and acts honestly, the real existence of an alleged and reasonably-credited necessity is not a condition precedent to the validity of his charge, which renders him bound to see to the application of the money."
7. At the outset it is to be noticed that in a suit for permanent injunction under Section 38 of the Specific Relief Act by a coparcener against the father or Manager of the Joint Hindu family property, an injunction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property. Subsection (h) of Section 38 of Specific Relief Act bars the grant of such an injunction in the suit. Secondly, the plaintiff-respondents brought this suit for permanent injunction restraining their father, the defendant No. 1, from selling or alienating the property to the defendant No. 2 or any other person and also restraining the defendant No. 2 from proceeding with the suit for specific performance of the agreement to sell pending in the civil court. Thus the relief sought for is to restrain by permanent injunction the Karta of the Joint Hindu Mitakshara Family, i.e. defendant No. 1, from selling or alienating the house property in question. The defendant No. 1 as 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 a genuine legal necessity for such transfer. If such a suit for injunction is held maintainable the effect will be that whenever the father as Karta of the Joint Hindu coparcenary property will propose to sell such property owing to a bona fide 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.
8. The judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Singh, AIR 1972 Punj and Har 147 wherein it was held that a suit for permanent injunction against the father to restrain him from alienating the joint Hindu family property was maintainable has been off-set by the Division Bench in Jujhar Sing v. Giani Talok Singh (AIR 1987 Punj and Har 34) (supra) wherein it has been held that a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener has got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. Following this decision the High Court allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the trial Court. We do not find any infirmity in the findings arrived at by the High Court.
In the case of Subhodkumar and Others Vs. Bhagwant Namdeorao Mehetre and others reported in (2007) 10 SCC 571, Hon ble Supreme Court has held and observed in paragraph Nos.11 and 12 as under:-
11. We do not find any merit in the above civil appeal. Even assuming for the sake of argument that the conveyance dated 31.3.75 executed by Nimbaji and his four sons was not for legal necessity even then the defendants' position cannot improve. Nimbaji was the Karta of the Hindu Undivided Family. Lands admeasuring 9 acres and 16 gunthas was an ancestral propertyof Nimbaji. Nimbaji had five sons. Nimbaji and his four sons agreed to sell their ancestral lands to the plaintiffs. Agreement was reduced into writing. Agreement was registered. Agreement was followed by a conveyance. Conveyance was followed by possession given to the plaintiffs who claim to be forcibly dispossessed. Defendant Nos.1 to 5 failed to institute proceedings for general partition. The primary step of defendant Nos.1 to 5 was to sue for partition. They failed to take any steps in this regard. No consequential relief was claimed by them for partition and for demarcation for their share. The plaintiffs had instituted the suit for possession on the ground that they were forcibly dispossessed by defendant Nos.1 to 5. Since the Karta of Hindu Undivided Family with his four sons had executed the conveyance in favour of the plaintiffs, the suit filed by the plaintiffs for possession cannot be dismissed on the ground of lack of legal necessity. A Karta has power to alienate for value the joint family property either for necessity or for benefit of the estate. He can alienate with the consent of all the coparceners of the family. When he alienates for legal necessity he alienates an interest which is larger than his undivided interest. When the Karta, however, conveys by way of imprudent transaction, the alienation is voidable to the extent of the undivided share of the non-consenting coparcener which in the present case was Panditrao. In the present case, Panditrao did not sue for partition. He did not ask for demarcation of his share. Defendant Nos.1 to 5 who claim through Panditrao seek possession of a specific portion of the land to be demarcated without filing a suit for partition by metes and bounds. The conveyance by Nimbaji and his four sons is not disputed by the said coparceners. The conveyance executed by Nimbaji and others is true which is different from saying that it is an imprudent transaction. Once it is found that the conveyance executed by Nimbaji and others is true under which the plaintiffs were put in possession and later on disposed, in the suit for possession, in such an event, the issue of legal necessity becomes irrelevant. A mere declaration that transaction was imprudent or was not for legal necessity in such a suit cannot give any right to defendant Nos.1 to 5 to get the demarcated portion of 2 acres 2 gunthas of land on the southern side without the said defendants taking appropriate proceedings in accordance with law.
12. In the case of Sunil Kumar and another v. Ram Parkash and others, AIR 1988 SC 576, this Court has held that the right to obstruct alienation is different from the right to challenge the alienation. The coparcener has a right to challenge the alienation. However, he has no right to interfere in the act of management of the joint family affairs. In this connection, the following observations in paras 21 to 26 of this Court are relevant to be noted :
"21.
In a Hindu family, the karta or manager occupies a unique position. It is not as if anybody could become manager of a joint Hindu family. "As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property." The manager occupies a position superior to other members. He has greater rights and duties. He must look after the family interest. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties. In other words, the actual possession and management of the joint family property must vest in him. He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of them.
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.
23. 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. M.T. Babooee (1856) 6 Moo Ind App 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 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 :
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 Court 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 bona fide 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].
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 coparcener 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 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.
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 forsee 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 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."
15. In light of the above principles of law settled by Hon ble Supreme Court, the plaintiffs were required to challenge the alienation made by defendant No.6. The plaintiffs have stated that suit property was ancestral property and defendant No.6 as a Karta was not acting in the interest of the family members. Even if the plaintiffs were right in their say that defendant No.6 was not acting in the interest of other co-parceners in respect of the suit property, alienation made by defendant No.6 in favour of defendant Nos.1 to 5 was required to be challenged by the plaintiffs. It may be that defendant No.6 has no absolute right and authority to sell the ancestral property and it may be that alienation made by defendant No.6 in favour of defendant Nos.1 to 5 was not legal but unless such alienation of suit property is challenged and unless alienation is declared to be invalid, the plaintiffs are not entitled to any relief for permanent injunction.
16. For the reasons stated above, the appeal is required to be dismissed. Hence, the appeal is dismissed.
17. In view of the dismissal of the main Second Appeal, Civil Application does not survive. The same is disposed of accordingly.
Sd/-
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