9911796707
TMI Blog1988 (1) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... his application however, was dismissed. Thereafter the 3 sons of defendant No. 1 as plaintiffs instituted civil Suit No. 31 of 1982 in the Court of Sub-Judge, IInd Class, Kaithal for permanent injunction stating inter alia that the said property was joint Hindu Family coparcenary property of the plaintiffs and defendant No. 1; that there was no legal necessity for sale of the property nor it was an act of a good management to sell the same to the defendant No. 2 without the consent of the plaintiffs and without any legal necessity. It was, therefore prayed that a decree for permanent injunction be passed in favour of the plaintiffs and against the defendant No. 1 restraining him from selling or alienating the property to the defendant No. 2 or to any other person and also restraining defendant No. 2 from proceeding with the suit for specific performance pending in the civil court. 2. The defendant No. 2, Jai Bhagwan since deceased, filed a written statement stating inter alia that the defendant No. 1 disclosed that the suit property was owned by him and that he was in need of money for meeting the expenses of the family including the education expenses of the children and also f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property to defendant No. 2. In consequence, the appeal is accepted and the judgment and decree of the trial court under attack are set aside. 5. Against this judgment and decree, the instant appeal on special leave has been preferred by the appellants i.e. the sons of the defendant-respondent No. 1, the karta of the Joint Hindu Family. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 1981 by the Sub-Judge, 1st Class, Kaithal. 10. For the reasons aforesaid we affirm the judgment and decree made by the High Court and dismiss the appeal without any order as to costs. K. Jagannatha Shetty, J. 11. I agree that this appeal should be dismissed but I add a few words of my own. The question raised in the appeal is whether interference of the Court could be sought by a coparcener to interdict the karta of Hindu undivided family from alienating coparcenary property, The question is of considerable importance and there seems to be but little authority in decided cases. 12. The facts of the case lie in a narrow compass. In February, 1978, Ram Prakash entered into agreement for sale of certain house property in favour of Jai Bhagwan, The property has been described in the agreement as self acquired property of Ram Prakash. It was agreed to be sold for ₹ 21,400/-. Jai Bhagwan paid ₹ 5,000/- as earnest money on the date of agreement. He promised to pay the balance on the date of execution of the sale deed. Ram Prakash, however, did not keep up his promise. He did not execute the sale deed though called upon to do so. Jai Bhagwan instituted a suit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The suit being one for permanent injunction, this question cannot be gone into and decided. It is also pertinent to note in this connection that the case of specific performance of agreement of sale bearing suit No. 570 of 1978 had already been decreed on 11th May, 1981 by the Sub-Judge, Ist Class, Kaithal. 10. For the reasons aforesaid we affirm the judgment and decree made by the High Court and dismiss the appeal without any order as to costs. property is not maintainable. The learned District Judge following the said decision reversed the decree of the trial court and 'dismissed the suit. The plaintiff preferred second appeal which was summarily dismissed by the High Court. 15. The plaintiffs, by special leave, have appealed to this Court. The arguments for the appellants appear to be attractive and are as follows: There is no presumption under law that the alienation of joint family property made by Karta is valid. The karta has no arbitrary power to alienate joint family property. He could do so only for legal necessity or for family benefit. When both the requirements are wanting in the case, the coparceners need not vainly wait till the transaction is completed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayan Dhond Savant) I.L.R. 7 Bom 467 and Mayne's Hindu Law and Usage (6th edition, paragraph 270) and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal conditions viz. the undivided state - it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family. 20. Adverting to the nature of the property owned by such a family, learned Judge proceeded to state at P. 155: As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'uno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 Court of law. The other members of the family have 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 28. There is one more difficulty for the sustainability of the suit for injunction with which we are concerned. Temporary injunction can be granted under Sub-section (1) of Section 37 of the Specific Relief Act, 1963. It is regulated by the CPC, 1908. A decree for perpetual injunction is made under Sub-section (2) of Section 37. Such an injunction can be granted upon the merits of the suit. The injunction would be to restrain the defendant perpetually from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 of the Specific Relief Act governs the grant of perpetual injunction and sub Section 3 thereof, reads: when the defendant invades or threatens to invade the plaintiff's right to, or enjoyment-of, property, the Court, may grant a perpetual injunction in the following cases, namely: (a) Where the defendant is trustee of the property for the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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