N. D. V. BHATT, J. ( 1 ) IN this appeal, the appellant has challenged the judgment anddecree dated 30-1-1990 passed by the xv additional city civiljudge, Bangalore in o. s. no. 2701 of 1981. By the saidjudgment, the lower court dismissed the suit of the plaintiff. ( 2 ) THE facts relevant for the disposal of this appeal, brief lystated, are as under: plaintiff filed a suit at o. s. no. 2701 of 1981 against thedefendants praying for a decree for permanent injunctionrestraining the defendants from dealing with the scheduleproperty in any manner including entering into sale transactionwith regard thereto or otherwise making waste or causing anyencumbrances thereon and for other reliefs referred to in theprayer column. The suit schedule property is a house bearingno. 278, hosahalli extension, Bangalore measuring east towest 37'. 6" and north to south 45' having the boundary referredto in the schedule. It is not in dispute that the said property wasallotted to the husband of defendant 1 in the year 1963 by thekarnataka housing board (for short 'khb') and a regular saledeed was executed in favour of the husband of defendant 1 on20-11-1979 by virtue of ex. D. 56. However, it is the case of theplaintiff that he, husband of defendant 1 and others referred toin plaint para 1 constituted a joint family and the joint familyhas quite a good number of properties, and the suit property,according to plaintiff, was, in fact, purchased by the husband ofdefendant 1 with the assistance of the joint family propertyincome. The husband of defendant 1 died on 12-12-1980. Afterthe death of the husband of defendant 1, plaintiff, defendant 1and others did continue as members of joint family and the jointfamily properties continued as joint family properties. However,according to plaintiff, defendants 3 and 4 who are relatives ofdefendant 1 in league with each other are trying to defraud theplaintiff by creating certain documents making it to believe thatthe suit property in question is the exclusive property ofdefendant 1. He has referred to the details in this behalf at para5 of his plaint. On these allegations, in substance, he prayed fora decree for permanent injunction in terms referred to earlier. ( 3 ) THE suit of the plaintiff was resisted by the defendant 1 by her written statement. It was also resisted by defendants 3 and 4by a separate written statement. On these allegations, in substance, he prayed fora decree for permanent injunction in terms referred to earlier. ( 3 ) THE suit of the plaintiff was resisted by the defendant 1 by her written statement. It was also resisted by defendants 3 and 4by a separate written statement. In substance, defendant 1 tookup the contention that plaintiff has no right, title or interest inor in respect of the suit property. It was also contended bydefendant 1 that the property in question was the exclusiveproperty of her husband. She has given the details in that behalfin the course of her written statement. She also took up acontention that a suit for mere relief of injunction is notmaintainable. She prayed for the dismissal of the suit. ( 4 ) DEFENDANTS 3 and 4 in their written statement have asserted that plaintiff has no cause of action. In substance, they also took up a similar stand like the one taken by defendant 1. they prayed for the dismissal of the suit. ( 5 ) ON the basis of these pleadings, the following issues werer aised for discussion: (1) whether the plaintiff proves that he was in lawful possession on the date of suit? (2) whether the plaintiff proves that the defendants aredealing with the suit property and entitled for permanent injunction? (3) what order? ( 6 ) BEFORE the court below, plaintiff examined himself as p. w. 1 and p. ws. 2 to 5 were examined for him. Ex. P. 1 to p. 13 were marked for him. Defendant 1 examined herself as d. w. 1. Ex. D. 1 to d. 57 were marked for her. ( 7 ) THE lower court on a consideration of the respective contentions raised by the parties took the view that a suit for bare injunction without seeking a declaration of title in respectof the property, in the facts and circumstances of the case, is notmaintainable. In that view of the matter, the lower court did notthink it necessary to probe further into the question as towhether the suit property is a joint family property or not. In theresult, the suit of the plaintiff came to be dismissed on the basisof the finding given on issue no. 2. Hence, the instant appeal. In that view of the matter, the lower court did notthink it necessary to probe further into the question as towhether the suit property is a joint family property or not. In theresult, the suit of the plaintiff came to be dismissed on the basisof the finding given on issue no. 2. Hence, the instant appeal. ( 8 ) I have heard the arguments of Sri h. l. dattu, learned counsel for the appellant and Sri S. V. Shastry, Learned counsel for respondent 1. ( 9 ) THE point that would arise for consideration in this appealis as to whether the suit of the plaintiff for a decree for permanent injunction is not maintainable. ( 10 ) THE lower court has taken the view that plaintiffs title is challenged by defendant 1. It is also noticed that the lower court has taken the view that the suit for injunction in the instantcase is not a suit based on possession of the property. In thatview of the matter, in substance, the lower court has taken theview that the question of title would assume significance. Sinceaccording to the lower court, the title of the plaintiff ischallenged by the defendants, it took the view that a suit forinjunction without seeking a declaration as to title is notmaintainable. While reaching this conclusion, the lower courthas placed reliance on the decision of this court in b. m. shankarappa v chairman, citb and others. The lower courtincidentally also held that it is not as if defendant 1 would be amember of the joint family particularly, after the death of herhusband and even assuming that the property is a joint familyproperty, the status of defendant 1 would be that of a co-ownerand it is not as if the co-owner has no right to transfer theproperty and transfer by a co-owner of the common property willbe good to the extent to which the co-owner has got a right in it. ( 11 ) SRI dattu, learned counsel for the appellant contended that the decision of this court relied on by the court below and alluded to earlier has no application to the facts of this case. ( 11 ) SRI dattu, learned counsel for the appellant contended that the decision of this court relied on by the court below and alluded to earlier has no application to the facts of this case. Sri dattu, argued that once when the plaintiff bases his suit for adecree for permanent injunction on the allegation that theproperty is a joint family property, the lower court was requiredto go into that question and depending upon the finding on thatquestion, the lower court ought to have considered as to whetherthe final relief prayed for could not have been granted. Sri dattu, learned counsel submitted that such a course wasabsolutely necessary in order to avoid the multiplicity ofproceedings. ( 12 ) ON the other hand, Sri shastry, learned counsel for respondent 1 contended that the suit filed by plaintiff in theinstant case is not the usual suit for a decree for permanent injunction based on possession. Dilating on this aspect, thelearned counsel contended that in such a situation i. e. , in a suitfor permanent injunction based on possession, the question oftitle will not arise for consideration. It is argued by Sri shastrythat in the instant case plaintiff wants to circumscribe the rightsof defendant 1 in respect of the property in question on theallegation that he has also got a right in respect of the samewhich right is flatly denied by defendant 1. He, therefore,contended that plaintiffs title is rendered cloudy and in order toclear that cloud, relief for declaration of title was absolutelynecessary. The learned counsel argued that a suit for injunctionbased on title is not like a suit for partition or suit for possession. it is argued by Sri shastry that in a suit for partition or for thatmatter in a suit for possession which is based on title, thequestion of praying for declaration as such may not arise but in asuit for injunction which is based mainly on the question of titleand when that title is denied even to the knowledge of theplaintiff even prior to the suit, suit for a declaration is a must. the learned counsel argued that the ratio of the decision of thiscourt in shankarappa's case would apply in such a situation. ( 13 ) I have given my anxious consideration to the submissions made by the learned counsel on either side. the learned counsel argued that the ratio of the decision of thiscourt in shankarappa's case would apply in such a situation. ( 13 ) I have given my anxious consideration to the submissions made by the learned counsel on either side. ( 14 ) IT is noticed that undisputedly the property was allotted to the husband of defendant 1 by the Karnataka housing boardback in the year 1963 by virtue of ex. D. 17 which is anallotment order. It is further noticed that at a later point of time,to wit, on 20-11-1979, an absolute sale deed was executed infavour of defendant 1's husband by the khb. At this juncture, itis indeed necessary to refer to certain allegations made in theplaint itself to see as to what was the provocation for plaintiff tofile the suit in question. In this context, the allegations made inpara 5 of the plaint are required to be culled out. It reads asunder:"the defendants 3 and 4, relations of 1st defendant,have been moving around her, rather suddenly appearingto save her, apparently to secure documents got up toappear as if the 1st defendant alone has been the ownerwith exclusive rights of present possession and alienation. and in this direction, they have been hatching a plan toknock off the family property with the aid and reportedlyin the name of the 2nd defendant, an influential policeofficer as he happens to be. The 3rd defendant, has movedthe 1st defendant to his house from the hospital much tothe displeasure of the members of the family. The claim ofa widow of an erstwhile coparcener does not relate to anyspecific property held by the family, but only to a right to ashare; and until then only to joint residence andmaintenance. The defendants, thus, have no right to causeany sale or encumbrance upon the schedule property. Infact the defendants 2-4 doing it is a fraud on the family anda serious threat to the family; hence this suit for necessaryinjunctive and consequential reliefs. "a careful perusal of the said para will give an inkling into themind of the plaintiff as regards as to how he felt with referenceto the dealings between defendant 1 on the one hand and defendants 3 and 4on the other. "a careful perusal of the said para will give an inkling into themind of the plaintiff as regards as to how he felt with referenceto the dealings between defendant 1 on the one hand and defendants 3 and 4on the other. Further defendant 1 has, in thecourse of her written statement, among other things, stated thatshe is absolutely entitled to the schedule property and she wascompetent to negotiate and enter into agreements for sale of theschedule property. It is also significant to notice here that plaintiff hasalso not chosen to amend his plaint. If the totality of thecircumstances brought into being on record are discerned carefullyit is not possible to say that this is a case where the title ofthe plaintiff is obvious and unassailable. It is in this context, thequestion as to whether the ratio of the decision inshankarappa's case alluded to earlier is applicable to the facts ofthis case. The learned single judge of this court (sabhahit, j.)Has in the course of the said judgment in para 8, observed asunder:"it is obvious that the defendants have disputed the titleof the plaintiff. They have disputed the identity of the suitproperty as in the survey number alleged in the plaint. that being so, a suit for mere injunction without prayingfor declaration of title is not maintainable. It is not a casewhere the title of the plaintiff is obvious and unassailable. the title itself is challenged. That being so, injunctionwhich is an equitable remedy cannot be issued unless thetitle is proved. There is no prayer in the suit for declarationof title. Therefore, I am constrained to hold that the suititself is misconceived and the order of dismissal of the suitby the learned civil judge, in that way, is sustainable. " (emphasis supplied)a careful perusal of the observation made by the learned singlejudge would clearly go to show as to under what circumstances,declaration of title is necessary and as to under what circumstancesdeclaration of title is not necessary. The observationculled out hereinabove is self-explanatory and it is not necessaryto elaborate. " (emphasis supplied)a careful perusal of the observation made by the learned singlejudge would clearly go to show as to under what circumstances,declaration of title is necessary and as to under what circumstancesdeclaration of title is not necessary. The observationculled out hereinabove is self-explanatory and it is not necessaryto elaborate. However, even at the risk of repetition, it needs tobe stated at this stage that this is not a case where it can be saidthat plaintiffs title in respect of the suit property is obvious andunassailable, having regard to the fact that the property admittedlystood in the name of the husband of defendant 1, the samehaving been allotted in his favour in the first instance by khband thereafter sold to him absolutely. May be that it is possibleto prove that a property is a joint family property though it isactually purchased by one of the members of the joint family. however, there is no presumption that a property which standsin the name of an individual is a joint family property or for thatmatter, the family possesses joint family property. It is notnecessary to dilate on this aspect since All that is required to beseen in this case is as to whether the facts and circumstances ofthe case warrant a conclusion that plaintiffs title is unassailableand obvious. Under these circumstances, it is clear that a declarationof title was a must. I hasten to add here that the questionas to whether a declaration of title is necessary in a given casedepends upon the facts of each case. The facts leading to thefiling of this suit and various other factors will have to enter intojudicial verdict to decide the question as to whether the relief ofdeclaration is required to be sought for. In the instant case, forthe reasons stated earlier, a prayer for a declaration was a must. as pointed out earlier, plaintiff did not seek for amending theplaint either in the court below or for that matter in this court. in that view of the matter, the question of affording an opportunityto the plaintiff to amend the plaint also does not arise forconsideration. Under these circumstances, it becomes difficult tohold that the finding given by the court below is erroneous. ( 15 ) EVEN otherwise, it is required to be seen as to whether plaintiffs suit for a permanent injunction in the way and manner as is brought by him is maintainable. Under these circumstances, it becomes difficult tohold that the finding given by the court below is erroneous. ( 15 ) EVEN otherwise, it is required to be seen as to whether plaintiffs suit for a permanent injunction in the way and manner as is brought by him is maintainable. As rightly pointedout by the court below even if it is possible to conclude that theproperty purchased by the husband of defendant 1 was a jointfamily property or a coparcenery property, the same loses itscharacteristic of coparcenery property after the death of thehusband of defendant 1 in the year 1980, having regard to the provisions of section 6 of the hindu succession act. As indicated therein, whenever a female heir referred to in schedule I of section 14 of the hindu succession act intervenes consequent on the death of a coparcener, the coparcenery is disrupted and the heirs of such a person will hold the property as co-owners and not by survivorship. In that view of the matter, it is clear that even assuming for the time being that the suit property was a coparcenery property at one point of time after the death of the husband of defendant 1, the interest of the deceased would devolve by succession and her status with reference to the property in question is that of a co-owner. At this juncture, it is relevant to refer to the provisions of section 44 of the Transfer of Property Act, which reads as under:"where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. "a careful perusal of the above provision would go to show that one co-owner is indeed entitled to sell his interest in a property in favour of anyone he likes though the nature of the remedy of the purchasers regarding a dwelling house will depend upon as to whom the interest is sold. In the instant case, plaintiff has prayed for a decree for permanent injunction restraining the defendants from dealing with the schedule property in any manner including entering into sale transactions with regard thereto or otherwise making waste or causing any encumbrances thereon. In the light of the provisions of section 44 of the Transfer of Property Act, it is obvious that the sale, if any, executed by defendant 1 in favour of anybody will be good to the extent of her right and if she has got an absolute right in respect of the property, the vendee will take an absolute interest in the property. If she has got only an undivided interest in the property, the vendee will only step into her shoes. 'nemo dat quod non habet' (no one gives what he does not possess) is an oft quoted principle which would apply in such a situation. Looked at from that point of view also plaintiff cannot circumscribe the rights of defendant 1 in the way and manner as he has sought for. If the whole matter is viewed from this angle also, the suit in the present form appears to be untenable. Sri dattu, learned counsel for the appellant contended that defendant 1 being issueless it is possible that her right and interest in the property will devolve upon plaintiff and other members of the family and looked at from that point of view the suit in the present form can be justified. Even otherwise, it is pointed out that a restricted relief atleasb can be granted in favour of the plaintiff. Even otherwise, it is pointed out that a restricted relief atleasb can be granted in favour of the plaintiff. In my opinion, the question of granting restricted relief does not arise having regard to the fact that the vendee does not get more than what the vendor has got and the right that he gets and nothing more than that. (emphasis supplied) ( 16 ) FOR the reasons stated hereinabove, it is clear that the suit brought by the plaintiff is not maintainable. I may also observe here that neither the court below nor this court has chosen to give any finding on the question as to whether the property in question is a joint family property or whether it was a separate property of the husband of defendant 1. That is not a question which has arisen for consideration in this suit and that therefore, the question of giving a finding on that aspect did not arise. Whatever observations were made by this court were made prima facie, for the purpose of seeing as to whether it can be said that plaintiffs title to the suit property is obvious and unassailable. ( 17 ) SUBJECT to the observations made hereinabove, the appeal is liable to be dismissed. Accordingly appeal is dismissed. In the facts and circumstances of the case, I make no order as to costs. --- *** --- .