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2003 DIGILAW 748 (PNJ)

Jagdish Parshad v. Laxmi Narain

2003-05-20

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 27.1.2003 passed by the learned District Judge, Narnaul dismissing the appeal of the plaintiff-petitioner, in which the order dated 15.6.2001 was impugned. The Civil Judge in his order dated 15.6.2001 has dismissed the application of the plaintiff-petitioner for issuance of interim directions restraining the defendant-respondents from alienating, creating charge of any kind on and from the houses in dispute or forcibly ousting the plaintiff-petitioner from the houses in dispute. The prayer was made in the suit seeking relief of permanent injunction. The afore-mentioned relief was sought on the basis of the under-taking dated 1.12.1998 made by the defendant-petitioner, wherein the defendant-respondent No. 1 had consented before the Court of Additional District Judge, Narnaul that he would dispose of the property in question after obtaining consent of the plaintiff-petitioner. Both the Courts below have come to the conclusion that the afore-mentioned order would not lead to the conclusion that the defendant-respondent No. 1 is not the owner of the demised property and, therefore, defendant-respondent No. 1 can alienate the same in accordance with law. The views of the learned Appellate Court is based on the judgment of the Supreme Court in Sunil Kumar and Anr. v. Ram Parkash and Ors., (1988-2)94 P.L.R. 159 (S.C.) and a judgment of this Court in the case of Darshan Singh v. Harbhajan Singh, 1992 P.L.J. 573. The learned Additional District Judge has considered the statement dated 11.12.1998 made by defendant-respondent before the District Judge, Narnaul in some earlier litigation and has opined as under:- "12. The property in question is claimed to be ancestral property in the hands of Laxmi Narain. The plaintiff has claimed that the suit property is coparcenary property of the parties. Defendant No. 1 Laxmi Narain is the father of the plaintiff and as such, Karta of the Joint Hindu Family. He would be deemed to be manager of the Joint Hindu Family property. In view of the ratio of Darshan Singhs and Sunil Kumars case (supra), suit brought by Tara Chand against Laxmi Narain, the manager of the Joint Hindu Family property restraining him from alienating the ancestral property is not competent. 13. He would be deemed to be manager of the Joint Hindu Family property. In view of the ratio of Darshan Singhs and Sunil Kumars case (supra), suit brought by Tara Chand against Laxmi Narain, the manager of the Joint Hindu Family property restraining him from alienating the ancestral property is not competent. 13. The question now is as to what would be the effect of the statement of Laxmi Narain made on 11.12.1998 where the undertook to sell the suit property or its part only with the consent of both of his sons. The question may be put in different words asking as to whether the ratio of Darshan Singh s and Sunil Kumar s cases (supra) would not apply to the cases in hand in view of the aforesaid statement of Laxmi Narain made on 11.12.1998. In my opinion, the aforesaid part of the statement of Laxmi Narain would have no effect on the case. A person cannot be claimed estopped against the established proposition of law. The proposition of law would not change in view of any undertaking of a person. The position would remain that it is a sale intended to be made by Laxmi Narain of ancestral property and the plaintiff who is son of Laxmi Narain wants to restrain him from alienating the suit property. 14. A question still remains to be answered. Restraint order can not be passed against the father restraining him from alienating the suit property for legal necessity. Learned counsel for the appellant has contended that after the sale of the shop, Laxmi Narain is left with no legal necessity to self any portion of the suit property. Legal necessity is not a concept which can not change after passage of time. Legal necessity can not be said to end once for all. During the course of life, a person may come to have legal necessity to sell his property which he did not have sometime back. So, it can not be said, at this stage, that Laxmi Narain could have no legal necessity. If he sells the ancestral property, the plaintiff would be able to challenge that sale only on the ground that Laxmi Narain had no legal necessity to sell the same. It is in that suit that the said question would not be gone into. 15. If he sells the ancestral property, the plaintiff would be able to challenge that sale only on the ground that Laxmi Narain had no legal necessity to sell the same. It is in that suit that the said question would not be gone into. 15. In these circumstances, the suit is not competent as is laid down in Darshan Singhs and Sunil Kumars cases (supra) and when a suit is not competent, no ad-interim injunction order can be made in that suit in favour of the plaintiff. In these circumstances, I find no reason to interfere with the impugned order. The appeal is, therefore, dismissed." 2. Mr. R.M. Singh, learned counsel for the plaintiff-petitioner has repeated the same argument before me that once the defendant-respondent has suffered a statement before the learned Additional District Judge on 11.12.1989, then the afore-mentioned statement and compromise is binding on him and the injunction prayed for by the plaintiff-petitioner should have been granted. The learned counsel has pointed out that if the defendant-respondent is not held bound by his statement then the compromise decree based on 11.12.1998 would be a waste paper. 3. After hearing the learned Counsel, I do not feel persuaded to take a view different than the one taken by the Courts below. It has prima facie been found and so is claimed by the plaintiff-petitioner that the property in dispute is ancestral property in the hands of defendant-respondent who is father of plaintiff-petitioner. Defendant-respondent being the Karta of the Joint Hindu Family is a Manager of the property and, therefore, cannot be restrained from alienating the suit property belonging to Joint Hindu Family for legal necessity or as an act of good management. The Supreme Court in Sunil Kit-mars case (supra) has held that such a suit would not be maintainable. The views of their Lordships in Sunil Kumar s case read as under:- "8. The Supreme Court in Sunil Kit-mars case (supra) has held that such a suit would not be maintainable. The views of their Lordships in Sunil Kumar s case read as under:- "8. The judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Singh, (1971)73 P.L.R. 925 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 Singh v. Giant Talok Singh, (1987-1)91 P.L.R. 399 (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." "25. 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 rights 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. If there is no such need or benefit, the purchaser takes risk and the rights 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." 4. When the facts of the instant case are examined in the light of the above principles laid down by the Supreme Court, it becomes evident that the property in dispute is prima facie found to be joint Hindu property and the suit has been filed by the plaintiff-petitioner, who is son of defendant-respondent No. 1. Therefore, no order of injunction could be passed against the Karta of the family because prima facie such a suit would not be even maintainable. The legal necessity cannot remain static and it is for the karta of the Joint Hindu Family to decide about the existence of legal necessity or use the property as an act of good management. The order dated 11.12.1998 passed by the learned Additional District Judge, Narnaul cannot remain binding on the defendant-respondent for all times to come. Therefore, the instant petition is devoid of any merit and is, thus, liable to be dismissed. 5. For the reasons afore-mentioned, this petition fails and the same is dismissed. However, it is made clear that any observation made in this order shall not be construed as an expression of opinion on merits of this case.