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2012 DIGILAW 306 (PNJ)

Surinder Kaur v. Gursharan Singh

2012-02-22

TEJINDER SINGH DHINDSA

body2012
JUDGMENT Mr. Tejinder Singh Dhindsa, J.: - The suit for permanent injunction filed by the plaintiffs against the defendants was decreed in their favour by the Trial Court vide judgement dated 19.8.2010. Separate civil appeals were filed by the defendants against the judgement and vide common impugned judgement dated 22.2.2011, passed by the Additional District Judge, Fast Track Court, Ropar the appeals have been allowed and the suit of the plaintiffs has been dismissed. Resultantly, the plaintiffs-appellants are in second appeal before this Court. 2. Briefly noticed, plaintiff no.1 is the mother of plaintiff no.2 to 4 and was married to defendant no.1 on 4.5.1990. Apparently, the marriage between the parties did not work well and it was stated that plaintiff no.1 along with her children was turned out of the matrimonial house on 16.7.1998 and since then the plaintiffs had been residing with the father of plaintiff no.1. It was stated that plaintiff no.1 had filed an application under Section 125 Cr.P.C and an amount of Rs.1300/- per month had been fixed towards maintenance allowance. Defendant no.1 was stated to be working in Sugar Mill, Morinda. Defendant no.2 is the father of defendant no.1 and it was pleaded that there was ancestral property which was to be inherited by defendant no.1 as per his share in the property. It is pleaded that plaintiffs no. 2 to 4 have legal right in such property, they being the daughters and sons of defendant no.1. As the defendants were threatening to alienate the property as such a suit for permanent injunction had been instituted. 3. The defendants contested the suit in terms of filing separate written statements. Defendant no.1 admitted the factum of marriage with plaintiff no.1 and the birth of plaintiffs no.2 to 4 was also admitted. It was denied that the property in dispute was ancestral property and it was stated that it was defendant no.2, who was the owner in possession of the suit property. Defendant no.2, father of defendant no.1 also filed a written statement on identical lines. 4. Based on the pleadings, the parties went to trial on the following issues:- “1. Whether the plaintiffs are entitled to the injunction prayed for?OPP. 2. Whether the suit is not maintainable in the present form?OPD. 3. Relief.” 5. Defendant no.2, father of defendant no.1 also filed a written statement on identical lines. 4. Based on the pleadings, the parties went to trial on the following issues:- “1. Whether the plaintiffs are entitled to the injunction prayed for?OPP. 2. Whether the suit is not maintainable in the present form?OPD. 3. Relief.” 5. The Trial Court upon having heard respective counsel for the parties and having scanned the evidence led on record, decreed the suit of the plaintiffs in their favour for the grant of relief of permanent injunction restraining the defendants from selling, mortgaging and transferring in any manner the suit property. Defendants no.1 and 2 filed separate civil appeals against the impugned judgement and decree dated 19.8.2010 passed by the Trial Court and vide common impugned judgement dated 22.2.2011 the Additional District Judge, Fast Track Court, Ropar has accepted the appeals and dismissed the suit of the plaintiffs. 6. I have heard Mr. Anil Kumar Garg, learned counsel for the plaintiffs-appellants at length. 7. It was argued that the Lower Appellate Court has erred in reversing the well reasoned findings of the Trial Court. Learned counsel would further contend that the respondents were liable to maintain the plaintiffs-appellants and the appellants have a right to create a charge over the property belonging to the respondents. 8. Upon having given my thoughtful consideration to the averments made by learned counsel appearing for the appellants and having minutely perused the judgements of the Trial Court as also the First Appellate Court, I find that the Trial Court clearly fell in error in so far as the grant of relief of injunction against defendant no.1. Admittedly, in terms of revenue record produced by the parties, defendant no.1 Gursharan Singh, husband of the plaintiff-appellant no.1 is not the owner in possession of the suit property. In view of the clear finding of fact that defendant no.1 was not the owner in possession of any part of the suit property, no kind of injunction could have been granted against him. Likewise, during the life time of the husband i.e. Gursharan Singh, defendant no.1 a suit for grant of permanent injunction against Pal Singh, defendant no.2, who is the fatherin- law of plaintiff-appellant no.1 was also not maintainable. Not even an iota of evidence has been led to prove that the suit property in the hands of defendant no.2 Pal Singh was ancestral property. Not even an iota of evidence has been led to prove that the suit property in the hands of defendant no.2 Pal Singh was ancestral property. 9. Even if, it was to be presumed that the suit property was indeed ancestral property, the question as regards the right of a coparcener to seek injunction restraining a Karta from alienating coparcenary property has been considered by the Hon’ble Apex Court in case of Sunil Kumar and another v. Ram Parkash and others reported as AIR 1988 S.C 576 and it had been held in the following terms:- “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. Sub section (h) of Section 38 of Specific Relief Act bars the grant of such an injunction in the suit. Secondly, the plaintiffrespondents 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 antecedents 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. 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 bonafide 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.” 10. It is, thus, well settled that no injunction at the hands of a coparcener can be issued against the Karta of a Joint Hindu Family restraining him from alienating the coparcenary property. Even though, a coparcener would have an interest in the coparcenary property by birth but he would not be entitled to separate possession of the same unless a partition takes places. The Karta of a Joint Hindu Family would certainly have a right to manage the Joint Hindu Family property and such right would include the right to sell or mortgage ancestral property, if, the legal necessity so arises. A coparcener would also have a remedy to challenge the alienation of coparcenary property on the ground that the same was not for any legal necessity or was not an act of good management. 11. For the reasons referred above, I find no error in the conclusions and findings recorded by the First Appellate Court in accepting the appeals filed by the defendants/respondents herein and in having dismissed the suit for permanent injunction filed by the plaintiffs-appellants. 12. No question of law much less a substantial question of law arises for consideration in the present second appeal and the same is, accordingly, dismissed. Appeal dismissed. ------------------