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2017 DIGILAW 2738 (PNJ)

Daljit Kaur Mangat v. Surinder Singh Sandhu

2017-11-16

ANITA CHAUDHRY

body2017
JUDGMENT : ANITA CHAUDHRY, J. 1. This petition has been filed under Article 227 of the Constitution of India assailing the order dated 5.11.2014 (Annexure P-5) passed by the lower Appellate Court who had set aside the order dated 25.9.2012 (Annexure P-4) passed by the lower Court on the application filed under Order 39 Rule 1 and 2 CPC. 2. The factual matrix as pleaded in the amended plaint is detailed below. 3. The plaintiffs are the sons of Ajaib Singh-defendant No. 1. Defendants No. 2 and 3 are his daughters. The case of the plaintiffs was that the land measuring 106 kanals 6 marlas was recorded in the name of defendant No. 1 and it was Joint Hindu Family property. It was pleaded that the land was ancestral and coparcenary property as defendant No. 1 had inherited it from his father Kartar Singh and Kartar Singh had inherited it from his father Harnam Singh and the plaintiffs had a right in it by birth being coparceners and members of the undivided Hindu Joint Family. It was pleaded that defendant No. 1 is addicted to liquor and under the influence of defendants No. 2 and 3, he executed a transfer deed and it was not for legal necessity. It was pleaded that two acres of land was alienated by defendant No. 1 without legal necessity nor it was for betterment of the family. Out of the sale consideration, the defendant had purchased 15 kanals 15 marlas of land on cheap rates which would also become coparcenary property. It was pleaded that all the coparceners are NRIs. It was pleaded that defendant No. 1 transferred over 31 kanals of land in favour of defendants No. 2 and 3 without any consideration or necessity or for the benefit of the coparceners and without their consent. It was pleaded that defendant No. 1 was the karta and he was bound to work for the development of the family and the transfer deed and the sale made by him was void, without consideration and nonest. A decree for joint possession and permanent injunction was also prayed. 4. It was pleaded that defendant No. 1 was the karta and he was bound to work for the development of the family and the transfer deed and the sale made by him was void, without consideration and nonest. A decree for joint possession and permanent injunction was also prayed. 4. A joint written statement was filed on behalf of defendants No. 1 to 3 through their attorney and it was pleaded that the suit land was not ancestral or coparcenary and the land had been transferred in the name of Ajaib Singh by his father Kartar Singh through registered sale deed in 1967 and Kartar Singh had categorically mentioned that only Ajaib Singh defendant No. 1 would be the owner of his entire estate and the Will has been admitted by Ajaib Singh's sister namely Gurdev Kaur. It was pleaded that the mutation was rightly sanctioned in his favour and the property was not coparcenary or ancestral. It was pleaded that the land was situated in village Sahnewal-I and Sahnewal-II and was the self acquired property of Kartar Singh and Harnam Singh was not the owner. It was pleaded that the house constructed on the land in dispute was not joint Hindu Family ancestral and coparcenary property and had been constructed from the funds of Ajaib Singh. It was pleaded that Kartar Singh had pledged the land with some villagers. It was pleaded that Ajaib Singh had migrated to Tanzania at the age of 18 and started his new business there. It was pleaded that he had got the land released which had been pledged by his father and sold his business in 1976 and returned to India and constructed the house from his funds and provided best education to his sons and settled them in Australia and provided them funds to purchase their houses. It was pleaded that Jaswant Kaur wife of Ajaib Singh was a necessary party. It was pleaded that Ajaib Singh was the exclusive owner and had transferred the land to his two daughters. It was pleaded that defendant No. 1 along with his wife had returned to India and were settled in Chandigarh but due to their illness, the daughters took them to U.K. as the plaintiffs had refused to take care of them. It was pleaded that Ajaib Singh was the exclusive owner and had transferred the land to his two daughters. It was pleaded that defendant No. 1 along with his wife had returned to India and were settled in Chandigarh but due to their illness, the daughters took them to U.K. as the plaintiffs had refused to take care of them. It was pleaded that now defendant No. 1 and his wife were living in Chandigarh while the plaintiffs were living in Australia. It was denied that the property was Joint Hindu Family property or that the plaintiffs had any right in it by birth. 5. The trial Court heard arguments on the application and dismissed it. It observed that there was a presumption that the property is self acquired and the person who alleges that the property is Joint Hindu Family property is required to prove the same and even if it was presumed that it was Joint Hindu Family property, defendant No. 1 was the karta, then he could not be restrained from alienating the property and the remedy was available and they could challenge the sale and the suit for permanent injunction by a coparcener against the karta was not maintainable. 6. An appeal was preferred by the plaintiffs. The lower Appellate Court observed in para 17 of the order that the plaintiffs had claimed the property to be ancestral, however the defendants were claiming it to be self acquired and the matter could not be concluded that the property was ancestral or self acquired, it allowed the appeal partly and directed the parties to maintain status quo with respect to alienation and possession. 7. Aggrieved by the order passed by the lower Appellate Court, defendants have filed this appeal. 8. I have heard both the sides. 9. The submission on behalf of the petitioners is that the lower Appellate Court was not justified in setting aside the order passed by the lower Court as the property had devolved upon Ajaib Singh from his father through a Will in the presence of other heirs and the trial Court had examined the legal position and had rightly dismissed the application. It was urged that the lower Court had observed that if defendant No. 1 was said to be karta then there could be no injunction restraining him from alienating the property as he could challenge the same after the sale and this position of law has been explained in Sunil Kumar and another versus Ram Parkash reported in AIR 1988 (S.C.) 576 referred to by the lower Court. It was urged that no blanket stay could have been granted and even the lower Appellate Court had stated that the finding regarding the nature of the property could not be decided on that stage. It was urged that the plaintiffs had not impleaded all the legal heirs and Gurdev Kaur has filed another suit. 10. On the other hand the submission was that the jamabandi shows that the property had come down from the great grandfather and the property would be ancestral in the hands of Ajaib Singh and the plaintiffs had a right by birth and there was no legal necessity and Ajaib Singh had died during the pendency of the suit and the order of status quo was rightly granted. 11. It is settled that a karta of the Joint Hindu Family can alienate the ancestral/coparcenary property for legal necessity and a coparcener has no right to restrain the karta from alienating the coparcenary property but if the sale is made without legal necessity and it is not for the benefit of the estate, it can be challenged by the coparceners but after the sale is made. 12. Justice Jagannatha Shetty, agreed with the judgment penned by Justice B.C. Ray in Sunil Kumar's case (supra) but wrote his separate judgment agreeing that the appeal should be dismissed and observed:- “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. Mt. Babooee, 1856 (6) Moo Ind App 393. 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. Mt. 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: 24. 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 Courts 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]. 25. 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]. 25. 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 copercener 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. 26. 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 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 sub-serve 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. 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.” 13. Examining the correctness of the submission made on behalf of the coparceners, the Apex Court observed that the submissions were not sound and a coparcener (if) takes by birth an interest but he is not entitled to separate possession nor his rights are independent of the control of the karta and a coparcener cannot interfere in the acts of management. In para 27, it also observed that a suit for injunction against a karta was not maintainable and a coparcener has a remedy to impeach the alienation made by the karta and approved the judgment of this Court rendered in Jujhar Singh versus Giani Talok Singh, 1986 Pun LJ 346. The observations at page 348 were reproduced and I am quoting the same for ready reference which reads as under:- “If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of. The legal necessity or the purpose of the proposed sale which may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of. Legally speaking unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognised in law to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for preventing waste by a manager or karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning. We are, therefore, of the considered view that a coparcener has no right to maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to challenge the same and to recover the property after it has come into being.” 14. The position as it stands has been distinctly laid. A coparcener cannot move the Court to grant relief of injunction restraining the karta from alienating the coparcenary property. In this Case we are assuming that the property was coparcenary. It is yet to be proved whether the property was coparcenary or self acquired. No finding on the nature of the property could be given at the interim stage. Assuming that the property was ancestral even then the suit was not maintainable by a coparcener and the coparcener had an adequate remedy to impeach the alienation. In this position of law the lower Appellate Court had gone wrong in ordering status quo over the property. 15. From the above discussion on the principle of Hindu Law and in the light of the provisions contained in the Specific Relief Act, the order passed by the lower Appellate Court has to be set aside and is ordered accordingly. 16. The petition is allowed and order of the lower Appellate Court is set aside.