Civil Rev. Appln. No. 94 of 1998

10th July, 1998

Petitioner Counsel: Shri. ANAND PARCHURE
Respondent Counsel: Shri. J. T. GILDA

Cases Cited:
AIR 1988 SC 576 [Para 9]

JUDGMENT

JUDGMENT :- Heard Shri Deo, the learned Counsel for the applicant, and Shri Gilda, the learned Counsel for the non-applicant no.1. None appears for the non-applicant nos. 2 and 3, though served.

2. The present applicant/original plaintiff filed Regular Civil Suit No. 40/96 for declaration that the agreement of sale dated 2-2-1996 in between original defendant no.1 and defendant nos. 2 and 3 in respect of joint family property, i.e. house bearing Nos. 80, 80/1 to 80/4 and open space as well as residential house of the plaintiff is illegal and not binding on any member of the joint family. The suit is also for permanent injunction restraining non-applicant/defendant no.1 from evicting the plaintiff and his wife and children from the residential place. The applicant had also filed an application for temporary injunction (Exh.5) before the trial Court and the 2nd Joint Civil Judge, Junior Division vide order dated 31-8-1996 partly allowed the application (Exh.5) and the non-applicant no.1 was restrained from selling the suit house to other defendants or anybody else pending civil suit. The non-applicant no.1 being aggrieved by the above referred order passed by the trial Court, preferred Misc. Civil Appeal No. 71/96. The District Judge vide order dated 25-9-1997 allowed the miscellaneous civil appeal and set aside the order dated 31-8-1996 passed by the trial Court. Hence, the present applicant filed the instant civil revision application challenging propriety and legality of the order dated 25-9-1997 passed by the District Judge.

3. The learned Counsel for the applicant submitted that the applicant is a son of non-applicant no.1 from his first wife. Lata is his real sister and Vinod, Nanu, Sandhya and Chhaya are children of the non-applicant no.1 from his second wife. The name of father of non-applicant no.1 is Domaji and name of mother of non-applicant no.1 is Tulsabai. Domaji had three sons, namely, Rimaji, Damodhar (non-applicant no.1) and Anandrao. The joint family owned plot No. 29, nazul sheet no.22, situated at Mahatma Jyotiba Fule Ward, Bhandara. In front of the said plot, there are two shops and one storeyed residential house. Their numbers as per Municipal record are 80, 80/1 and 80/2. In the front portion of the house, there is open space, which is under use by all. The said house, shops and open place belong to plaintiff/applicant, non-applicant no.1 and other family members and same is an ancestral property, which came to the share of non-applicant no.1 in partition. It is contended by the learned Counsel for the applicant that the non-applicant no.1 has no legal right to alienate or sell the joint family property since there is no legal necessity to sell the same. The learned Counsel submitted that non-applicant no.1 without there being any legal necessity, on 2-2-1996, agreed to sell the open space and residential portion of house of the plaintiff to the present non-applicants/defendants 2 and 3. It is submitted that the proposed sale of the joint family property by the non-applicant no.1 is illegal for want of legal necessity. It is further submitted that the applicant has a strong prima facie case and in case temporary injunction is refused, the applicant would suffer irreparable loss.

4. Shri Gilda, the learned Counsel for the non-applicant no.1, submitted that non-applicant no.1 denied the claim of the plaintiff being a member of joint family and also denied that the house and plot in question are joint family properties. It is further stated that the same is also not in joint possession of all the persons. It is further submitted that the property in question is a self acquired property of the non-applicant no.1, who had purchased it on 31-10-1961 from one Mainabai along with his two brothers and it was partitioned on 1-3-1983 and since then, the non-applicant no.1 and his brothers are holding their respective shares separately. The learned Counsel further submitted that since the property in question is a self acquired property of non-applicant no.1, the application for temporary injunction is not tenable and in the circumstances, if injunction is granted in favour of the applicant, it is the non-applicant no.1, who would suffer irreparable loss, which cannot be compensated in terms of money.

5. The learned Counsel for the non-applicant no.1 alternatively contended that even if it is presumed that the above referred property is a joint family property, as alleged by the applicant, even then the non-applicant no.1 being Karta of the joint family is entitled to alienate the property in question and has also the power to sell or mortgage ancestral property to discharge his antecedent debt. The learned Counsel further submitted that mere agreement of sale by Karta of the joint Hindu family does not create any interest in favour of a stranger unless agreement of sale is completed by executing Sale Deed and till then, the interest of any coparcener in the joint Hindu family property cannot be said to be disturbed. The learned Counsel for the non-applicant no.1 further submitted that the present suit filed by the applicant against the non-applicant no.1 father/karta of the joint family property for permanent injunction restraining him from alienating the house property belonging to joint Hindu family would not be maintainable because the applicant being a coparcener has got remedy of challenging the sale and getting it set aside in a suit after completion of the sale transaction. The learned Counsel for the non-applicant no.1, therefore, submitted that lower appellate Court after taking into consideration the relevant facts and circumstances rightly came to the conclusion that the applicant has not made out a prima facie case nor could establish the fact of irreparable loss and hence, the impugned order is just and proper and sustainable in law.

6. While considering the contentions raised by the learned Counsel for the parties and even if I go by the case put forth by the Counsel for the applicant that the property in question is a joint Hindu family property, whether the non-applicant/original defendant no.1, who is undoubtedly Karta of the joint family, can alienate the property in question for legal necessity or for benefit of the estate ? It is no doubt true that the applicant being a coparcener has interest in the ancestral property. However, he is not entitled to separate possession of the coparcenery estate. It is the Karta, who has to consider the fact of legal necessity and whether it is necessary in the interest of joint family to alienate the property. The Karta is required to decide what is beneficial to the joint family property and how the same can be protected in the interest of joint family. Once it is accepted that Karta of the joint family is vested with the above referred powers, which he has to exercise for the benefit of joint family then it is necessary to consider whether the applicant being a coparcener of the joint Hindu family can legally restrain at this stage the non-applicant/defendant no.1 (Karta) from alienating the property in question.

7. In the instant case, it is not disputed that the applicant is not in actual possession of the suit property though as a coparcener he has a joint interest in the same. It is an admitted position that the applicant is not put in joint possession with his father, i.e. non-applicant no.1 and step brother Vinod, who is also a coparcener. It is also not disputed that the proposed alienation by non-applicant no.1 Damodar is at the stage of agreement of sale only and same is not completed by executing Sale Deed. Therefore, there was no question of giving possession of the suit property belonging to the joint family, to the stranger.

8. It is well settled that in a joint Hindu Mitakshara family, a son acquires by birth, an interest equal to that of his father in the ancestral property and the father being head of the family, is entitled to alienate the joint family property so as to bind the interest of all the coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or meeting the antecedent debt. It is difficult for me to appreciate the contention raised by the learned Counsel for the applicant that it is necessary for the Karta of a joint family to prove before other coparceners of the joint family the legal necessity for the purpose of alienating the property nor it is possible for me to appreciate the contention that it is incumbent on the Karta to establish before coparceners prior to alienating property of the joint Hindu family that the same is for the benefit of the estate. It is undisputedly true that if alienation by Karta of a joint family property is not for legal necessity, the said transaction must fail. However, as stated above, Karta of a joint family may be required to take immediate steps in the interest of joint family or for the purpose of legal necessity, to alienate the property of the joint family. It is no doubt true that the Karta may consult the members of the family and in a given set of circumstances, he may obtain their consent. However, it is not the rule of law that Karta is required to consult other members of the family and obtain their consent for the purpose of alienating the joint family property. The requirement of law is that if alienation of the joint family property is made by the Karta, it should be for the legal necessity or benefit of the estate or for meeting the antecedent debts.

9. In order to consider the above referred contentions raised by the Counsel for the applicant as well as non-applicant no.1, it is necessary to consider the ratio laid down by the Apex Court in the judgment in Sunil Kumar and another Vs. Ram Parkash and others (AIR 1988 SC 576). In para (26) of the above referred judgment, the Apex Court has observed -

"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 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."

The above referred observations of the Apex Court in no uncertain terms, convey that the coparcener does not have a right to interfere with the act of management of the joint family affairs, and, therefore, he cant move the Court to grant relief of injunction restraining the Karta from alienating the coparcenary property. The coparcener only has a right to claim share in the joint family estate free from unnecessary and unwanted encumbrances. In the circumstances of this case, it is not possible to hold at this stage that the applicant has made out a prima facie case for grant of injunction. Similarly, irreparable loss, if any, would be caused to the non-applicant no.1 if injunction as prayed for is granted. Hence, the findings arrived at by lower appellate Court are just and proper and same are sustainable in law. Therefore, civil revision application is dismissed. Interim order, if any, stands vacated. No order as to costs.

Revision dismissed.