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IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
D.D. Sinha, J.
Ramesh s/o Damodhar Deshmukh ..... Applicant.
Versus
Damodhar s/o Domaji Deshmukh others..... Non-applicants.
Civil Revision Application No. 94 of 1998, decided on 10-7-1998.
Advocates appeared :
Anand Parchure, for the applicant.
J.T. Gilda, for the non-applicant No. 1. Non-applicant Nos. 2 and 3 served.
Hindu Law - Joint family property-Karta of family executing agreement of sale in respect of a plot with construction thereon-A coparcener objecting to this and seeking injunction against sale-Karta not required to consult other members of family for purpose of sale-Only requirement is that sale must be for legal necessity or for benefit of estate-Coparcener has no right to interfere.-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 Court 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 Court to appreciate 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 iso 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 meting the antecedent debts.
Joint family property-It is not the rule of law that Karta of joint family 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 joint family property is made by the Karta, it should be for legal necessity or benefit of the estate or for meeting the antecedent debts. If it is so made, coparcener cannot move the Court for grant of injunction restraining the Karta from alienating the coparcener property especially when alienation is at the stage of agreement of sale only and injunction would cause irreparable loss to the Karta.- The applicant/ original plaintiff filed regular civil suit 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, was illegal and not binding on any member of the joint family. The suit was also for permanent injunction restraining non-applicant defendant No. 1 from evicting the plaintiff and his wife and child from the residential place. The applicant had also filed an application for temporary injunction before the trial Court. The trial Court partly allowed the application had the non-applicant No.1 was restained from selling the suit house to other defendants or anybody else pending civil suit. The District Judge by, order dated 25.9.1997 allowed the appeal and set aside the order dated 31.8.1996 passed by the trial Court. In revision application challenging the order was filed.
Held, that the applicant was the son of non-applicant No. 1 from his first wife. It was not disputed that the applicant was not in actual possession of the suit property though as a coparcener he had a joint interest in the same. It was an admitted position that the applicant was not put in joint possession with his father, i.e. non-applicant No.1 and step brother who was also a coparcener. It was also not disputed that the proposed alienation by non-applicant. No.1 was at the stage of agreement of sale only and same was 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. 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 binding 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. The contention raised by the applicant that it was 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 was not tenable. It is not 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, 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 by 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, should be for the legal necessity or benefit of the estate or for meeting the antecedent debts. The coparcener does not have a right to interfere with the act of management of the family affairs and, therefore, he cannot move the Court to grant relief of injunction restraining the Karta from alienating the coparcener property. The coparcener only has a right to claim share in the joint family estate free from unnecessary and unwanted encumbrances. In the circumstances, it was not possible to hold at this stage that the applicant had 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 in granted. Hence, the findings arrived at by lower appellate Court were just and proper ~d same are sustainable in law. AIR 1988 SC 576-Relied on.
Mitakshara-Joint family Father as Karta alienates property for legal necessity-Son acquires interest in ancestral property by birth and thus a coparcener like father -But said alienation by Karta binding on son and not entitled to separate possession and injunction against Karta.-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 Court 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 Court to appreciate the contention that it is incumbent on the Karta to establish before coparceners prior to alienating property to the joint Hindu family that the same is for the benefit of the estate. It is undisputedly true that if {1lienation 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 or the legal necessity or benefit of the estate for meeting the antecedent debts.
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 t
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