The judgment establishes the principle that a 'Karta' cannot be restrained from alienating joint family property for legal necessity.

JUDGMENT :

K.R. Mohapatra, J.

This appeal arises from order dated 13.01.2015 passed by the learned 1st Additional Civil Judge, Cuttack in I.A. No. 45 of 2013, in which parties to the suit, i.e., C.S. No.43 of 2013 were directed to maintain status quo in respect of the schedule properties of the I.A. until further orders.

2. The plaintiffs (respondents herein) filed Civil Suit bearing CS No.43 of 2013 for a preliminary decree of partition, permanent injunction to restrain the defendants (appellants herein) from entering upon the suit property and undertaking any kind of construction thereon and from alienating any part thereof or creating any charge over the suit property in any manner.

3. The suit property relates to Khata No.3, Plot No.410, Mouza: Cuttack Sahar Unit No.10, Tahasil: Cuttack Sadar, measuring an area of Ac.0.159 decimal from out of total area of Ac.0.714 decimal. Plaintiffs’ case in brief is that suit schedule ‘B’ property is the ancestral property of the plaintiffs and stands recorded in the name of their grandfather, namely, late A.N.Singhdeo in the ROR published in the year 1983. Said A.N.Singhdeo died on 01.12.2003 leaving behind his widow, one son, namely, Kishore Chandra Singhdeo and three daughters, namely, Smt. Asha Devi, Smt. Ratna Devi and Smt. Saidarshini Devi. On 24.12.2004, the daughters of late A.N.Singhdeo relinquished their interest over the ancestral properties including the suit land. Plaintiffs are the minor daughters of late Kishore Chandra Deo and Nandini Devi (defendant No.1). Said K.C. Deo is now dead. No partition by metes and bound has taken place allotting definite share to the plaintiffs. When the matter stood thus, defendant No.1, namely, Nandini Devi in collusion with defendants 2 to 4 (appellants herein) executed a Power of Attorney in favour of defendant No.4. By virtue of the said Power of Attorney, defendant No.4 sold the entire suit property to defendant No.2 vide RSD No.1350 of 2011. Such sale is prejudicial to the interest of the plaintiffs and not binding on them. Consequently, defendants 2 to 4 having no right, title or interest in the suit property are trying to construct a multi-storied building over the same and are negotiating with the intending purchasers for sale of flats proposed to be constructed thereon. Thus, the plaintiffs being represented by their maternal uncle, Balbant Singh filed the suit for aforesaid relief.

Along with the plaint, the plaintiffs filed IA No.45 of 2013 with a prayer to restrain the defendants 2 to 4 (appellants herein) from entering upon the suit property and undertaking any kind of construction thereon. They also prayed for restraining the said defendants from alienating or creating any charge over the suit property in any manner till disposal of the suit.

4. Defendants 2 to 4 (appellants herein) filed their objection stating, inter alia that the suit property being ancestral in nature stood recorded in the name of late A.N.Singhdeo. After his death, late K.Ch. Deo and his widowed mother became the owners of the suit land. On the death of late K.Ch. Deo and the widow of late A.N.Singhdeo, the defendant No.1 being ‘Karta’ of the family and natural guardian of the plaintiffs executed a registered Power of Attorney dated 04.11.2010 in favour of defendant No.4 (appellant No.3 herein) for herself as well as on behalf of her minor daughters authorizing him to look after, develop and sell the suit property. Being so authorized, the defendant No.4 sold the suit property to M/s Swastik Builder and Developers Private Limited (defendant No.2) for considerations. The defendants 2 and 3, by virtue of sale took over possession of the suit land and by obtaining financial assistance from bank have constructed sixty numbers of flats for which fifty-two intending purchasers have already paid the money and few sale deeds have also been executed in favour of some of the purchasers. The defendants 2 to 4 further contended that defendant No.1 had sold the suit land in