A coparcener has no right to maintain a suit for permanent injunction restraining the manager or the Karta from alienating the coparcenary property.

S.P.GOYAL, J.

1. The appellant instituted a suit for permanent injunction restraining the respondent from alienating the house in dispute in any manner alleging that the latter had no right to alienate the same. The suit was dismissed by the trial Court and against its judgement, he went in appeal before the learned Additional District Judge. Along with the appeal, he also moved an application under O.39, Rr. 1 and 2, Civil P.C. for a temporary injunction restraining the respondent from alienating the house in dispute pending appeal which was rejected vide order dt. Feb. 25, 1985. This second appeal has been filed to challenge that order.

2. When the appeal came up for hearing before me in single Bench at the motion stage reliance was placed on a decision of Harbans Singh, C.J. in Shiv Kumar Mool Chand Arora V/s. Mool Chand Jaswant Ram Arora, AIR 1972 Punj and Har 147, for the proposition that ad interim injunction can be granted to prevent the proposed alienation which is not for the benefit of the family or for any legal necessity. As I doubted the correctness of this decision, the appeal was admitted to a Division Bench. This is how we are seized of this matter.

3. It was not disputed by the learned counsel for the appellant that unless a suit for permanent injunction restraining the respondent from alienating coparcenary property was competent it would not be permissible to grant an ad interim injunction as well. Section 38 of the Specific Relief Act governs the grant of perpetual injunctions and the suit like the present one would fall under its Sub-Sec. (3) which reads as under :-

"(3) When the defendant invades or threatens to invade the plaintiff s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases namely : (a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion;

(c) where the invasion is such that compensation in money would not afford adequate relief :

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

The provisions of S.38 are further circumscribed by the provisions of S.41 which lay down that an injunction cannot be granted in the cases enumerated in Cls. (a) to (j). Clause (h) provides that an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding except in case of breach of trust. Apparently the present suit does not fall under any of the clauses of Sub-Sec. (3) of S.38. Not only that even if for arguments sake it may be accepted that it can be maintained under one of those clauses, the grant of injunction would be barred by the said Cl. (h) of S.41 because the aggrieved coparcener has equally efficacious remedy to get the alienation set aside and recover possession of the property.

4. In Shiv Kumar Mool Chand Arora s case (AIR 1972 Punj and Har 147) (supra) the learned Chief Justice for the view that a suit for permanent injunction to restrain the Karta from alienating the property would be competent, relied on the following passage of para 269 of the book on Hindu Law by N.R. Ragavacharia;

"A coparcener who does any act which is either illegal or improper and prejudicial to the joint interests or enjoyment can be restrained from such act by an injunction at the instance of the other coparceners. In suit for an injunction as between members of a coparcenary with reference to joint family property, the exercise of the Court s jurisdiction is limited to acts of waste, illegitimate use of the family property or acts amounting to ouster......................"

For the statement of the law mentioned in the said para, the learned author relied on Ravji V/s. Gangadhar, (1880) ILR 4 Bom 29; Vithoba V/s. Hariba, (1869) 6 Bom HCR 54; Sheopersad V/s. Leela, (1874) 12 Beng LR 188; Gopee Kihhen V/s. Hemchunder, (1870) 13 Suth WR 322; Ganpat