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2012(2) LAW HERALD (P&H) 1465
IN THE HIGH COURT OF PUNJAB & HARYANA
Before
The Hon’ble Mr. Justice Tejinder Singh Dhindsa
RSA No. 2371 of 2011(O&M)
Surinder Kaur & Ors.
v.
Gursharan Singh & Anr.
{Decision on 22/02/2012}
Every though, a coparcener would have an interest in the coparcenary property by birth but he would not be entitled to separate possession of the same unless a partition takes places--The Karta of a Joint Hindu Family would certainly have a right to manage the Joint Hindu Family property and such right would include the right to sell or mortgage ancestral property, if, the legal necessity so arises--A coparcener would also have a remedy to challenge the alienation of coparacenary property on the ground that the same was not for any legal necessity or was not an act of good management. (Para 10)
(B) Specific Relief Act, 1963, S.37--Permanent Injunction--Granted to wife against husband and in laws from alienating property, being copercenary property--Set aside--Held;
No evidence that property was ancestral in hands of father-in-law--Husband was not shown to be owner of property--Moreover, even if property is ancestral, no injunction can be granted against Karta.
Mr. Tejinder Singh Dhindsa, J.: - The suit for permanent injunction filed by the plaintiffs against the defendants was decreed in their favour by the Trial Court vide judgement dated 19.8.2010. Separate civil appeals were filed by the defendants against the judgement and vide common impugned judgement dated 22.2.2011, passed by the Additional District Judge, Fast Track Court, Ropar the appeals have been allowed and the suit of the plaintiffs has been dismissed. Resultantly, the plaintiffs-appellants are in second appeal before this Court.
2. Briefly noticed, plaintiff no.1 is the mother of plaintiff no.2 to 4 and was married to defendant no.1 on 4.5.1990. Apparently, the marriage between the parties did not work well and it was stated that plaintiff no.1 along with her children was turned out of the matrimonial house on 16.7.1998 and since then the plaintiffs had been residing with the father of plaintiff no.1. It was stated that plaintiff no.1 had filed an application under Section 125 Cr.P.C and an amount of Rs.1300/- per month had been fixed towards maintenance allowance. Defendant no.1 was stated to be working in Sugar Mill, Morinda. Defendant no.2 is the father of defendant no.1 and it was pleaded that there was ancestral property which was to be inherited by defendant no.1 as per his share in the property. It is pleaded that plaintiffs no. 2 to 4 have legal right in such property, they being the daughters and sons of defendant no.1. As the defendants were threatening to alienate the property as such a suit for permanent injunction had been instituted.
3. The defendants contested the suit in terms of filing separate written statements. Defendant no.1 admitted the factum of marriage with plaintiff no.1 and the birth of plaintiffs no.2 to 4 was also admitted. It was denied that the property in dispute was ancestral property and it was stated that it was defendant no.2, who was the owner in possession of the suit property. Defendant no.2, father of defendant no.1 also filed a written statement on identical lines.
4. Based on the pleadings, the parties went to trial on the following issues:-
“1. Whether the plaintiffs are entitled to the injunction prayed for?OPP.
2. Whether the suit is not maintainable in the present form?OPD.
3. Relief.”
5. The Trial Court upon having heard respective counsel for the parties and having scanned the evidence led on record, decreed the suit of the plaintiffs in their favour for the grant of relief of permanent injunction restraining the defendants from selling, mortgaging and transferring in any manner the suit property. Defendants no.1 and 2 filed separate civil appeals against the impugned judgement and decree dated 19.8.2010 passed by the Trial Court and vide common impugned judgement dated 22.2.2011 the Additional District Judge, Fast Track Court, Ropar has accepted the appeals and dismissed the suit of the plaintiffs.
6. I have heard Mr. Anil Kumar Garg, learned counsel for the plaintiffs-appellants at length.
7. It was argued that the Lower Appellate Court has erred in reversing the well reasoned findings of the Trial Court. Learned counsel would further contend that the respondents were liable to maintain the plaintiffs-appellants and the appellants have a right to create a charge over the property belonging to the respondents.
8. Upon having given my thoughtful consideration to the averments made by learned counsel appearing for the appellants and having minutely perused the judgements of the Trial Court as also the First Appellate Court, I find that the Trial Court clearly fell in error in so far as the grant of relief of injunction against defendant no.1. Admittedly, in terms of revenue record produced by the parties, defendant no.1 Gursharan Singh, husband of the plaintiff-appellant no.1 is not the owner in possession of the suit property. In view of the clear finding of fact that defendant no.1 was not the owner in possession of any part of the suit property, no kind of
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