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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANITA CHAUDHRY, J.
Daljit Kaur Mangat and another - Petitioners
Versus
Surinder Singh Sandhu and another - Respondents
Civil Revision No. 371 of 2015 (O&M)
Decided On : 16-11-2017
It is yet to be proved whether the property was co-parcenary or self acquired. No finding on the nature of the property could be given at the interim stage. Assuming that the property was ancestral even then the suit was not maintainable by a coparcener and the coparcener had an adequate remedy to impeach the alienation. In this position of law the lower Appellate Court had gone wrong in ordering status quo over the property.
(B) Civil Procedure Code, 1908, O.39 R.1 & R.2--Injunction-Co-parcenary Property--It is settled law that a karta of the Joint Hindu Family can alienate the ancestral/co-parcenary property for legal necessity and a coparcener has no right to restrain the karta from alienating the coparcenary property but if the sale is made without legal necessity and it is not for the benefit of the estate, it can be challenged by the coparceners but after the sale is made. (Para 10)
Key Points: - A coparcener cannot move the Court to grant an injunction restraining the karta from alienating co-parcenary property (!) . - A karta can alienate ancestral or co-parcenary property for legal necessity or for the benefit of the estate, and such alienation binds all undivided family members (!) . - The law does not presume validity of the karta's alienation; the alienee must prove legal necessity or reasonable enquiry into such necessity (!) . - A coparcener's right to challenge alienation is limited to impeaching it after the sale, not to obtaining an injunction to prevent it (!) (!) . - Suit for permanent injunction by a coparcener against the karta is not maintainable (!) (!) .
ANITA CHAUDHRY, J.
1. This petition has been filed under Article 227 of the Constitution of India assailing the order dated 5.11.2014 (Annexure P-5) passed by the lower Appellate Court who had set aside the order dated 25.9.2012 (Annexure P-4) passed by the lower Court on the application filed under Order 39 Rule 1 and 2 CPC.
2. The factual matrix as pleaded in the amended plaint is detailed below.
3. The plaintiffs are the sons of Ajaib Singh-defendant No. 1. Defendants No. 2 and 3 are his daughters. The case of the plaintiffs was that the land measuring 106 kanals 6 marlas was recorded in the name of defendant No. 1 and it was Joint Hindu Family property. It was pleaded that the land was ancestral and coparcenary property as defendant No. 1 had inherited it from his father Kartar Singh and Kartar Singh had inherited it from his father Harnam Singh and the plaintiffs had a right in it by birth being coparceners and members of the undivided Hindu Joint Family. It was pleaded that defendant No. 1 is addicted to liquor and under the influence of defendants No. 2 and 3, he executed a transfer deed and it was not for legal necessity. It was pleaded that two acres of land was alienated by defendant No. 1 without legal necessity nor it was for betterment of the family. Out of the sale consideration, the defendant had purchased 15 kanals 15 marlas of land on cheap rates which would also become coparcenary property. It was pleaded that all the coparceners are NRIs. It was pleaded that defendant No. 1 transferred over 31 kanals of land in favour of defendants No. 2 and 3 without any consideration or necessity or for the benefit of the coparceners and without their consent. It was pleaded that defendant No. 1 was the karta and he was bound to work for the development of the family and the transfer deed and the sale made by him was void, without consideration and nonest. A decree for joint possession and permanent injunction was also prayed.
4. A joint written statement was filed on behalf of defendants No. 1 to 3 through their attorney and it was pleaded that the suit land was not ancestral or coparcenary and the land had been transferred in the name of Ajaib Singh by his father Kartar Singh through registered sale deed in 1967 and Kartar Singh had categorically mentioned that only Ajaib Singh defendant No. 1 would be the owner of his entire estate and the Will has been admitted by Ajaib Singh's sister namely Gurdev Kaur. It was pleaded that the mutation was rightly sanctioned in his favour and the property was not coparcenary or ancestral. It was pleaded that the land was situated in village Sahnewal-I and Sahnewal-II and was the self acquired property of Kartar Singh and Harnam Singh was not the owner. It was pleaded that the house constructed on the land in dispute was not joint Hindu Family ancestral and coparcenary property and had been constructed from the funds of Ajaib Singh. It was pleaded that Kartar Singh had pledged the land with some villagers. It was pleaded that Ajaib Singh had migrated to Tanzania at the age of 18 and started his new business there. It was pleaded that he had got the land released which had been pledged by his father and sold his business in 1976 and returned to India and constructed the house from his funds and provided best education to his sons and settled them in Australia and provided them funds to purchase their houses. It was pleaded that Jaswant Kaur wife of Ajaib Singh was a necessary party. It was pleaded that Ajaib Singh was the exclusive owner and had transferred the land to his two daughters. It was pleaded that defendant No. 1 along with his wife had returned to India and were settled in Chandigarh but due to their illness, the daughters took them to U.K. as the plaintiffs had refused to take care of them. It was pleaded that now defendant No. 1 and his wife were living in Chandigarh while the plaintiffs were living in Australia. It was denied that the property was Joint Hindu Family
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