A coparcenar's right to challenge an unauthorized alienation of ancestral property by the Karta is an independent personal right acquired by birth, which is not barred by res judicata due to prior unsuccessful litigation by the father unless the son was represented in that litigation.

VIRINDER AGGARWAL, J

1. The present Regular Second Appeal has been preferred by the appellant–plaintiff, being aggrieved by the judgment and decree dated 11.08.1995 passed by the learned First Appellate Court whereby the appeal filed by the respondents-defendants was allowed and the well-reasoned judgment and decree dated 14.06.1989 passed by the learned Trial Court decreeing the suit of the plaintiff was set aside.

Background Facts

2. The appellant-plaintiff, Makhan Singh, a minor suing through his mother as next friend, instituted the present suit for declaration to the effect that the land along with the residential house (fully detailed in the headnote of the plaint) is ancestral coparcenary joint Hindu family property in the hands of defendant no. 1 as karta and plaintiff is owner in possession of the same as coparcenar. It was further prayed that the entries in the Jamabandi showing defendants No.2 to 6 as owners are illegal, be declared as null and void, and therefore not binding upon the plaintiff’s share. A consequential relief of permanent injunction restraining the defendant no. 2 to 7 from alienating the suit land and house and from forceful dispossession of the plaintiff except in the due course of law.

3. It was pleaded that the property in dispute descended from the common ancestor and retained its character as ancestral coparcenary property. The genealogy forming the basis of the claim is as under:

Uttam Singh (common ancestor)

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Ram Singh

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Piara Singh (defendant No.1)

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Avtar Singh (defendant No.8)

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Makhan Singh (plaintiff)

On the strength of the aforesaid lineage, it was asserted that the plaintiff, being a coparcenar by birth, acquired an interest in the suit property. On the aforesaid foundation, the plaintiff claimed that he was entitled in law to challenge the alienations made by defendant No.1, being the Karta, on the ground that the same were not supported by legal necessity or benefit of estate and, therefore, were not binding upon his share. It was further asserted that such right accrued to the plaintiff independently, by birth, in the coparcenary property, and on that basis, the present suit seeking declaration and consequential injunction is maintainable.

4. Upon notice, the suit was contested by the defendants, who filed a joint written statement raising preliminary as well as substantive objections. It was, inter alia, pleaded that the parties are governed not by Hindu law but by custom applicable to agriculturist Jat Sikhs, under which the holder of the property was competent to alienate the same without being fettered by the restrictions of coparcenary law. On that premise, it was asserted that defendant No.1 Piara Singh was fully competent to execute the impugned alienations, and that the sale deeds in favour of defendants No.2 to 6 were valid, for consideration, and binding upon all concerned. The defendants further denied that the property was coparcenary in nature or that the plaintiff had any enforceable right to challenge the transactions. It was also specifically pleaded that the suit was not maintainable and was liable to be dismissed on account of the bar of res judicata, inasmuch as earlier litigation had been instituted by Avtar Singh, father of the present plaintiff, challenging alienations made by defendant No.1, which stood dismissed up to the High Court. O