Judgement

RAY, J. :- The defendant-respondent No. 1, Ram Parkash as Karta of joint Hindu family executed on February 7, 1978 an agreement to sell the suit property bearing M.C.K. No. 238/9, in Mohalla Qanungaon at Kaithal for a consideration of Rs. 21,400/- and he received a sum of Rs. 5,000/- as earnest money. As the respondent No. 1 refused to execute the sale deed, the defendant No. 2, Jai Bhagwan instituted a suit No. 570 of 1978 in the court of Sub-Judge, 1st Class, Kaithal for specific performance of the agreement to sell and in the alternative for a decree for recovery of Rs. 10,000/-. In the said suit the appellants Nos. 1 and 2 and the respondent No. 11 who are the sons of defendant-respondent No. 1 made an application for being impleaded. This application, however, was dismissed. Thereafter the 3 sons of defendant No. 1 as plaintiffs instituted Civil Suit No. 31 of 1982 in the court of Sub-Judge, IInd Class, Kaithal for permanent injunction stating inter alia that the said property was joint Hindu Family coparcenary property of the plaintiffs and defendant No. 1; that there was no legal necessity for sale of the property nor it was an act of a good management to sell the same to the defendant No. 2 without the consent of the plaintiffs and without any legal necessity. It was, therefore, prayed that a decree for permanent injunction be passed in favour of the plaintiffs and against the defendant No. 1 restraining him from selling or alienating the property to the defendant No. 2 or to any other person and also restraining defendant No. 2 from proceeding with the suit for specific performance pending in the civil court.

2. The defendant No. 2, Jai Bhagwan since deceased, filed a written statement stating inter alia that the defendant No. 1 disclosed that the suit property was owned by him and that he was in need of money for meeting the expenses of the family including the education expenses of the children and also for the marriage of his daughters. It has also been pleaded that the house in question fetched a very low income from rent and as such the defendant No. 1 who has been residing in Delhi, did not think it profitable to keep the house. It has also been stated that the suit was not maintainable in law and the injunction as prayed for could not be granted.

3. The trial Court after hearing the parties and considering the evidence on record held that the house property in question was the ancestral property of the Joint Hindu Mitakshara Family and the defendant No. 1 who is the father of the plaintiffs was not competent to sell the same except for legal necessity or for the benefit of the estate. Since the plaintiff application for impleading them as party in the suit for specific performance of contract of sale was dismissed the filing of the present suit was the only remedy available to the plaintiffs. The plaintiffs being coparceners having interest in the property, the suit in the present form is maintainable. The Trial Court further held that :-

"It is well settled law that Karta of the joint Hindu family cannot alienate the coparcenary property without legal necessity and coparcener has right to restrain the Karta from alienating the coparcenary property if the sale is without legal necessity and is not for the benefit of the estate. This view of mine is supported by case titled Shiv Kumar v. Mool Chand reported in 1971 Cur LJ 1020) thus, the proposed sale is without any legal necessity and is not for the benefit of the estate, therefore the suit of the plaintiff is decreed with no orders as to costs."

4. Against this judgment and decree the defendants, the legal representatives of the deceased defendant No. 2, preferred an appeal being Civil Appeal No. 199/13 of 1984. The lower appellate court following the decision in Jujhar Singh v. Giani Talok Singh, 1986 Pun LJ 346 held that a coparcener has no right to maintain a suit for permanent injunction restraining the Manager or Karta from alienating the coparcenary