Amar Ditta vs Tulsi Ram

S.S. Sodhi, J.—The challenge here is to the ad interim temporary injunction granted to the son restraining his father from alienating the property in suit which was said to be coparcenary property except for the benefit of the family or for legal necessity.

In granting the injunction, the lower appellate court followed the precedent provided by the judgment of Chief Justice Harbans Singh in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Ram Arora AIR 1972 P&H. 143, where it was held that the proposed alienation of Joint Hindu Family property, not for the benefit of the family or for legal necessity, could be restrained by injunction at the instance of any co-parcener. This judgment has, however, since been overruled by the Division Bench in Jujhar Singh v. Giani Talok Singh (1987) 91 P.L.R. 399, where, it was held that a coparcener has no right to maintain a suit for permanent injunction restraining the karta from the proposed alienation of coparcenary and that his right is only to challenge the sale and recover the property after it has come into being. It was further Observed, in this behalf, that legally speaking, unless the alienation is in fact completed, there would be no cause of action for any coparcener to maintain the suit because the right is only to challenge the alienation made and there is no right recognized in law to maintain a suit to prevent the proposed alienation. This view was later specifically approved by the Supreme Court in Sushil Kumar and Anr Vs. Ram Prakash and Ors, .

Such thus being the settled position in law the injunction granted by the lower appellate court cannot be sustained and is accordingly hereby vacated. The judgment of the lower appellate court is thus set aside and this revision petition is hereby accepted. In the circumstances, however, there will be no order as to costs.