Darshan Singh vs Harbhajan Singh

N.K. Kapoor, J.—This is plaintiff''s appeal against the judgment and decree dated 19th December, 1978, passed by the Additional District Judge, Hissar, whereby appeal preferred by the a defendant was accepted and suit of the plaintiff dismissed.

Briefly put, the plaintiff filed suit for perpetual injunction against defendant No. 1 his father, restraining him from alienating the suit land since the same was ancestral property qua the plaintiff. The basis of the suit was that land detailed in the heading of the plaint was inherited by defendant No. 1 on the death of his father and, thus, was ancestral property qua the plaintiff. The plaintiff further averred the defendant No. 1 is addicted to bad habits and indugles in taking liquor, eating opium and gambling and is bend upon alienating the suit land so that he is in a position to spend the amount on his bad habits. It is further stated by the plaintiff that parties are Jat Sikhs and are governed by the Punjab Customary law in the matter of alienation whereby no owner can transfer his ancestral land except for legal necessity.

The defendant put in appearance and controverted the averments made in the plaint. It was averred that suit is against law and facts and is not maintainable.

On the pleadings of the parties, the following issues were framed :

"1. Whether the suit land is ancestral property in the hand of defendant No. 1 ? If so to what effect ? OPP.

Whether the plaintiff is entitled for the injunction as prayed for ? OPP.

Whether the suit is not maintainable in the present form ? OPD.

Relief."

The trial Court decided all the issues in favour of the plaintiff and, resultantly, decreed the suit vide judgment and decree dated 16th May, 1978.

The lower appellate Court affirmed the finding of the trial Court with regard to the nature of the property, i.e. the same is ancestral. However, the lower appellate Court reversed the finding of the trial Court to the effect that the ancestral property cannot be alienated by the respondent holding that a son has merely a right to succeed in respect of the ancestral property held by his father. All the same, there is no bar under the Customary law applicable to the parties preventing them from alienating the suit property for legal necessity. The lower appellate Court came to the conclusion that since the sale effected without legal necessity can be challenged by a male lenial descendant in respect of the ancestral property, injunction granted by the trial Court which bars the respondent from alienating the property even for legal necessary, is per se wrong. The lower appellate court accordingly set aside the judgment and decree of the trial Court thereby dismissing the suit of the plaintiff vide judgment and decree dated 19th December, 1978.

The sole point for consideration in the present appeal is whether an injunction can be granted to prevent the proposed alienation which is alleged to be not for the benefit of the family or for legal necessity. This matter came up for consideration before a Division Bench of this Court in Jujhar Singh v. Giani Tarlok Singh, 1986 PLJ 346 wherein it was held that a karta cannot be restrained from making alienation of the coparcenary property for all times in future as he has legal right to do so if he is of the opinion that there is a genuine need on that it would be for the benefit of the estate. It was further observed that in case it is held that such a suit would be competent, the result would be that each time the manager or the karta wants to sell the property, the coparcener would file a suit which may take number of years for its disposal and thus the legal necessity or the purpose of the proposed sale which may be a pressing and urgent nature, would in most cases be frustrated by be time the suit is disposed of. This judgment squarely applies to the facts of the present case. The judgment in Jujhar Singh''s case (supra) was cited with approval by the apex Court in Sunil Kumar and another v. Ram Parkash, 1988(2) RRR 288 1988 PLJ 227.

Even otherwise in a suit for permanent injunction under Section 38 of the Specific Relief Act by a coparcener against the father or manager of the Joint Hindu Family property, an injunction cannot be granted as coparcener has got equally efficacious remedy to get the sale set aside and recover the possession of the property. Clause (h) to Section 41 of the Specific Relief Act bars the grant of such an injunction in the suit. The defendant as karta of the Joint Hindu Family has undoubtedly, power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts. The grant of such a relief will have the effect of preventing father permanently from selling/transferring the property even for a genuine legal necessity.

This appeal is thus without merit and is accordingly dismissed. No costs.