Suresh Chand Jain vs Siri Chand Jain
2000 Latest Caselaw 1111 Del

JUDGMENT

Devinder Gupta, J.

1. This appeal is against the order passed on 22.8.2000 by learned Single Judge dismissing the appellant's application (IA.6058/2000) filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure and thereby vacating the ex parte ad interim order of injunction granted on 14.6.2000.

2. The appellant is the son of respondent No. 1 and brother of respondent No. 2 and filed suit for grant of a decree for injunction restraining the defendants from transferring, alienating or parting with, disposing of our collecting rent or in any way interfering with properties bearing Nos. 2739 to 2745, Sushila Mohan Marg, Naya Bazar, Delhi. It was alleged that the property has been purchased out of funds of Joint Hindu Undivided Family in the name of respondent No. 1, the father and the Karta of the Joint Hindu Family. Partition has not taken place till date. The appellant, the respondents with various other members constitute the Joint Hindu Family who own several properties in U.P. also. The property located in Delhi is being looked after by the plaintiff/appellant since long and under an arrangement arrived at between him and respondent No. 1, he was authorised by respondent No. 1 to let out the same. An irrevocable general power of attorney is also alleged to have been executed authorising the appellant to realise the rent. It was alleged that he has also acquired rights over the properties by way of adverse possession and thereby was entitled to exclude the respondents from interfering with his rights to manage the property and to collect its, rent. The defendants were trying to deprive the appellant of the benefit of the property, which necessitated his filing the suit and claiming injunction. Along with the suit an application under Order 39 Rules 1 and 2 C.P.C. was filed. Ad interim injunction, as prayed for, was granted-restraining the respondents from transferring, alienating or parting with the property. The defendants/respondents resisted the suit. Defendant No. 1 denied that it was Joint Hindu Family Property nor was acquired with the aid of Joint funds. Defendants No. 1 claimed the suit property to be his exclusive property having been purchased with individual funds and having been shown as his individual property in Income Tax and Wealth Tax returns as well.

3. Learned Single Judge considering the pleadings of the parties and material available on record came to the conclusion that the plaintiff had failed to establish even a prima facie case for grant of injunction. While vacating the ex parte injunction the application for interim relief was dismissed. Appeal is against the said order.

4. Learned counsel for the appellant has tried to assail the impugned order on merits by contending that the circumstances on record are sufficient to justify raising of a presumption of existence of Joint Hindu Family and thereby to draw an inference that the property must have been acquired with the aid of the Joint Hindu Family Funds since all the members of the family were engaged in different businesses either in partnership or were directors of various companies and as such the appellant is entitled to grant of injunction prayed for. Reliance was placed heavily on a copy of the Will of Sushila Devi Jain, the wife of respondent No. 1 dated 12.3.1979. She described herself to be a member of Hindu Undivided Family consisting of herself, her husband (respondent No. 1), and three sons (which includes the appellant and respondent No. 2). Learned counsel urged that it can be inferred that at least on 12.3.1979 that Joint Hindu Family existed from which a presumption can be raised that the said Joint Hindu Family continued in existence till it is shown that it was disrupted by petition.

5. We may consider the last submission first. The copy of the Will now relied upon and appended to the memorandum of appeal cannot be taken note of by us since it did not form part of the plaint or the documents filed with the plaint. It was not produced before learned Single Judge. There is also no application for adducing additional evidence. The appeal as such has to be decided on the basis of the documents, which formed the record of learned Single Judge.

6. Considering the appellant's case at its highest that only for the purposes of appreciating the arguments and deciding this appeal and not accepting the same to be correct that the suit property is a Joint Hindu Family Property even in that case we are of he view that such a suit for injunction by a son against his father restraining him from alienating the property alleged to be belonging to the Joint Hindu Family will not be maintainable. We are fortified in view of the ratio of decision of the Supreme Court in Sunil Kumar and Anr. v. Ram Parkash and Ors., . It was held that such a suit will not be maintainable because the co-parcener has got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. The Supreme Court further held that a coparcener cannot interfere in the acts of management of the kata. A father apart from being a Karta in addition to the power of management has also power of alienation, transfer, sell or mortgage ancestral property to discharge his antecedent debt. The Court observed:-

"It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the Karta. It would be for the Karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint-family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that a father- Karta in addition to the aforesaid powers of aliemination has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right had interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by Karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are twp distinct rights. One is the right to claim a share in the Joint Family estate free, from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not en titled for it. Therefore, he cannot move the Court to grant relief by injunction restraining the Karta from alienating the coparcenary property."

7. While approving the law laid down by the Punjab and Haryana High Court in Jujhar Singh v. Giani Talok Singh, 1986 Pun LJ 346 about non maintainability of a suit by coparcener restraining the Karta from alienating the property, the Supreme Court further held:-

"The provisions of Section 38 (Specific Relief Act) have to be read along with Section 41. Section 41 provides that an injunction cannot be granted in the cases falling under clauses (a) to (j), Clauses (h) thereunder provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the Karta. He cannot, therefore, move the Court for an injunction restraining the Karta from alienating the coparcenary property."

8. In view of the above, we are of the view that ho interference is called for in the impugned order. The appellant can avail of his remedy, if any, only in case property is alienated and that also not for any legal necessity. Thus we find no force in the appeal, which is hereby dismissed. Interim order vacated. Needless to add that observations made by us are prima facie in nature and only for deciding the appeal. The same will not prejudice the parties in either way on the merits of the main suit.