Case Summary
| Citation | Sunil Kumar v. Ram Parkash(1988) 2 SCC 77 |
| Keywords | partition, permanent injuction, karta |
| Facts | A person A as Karta of Joint Hindu family executed an agreement to sell the suit property bearing in Mohalla Qanungaon at Kaithal. Three sons of A instituted a Civil Suit in the court of Sub-Judge, Kaithal for permanent injunction stating inter alia that the said property was joint Hindu family coparcenary property; and that there was no legal necessity for sale of the property nor it was an act of good management to sell the same without the consent of the plaintiffs and without any legal necessity. It was, therefore, prayed that a decree for permanent injunction be passed to restraining him from selling or alienating the property to any person and restrain from proceeding with the suit for specific performance pending in the civil court. |
| Issues | Whether a suit for permanent injunction restraining the karta of the joint Hindu family from alienating the house property belonging to the joint Hindu family in pursuance of the agreement to sell executed already, is maintainable? |
| Contentions | |
| Law Points | Where the Karta is contemplating the transfer of the joint family property for a permitted purpose, as ascertained by him, the coparceners cannot prevent him from transferring this property by seeking a temporary or permanent injunction from the court. Karta of the joint Hindu family has undoubtedly, the 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 the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer. A suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. The suit property was coparcenary property of the joint family consisting of A and his sons. Jai Bhagwan (buyer) has failed to prove that the proposed sale was for legal necessity of the joint family. He has also failed to prove that the intended sale was for benefit of the estate. A being the manager of the family cannot alienate coparcenary property in the absence of those two requirements. The sons could restrain their father from alienating the coparcenary property since the proposed sale was without justification. Karta occupies a position superior to other members. He has greater rights and duties. He must look after the family interests. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties. The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that of principal and agent, or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees. |
| Judgement | Therefore, the Supreme Court held that a suit for permanent injunction by a coparcener to restrain the Karta from alienating joint Hindu family property is not maintainable. |
| Ratio Decidendi & Case Authority |
Full Case Details
RAY, J. – The defendant-Respondent 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 5000 as
earnest money. As Respondent 1 refused to execute the sale deed, Defendant 2, Jai Bhagwan
instituted a Suit No. 570 of 1978 in the court of Sub-Judge, First Class, Kaithal for specific
performance of the agreement to sell and in the alter native for a decree for recovery of Rs
10,000. In the said suit Appellants 1 and 2 and Respondent 11 who are the sons of defendantRespondent 1 made an application for being impleaded. This application, however, was
dismissed. Thereafter the three sons of Defendant 1 as plaintiffs instituted Civil Suit No. 31 of
1982 in the court of Sub-Judge, Second Class, Kaithal for permanent injunction stating inter alia
that the said property was joint Hindu family coparcenary property of the plaintiffs and Defendant
1; that there was no legal necessity for sale of the property nor it was an act of good management
to sell the same to Defendant 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 Defendant 1 restraining him from selling or alienating the property to
Defendant 2 or to any other person and also restraining Defendant 2 from proceeding with the suit
for specific performance pending in the civil court.
2.Defendant 2, Jai Bhagwan since deceased, filed a written statement stating inter alia that
Defendant 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 Defendant 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 evidences on record held that
the house property in question was the ancestral property of the joint Hindu Mitakshara family
and Defendant 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 plaintiffs’ 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
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not for the benefit of the estate. This view of mine is supported by case title Shiv Kumar
v. MoolChand[AIR 1972 P & H 147] 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 2, preferred an appeal being Civil Appeal No. 199/13 of 1984. The lower appellate
court following the decision in Jujhar Singh v. GianiTalokSingh[AIR 1987 P&H 34] held that a
coparcener has no right to maintain a suit for permanent injunction restraining the Manager or
karta from alienating the coparcenary property and the coparcener has the right only to challenge
the alienation of the coparcenary property and recover back the property after alienation has come
into being. The court of appeal below further held:
That Ram Parkash, father of the plaintiffs and karta of the joint coparcenary property
cannot be restrained by way of injunction from alienating the coparcenary property to
Defendant 2. In consequent the appeal is accepted and the judgment and decree of the
trial court under attack are set aside.
5. Against this judgment and decree, the instant appeal on special leave has been preferred by
the appellants i.e. the sons of defendant-Respondent 1, the karta of the joint Hindu family.
6.In this appeal we are called upon to decide the only question whether a suit for permanent
injunction restraining the karta of the joint Hindu family from alienating the house property
belonging to the joint Hindu family in pursuance of the agreement to sell executed already in
favour of the predecessor of the appellants, Jai Bhagwan, since deceased, is maintainable. It is
well settled that in a joint Hindu Mitakshara family, a son acquires by birth an interest equal to
that of the father in ancestral property. The father by reason of his paternal relation and his
position as the head of the family is its Manager and he is entitled to alienate joint family property
so as to bind the interests of both adult and minor coparceners in the property, provided that the
alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent
debt. The power of the Manager of a joint Hindu family to alienate a joint Hindu family property
is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in
Hunoomanpersaud Panday v. MussumatBabooeeMunrajKoonweree[(1856) 6 Moo IA 393]:
The power of a Manager for an infant heir to charge ancestral estate by loan or
mortgage, is, by the Hindu Law, a limited and qualified power, which can only be
exercised rightly by the Manager in a case of need, or for the benefit of the estate. But
where the charge is one that a prudent owner would make in order to benefit the estate, a
bona fide lender is not affected by the precedent mismanagement of the estate. The actual
pressure on the estate, the danger to be averted, or the benefit to be conferred, in the
particular instance, or the criteria to be regarded. If that danger arises from any
misconduct to which the lender has been a party, he cannot take advantage of his own
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wrong to support a charge in his favour against the heir, grounded on a necessity which
his own wrong has helped to cause.
A lender, however, in such circumstances, is bound to inquire into the necessities of
the loan, and to satisfy himself as well as he can, with reference to the parties with whom
he is dealing, that the Manager is acting in the particular instance for the benefit of the
estate. If he does inquire, and acts honestly, the real existence of an alleged and
reasonably-credited necessity is not a condition precedent to the validity of his charge,
which renders him bound to see to the application of the money.
7.At the outset it is to be noticed that 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 the coparcener has got equally efficacious remedy to
get the sale set aside and recover possession of the property. Sub-section ( h) of Section 41 of
Specific Relief Act bars the grant of such an injunction in the suit. Secondly, the plaintiffrespondents brought this suit for permanent injunction restraining their father, Defendant 1, from
selling or alienating the property to Defendant 2 or any other person and also restraining
Defendant 2 from proceeding with the suit for specific performance of the agreement to sell
pending in the civil court. Thus the relief sought for is to restrain by permanent injunction the
karta of the joint Hindu Mitakshara family i.e. Defendant 1 from selling or alienating the house
property in question. Defendant 1 as karta of the joint Hindu family has undoubtedly, the 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 the
father permanently from selling or transferring the suit property belonging to the joint Hindu
Undivided Family even if there is a genuine legal necessity for such transfer. If such a suit for
injunction is held maintainable the effect will be that whenever the father as karta of the joint
Hindu coparcenary property will propose to sell such property owing to a bona fide legal
necessity, any coparcener may come up with such a suit for permanent injunction and the father
will not be able to sell the property for legal necessity until and unless that suit is decided.
8.The judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Ram Arora
wherein it was held that a suit for permanent injunction against the father to restrain him from
alienating the joint Hindu family property was maintainable has been offset by the Division
Bench in Jujhar Singh v. GianiTalok Singh wherein it has been held that a suit for permanent
injunction by a coparcener against the father for restraining him from alienating the house
property belonging to the joint Hindu family for legal necessity was not maintainable because the
coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent
to the completion of the sale. Following this decision the High Court allowed the appeal holding
that the suit was not maintainable reversing the judgment and decree of the trial court. We do not
find any infirmity in the findings arrived at by the High Court.
9.It has, however, been submitted on behalf of the appellant that the High Court should have
held that in appropriate cases where there are acts of waste, a suit for permanent injunction may
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be brought against the karta of the joint Hindu family to restrain him from alienating the property
of the joint Hindu family. This question is not required to be considered as we have already held
that the instant suit for injunction as framed is not maintainable. We, of course, make it clear that
in case of waste or ouster an injunction may be granted against the Manager of the joint Hindu
family at the instance of the coparcener. But nonetheless a blanket injunction restraining
permanently from alienating the property of the joint Hindu family even in the case of legal
necessity, cannot be granted. It further appears that Defendant 1, Ram Parkash entered into the
agreement of sale stating that he is the owner of the suit property. The plaintiff-appellants claim
the suit property as ancestral property and they as coparceners of joint Hindu Mitakshara family
have equal shares with their father in the suit property. The question whether the suit property is
the self-acquired property of the father or it is the ancestral property has to be decided before
granting any relief. The suit being one for permanent injunction, this question cannot be gone into
and decided. It is also pertinent to note in this connection that the case of specific performance of
agreement of sale bearing Suit No. 570 of 1978 had already been decreed on May 11, 1981 by the
Sub-Judge, First Class, Kaithal.
10.For the reasons aforesaid we affirm the judgment and decree made by the High Court and
dismiss the appeal without any order as to costs.
JAGANNATHA SHETTY, J.(concurring) -I agree that this appeal should be dismissed but I
add a few words of my own. The question raised in the appeal is whether interference of the court
could be sought by a coparcener to interdict the karta of Hindu undivided family from alienating
coparcenary property. The question is of considerable importance and there seems to be but little
authority in decided cases.
12.The facts of the case lie in a narrow compass. In February 1978, Ram Parkash entered into
an agreement for sale of certain house property in favour of Jai Bhagwan. The property has been
described in the agreement as self-acquired property of Ram Parkash. It was agreed to be sold for
Rs 21,400. Jai Bhagwan paid Rs 5000 as earnest money on the date of agreement. He promised to
pay the balance on the date of execution of the sale deed. Ram Parkash, however, did not keep up
his promise. He did not execute the sale deed though called upon to do so. Jai Bhagwan instituted
a suit for specific performance of the agreement. In that suit, Rakesh Kumar and his brothers who
are the sons of Ram Parkash wanted to be impleaded as parties to the suit. They wanted to resist
the suit for specific performance. But the court did not permit them. The court said that they were
unnecessary parties to the suit. Being unsuccessful in that attempt, they instituted a suit for
permanent injunction against their father. They wanted the court to restrain their father from
alienating the house property to Jai Bhagwan, or to anybody else. Their case was that the said
house was their coparcenary property and the proposed sale was neither for legal necessity nor for
the benefit of the joint family estate.
13. The suit for injunction was practically tried as a suit for declaration. A lot of evidence was
adduced on various issues including the nature of the suit property. The trial court ultimately
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decreed the suit with the following findings: The suit property was coparcenary property of the
joint family consisting of Ram Parkash and his sons. Jai Bhagwan has failed to prove that the
proposed sale was for legal necessity of the joint family. He has also failed to prove that the
intended sale was for benefit of the estate. Ram Parkash being the manager of the family cannot
alienate coparcenary property in the absence of those two requirements. The sons could restrain
their father from alienating the coparcenary property since the proposed sale was without
justification.
14. Jai Bhagwan died during the pendency of the suit. His wife and children challenged the
decree of the trial court in an appeal before the Additional District Judge, Kurukshetra. By then,
the Punjab and Haryana High Court had declared in Jujhar Singh v. GianiTalokSingh that a suit
for injunction to restrain karta from alienating coparcenary property is not maintainable. The
learned District Judge following the said decision reversed the decree of the trial court and
dismissed the suit. The plaintiff preferred second appeal which was summarily dismissed by the
High Court.
15. The plaintiffs, by special leave, have appealed to this Court. The arguments for the
appellants appear to be attractive and are as follows:
There is no presumption under law that the alienation of joint family property made
by karta is valid. The karta has no arbitrary power to alienate joint family property. He
could do so only for legal necessity or for family benefit. When both the requirements
are wanting in the case, the coparceners need not vainly wait till the transaction is
completed to their detriment. They are entitled to a share in the suit property. They are
interested in preserving the property for the family. They could, therefore, legitimately
move the court for an action against the karta in the nature of a quiatimet.
16. As a preliminary to the consideration of the question urged, it will be necessary to
examine the structure of joint Hindu family, its incidents and the power of karta or Manager
thereof. The status of the undivided Hindu family or the coparcenary is apparently too familiar to
everyone to require discussion. I may, however, refer in laconic details what is just necessary for
determining the question urged in this appeal.
Joint Hindu Family
17. Those who are of individualistic attitude and separate ownership may find it hard to
understand the significance of a Hindu joint family and joint property. But it is there from the
ancient time perhaps, as a social necessity. A Hindu joint family consists of male members
descended lineally from a common male ancestor, together with their mothers, wives or widows
and unmarried daughters. They are bound together by the fundamental principle of sapindaship or
family relationship which is the essential feature of the institution. The cord that knits the
members of the family is not property but the relationship of one another
18. The coparcenary consists of only those persons who have taken by birth an interest in the
property of the holder and who can enforce a partition whenever they like. It is a narrower body
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than joint family. It commences with a common ancestor and includes a holder of joint property
and only those males in his male line who are not removed from him by more than three degrees.
The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that
only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only
males can be coparceners. [See: Hindu Law by N. R. Raghavachariar, 8th Edn., p. 202]
19.In an early case of the Madras High Court in SudarsanamMaistriv.
NarasimhuluMaistri[(1902) ILR 25 Mad 149] BhashyamAyyangar, J. made the following
pregnant observations about the nature of the institution and its incidents at p. 154:
The Mitakshara doctrine of joint family property is founded upon the existence of an
undivided family, as a corporate body (Gan Savant Bal Savant v. Narayan Dhond
Savant and Mayne’s Hindu Law and Usage, 6th Edn., para 270) and the possession of
property by such corporate body. The first requisite therefore is the family unit; and the
possession by it of property is the second requisite. For the present purpose female
members of the family may be left out for consideration and the conception of a Hindu
family is a common male ancestor with his lineal descendants in the male line, and so
long as that family is in its normal condition viz. the undivided state – it forms a
corporate body. Such corporate body, with its heritage, is purely a creature of law and
cannot be created by act of parties, save insofar that, by adoption, a stranger may be
affiliated as a member of that corporate family.
20.Adverting to the nature of the property owned by such a family, learned Judge proceeded
to state at p. 155:
As regards the property of such family, the ‘unobstructed heritage’ devolving on
such family, with its accretions, is owned by the family as a corporate body, and one or
more branches of that family, each forming a corporate body within a larger corporate
body, may possess separate ‘unobstructed heritage’ which, with its accretions, may be
exclusively owned by such branch as a corporate body.
21.This statement of law has been approved by the Supreme Court in BhagwanDayal v.
Reoti Devi [AIR 1962 SC 287].
Managing Member and his Powers
22.In a Hindu family, the karta or Manager occupies a unique position. It is not as if anybody
could become Manager of a joint Hindu family. “As a general rule, the father of a family, if alive,
and in his absence the senior member of the family, is alone entitled to manage the joint family
property.” The Manager occupies a position superior to other members. He has greater rights and
duties. He must look after the family interests. He is entitled to possession of the entire joint
estate. He is also entitled to manage the family properties. In other words, the actual possession
and management of the joint family property must vest in him. He may consult the members of
the family and if necessary take their consent to his action but he is not answerable to every one
of them.
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23. The legal position of karta or Manager has been succinctly summarised in the Mayne’s
Hindu Law(12th Edn., para 318) thus:
318. Manager’s legal position.-The position of a karta or manager is sui generis; the
relation between him and the other members of the family is not that of principal and agent,
or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary
relationship does not involve all the duties which are imposed upon trustees.
24.The managing member or karta has not only the power to manage but also power to
alienate joint family property. The alienation may be either for family necessity or for the benefit
of the estate. Such alienation would bind the interests of all the undivided members of the family
whether they are adults or minors. The oft-quoted decision in this aspect, is that of the Privy
Council in Hunoomanpersaudv. Babooee. There it was observed at p. 423: “That power of the
manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and
qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate.”
This case was that of a mother, managing as guardian for an infant heir. A father who happens to
be the Manager of an undivided Hindu family certainly has greater powers to which I will refer a
little later. Any other manager however, is not having anything less than those stated in the said
case. Therefore, it has been repeatedly held that the principles laid down in that case apply
equally to a father or other coparcener who manages the joint family estate.
Remedies against Alienations
25.Although the power of disposition of joint family property has been conceded to the
Manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the
validity of his transactions. His acts could be questioned in the court of law. The other members
of the family have a right to have the transaction declared void, if not justified. When an
alienation is challenged as being unjustified or illegal it would be for the alienee to prove that
there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence
of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy
himself as to the existence of such necessity. If the alienation is found to be unjustified, then it
would be declared void. Such alienations would be void except to the extent of Manager’s share
in Madras, Bombay and Central Provinces. The purchaser could get only the Manager’s share.
But in other provinces, the purchaser would not get even that much. The entire alienation would
be void. [Mayne’s Hindu Law, 11th Edn., para 396]
26.In the light of these principles, I may now examine the correctness of the contentions
urged in this appeal. The submissions of Mr H.N. Salve, as I understand, proceeded firstly on the
premise that a coparcener has as much interest as that of karta in the coparcenary property.
Second, the right of coparcener in respect of his share in the ancestral property would remain
unimpaired, if the alienation is not for legal necessity or for the benefit of the estate. When these
two rights, are preserved to a coparcener, why should he not prevent the karta from dissipating
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the ancestral property by moving the court? Why should he vainly wait till the purchaser gets title
to the property? This appears to be the line of reasoning adopted by the learned Counsel.
27. I do not think that these submissions are sound. 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 alienation 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 and 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. For the right to
obstruct alienation could not be considered as incidental to the right to challenge the alienation.
These are two 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 entitled to it. Therefore, he cannot move the court to grant relief by injunction
restraining the karta from alienating the coparcenery property.
28. There is one more difficulty for the sustainability of the suit for injunction with which we
are concerned. Temporary injunction can be granted under sub-section (1) of Section 37 of the
Specific Relief Act, 1963. It is regulated by the Code of Civil Procedure, 1908. A decree for
perpetual injunction is made under sub-section (2) of Section 37. Such an injunction can be
granted upon the merits of the suit. The injunction would be to restrain the defendant perpetually
from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38
of the Specific Relief Act governs the grant of perpetual injunction and sub-section (3) thereof,
reads:
When the defendant invades or threatens to invade the plaintiff’s right to, or
enjoyment of, property, the court may grant a perpetual injunction in the following cases,
namely:
(a) Where the defendant is trustee of the property for the plaintiff;
(b) Where there exists no standard for ascertaining the actual damage caused or
likely to be caused, by the invasion;
(c) Where the invasion is such that compensation in money would not afford
adequate relief;
(d) Where the injunction is necessary to prevent a multiplicity of judicial
proceedings.
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29.The provisions of Section 38 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). Clause (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. It seems to
me that the decision of the Punjab and Haryana High Court in Jujhar Singh v. GianiTalok Singh
has correctly laid down the law. There it was observed at p. 348:
If 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 property, the coparcener would file a suit which may
take number of years for its disposal. The legal necessity or the purpose of the proposed
sale which may be of pressing and urgent nature, would in most cases be frustrated by
the time the suit is disposed of. Legally speaking unless the alienation in fact is
completed there would be no cause of action for any coparcener to maintain a suit
because the right is only to challenge the alienation made and there is no right recognised
in law to maintain a suit to prevent the proposed sale. The principle that an injunction can
be granted for preventing waste by a manager or karta obviously would not be applicable
to such a suit because the proposed alienation for an alleged need of the benefit of the
estate cannot be said to be an act of waste by any stretch of reasoning. We are, therefore,
of the considered view that a coparcener has no right to maintain a suit for permanent
injunction restraining the manager or the karta from alienating the coparcenary property
and his right is only to challenge the same and to recover the property after it has come
into being.
30.From the above discussion of the principles of Hindu Law and in the light of the
provisions of the Specific Relief Act, I think, therefore, there ought to be no hesitation on my part
to dismiss this appeal and I dismiss the same with cost.
