- (1.) The petitioner filed a suit for partition in respect of the disputed property claiming 1/24th share in the same. He also claimed a declaration that the sale deed executed by respondents Nos. 8 to 18 (defendants Nos. 1 to 11 in the suit) executed in favour of respondent Nos. 2 to 7 (defendant Nos. 12 to 17 in the suit) be declared null and void, and a prohibitory injunction be issued against the defendants restraining them from interfering with the plaintiffs' possession or raising any construction and changing the nature of the land. Petitioner's case was that the disputed property belonged to his paternal grand father Chittar Mal, who prior to his death in 1960 had executed a will in favour of his wife Smt. Kundania by which he bequeathed the aforesaid property to her. Smt. Kundania died in 1975, and it is alleged that thereafter the property which was initially self-acquired property of Chittar Mal fell in the hotch pot of the joint Hindu family and the petitioner got 1/24th share in the same. The petitioner has alleged that he has resided in the said property. In 1986 came to know that the respondents Nos. 2 to 7 have executed a sale deed in favour of respondents Nos. 8 to 18. It is alleged that on 30-5-87 the defendants by exercising coercion have got the petitioner's signature on an agreement to sell his share in the property, and the petitioner has filed the suit in which he also prayed for interim injunction. The prayer for interim injunction was granted by the Civil Judge by his order dated 2-11-91 (Annexure 2 to the writ petition), but in appeal the learned District Judge reversed the said order and rejected the prayer for injunction vide his order dated 27-11-1991 (Annexure 3 to the writ petition) aggrieved the petitioner has filed this writ petition.
(2.) Counter and rejoinder affidavits have been filed in this case and I have heard the learned counsel for the parties, and I am proceeding to dispose of this case finally.
(3.) Admittedly the suit in which the temporary injunction has been rejected by the appellate Court is still pending before the trial Court. I am of the opinion that this is not a fit case for interference under Article 226 of the Constitution of India for several reasons :- 1. It is admitted that the petitioner has himself executed an agreement to sell the property to the defendants vide sale deed 30-5-87. A person who has executed an agreement to sell, but who subsequently turns around and refuses to sell is in my opinion not entitled to the discretionary relief under Article 226 of the Constitution of India. No doubt a suit for specific performance being suit No. 267 of 1991 is pending before the IVth Additional District Judge, Aligarh, but I am not inclined to exercise my discretion in favour of a person who does not abide by his agreement. 2. It seems to be prima facie evident that the petitioner has no share in the property in question. Admittedly the property belonged originally to Chittar Mal, the petitioner's paternal grandfather. Chittar Mal bequeathed his property to his wife Smt. Kundania who became the owner of it after her husband's death. After the death of Smt. Kundania in 1975 the petitioner's father got a share in the property as an heir. The petitioner's father is admittedly still alive, and he inherited his share not from his father Chittar Mal but from his mother Smt. Kundania. As laid down in Mulla's Hindu Law, property inherited from the mother does not become ancestral property. Hence the nature of the property in the hands of the petitioner's father was separate property and not ancestral property. There is no averment in the petitioner's affidavit (Annexure 1) that the petitioner's father threw his share of the property inherited from Smt. Kundania into the common stock of the joint family. Hence it remained the separate property of the petitioner's father. Since the petitioner's father is alive, the petitioner has no share in the said property. As such, prima facie he is not entitled to any injunction. 3. Even assuming that the petitioner has,, got 1/24th share, in my opinion, such a person is not entitled to the discretionary relief either of injunction or under Article 226 of the Constitution because that would make the family suffer just because of one person. Hence irrespective of the legal position also I am not inclined to exercise my discretion in favour of such a person who creates obstructions for the rest of the family.;