- (1.) Challenge in the present revision petition, filed by the petitioner-defendant No. 1, is to the order dated 22.08.2012 (Annexure P6), whereby the application filed by him for treating the issue regarding the suit being not maintainable as a preliminary issue, has been dismissed by the Addl. Civil Judge (Sr. Divn.) Dasuya by holding that the plaintiff should led further evidence since the plaintiff has alleged that the sale deed is without legal necessity and therefore, he was at liberty to challenge the sale deed. Counsel for the petitioner has placed reliance upon the judgment of this Court in Bhagat Singh v. Balihar Singh & others, 2008 150 PunLR 754 to contend that the suit filed was not maintainable since the karta was alive and therefore, during his lifetime, the alienation could not be challenged. Reliance has also been placed upon the judgment rendered in Raghubir Singh v. Dalip Singh & another, 2004 137 PunLR 599 wherein it was held that the suit for joint possession was not maintainable during the lifetime of the father.
(2.) A perusal of the paperbook would go on to show that the suit, filed by the plaintiff/respondent, who is the minor son of the petitioner-Mohinder Singh, defendant No. 1 is for declaration that the plaintiff was the joint owner to the extent of 1/3rd share of the land, being joint Hindu coparcenary property along with the other defendants namely Tarsem Singh, brother of his father. The sale deeds dated 13.07.2007 and 16.07.2007, in favour of defendant No. 2, Tarsem Singh, executed by his father, late Joginder Singh and the grandfather of the plaintiff, was challenged, accordingly, being not legal, without necessity, without consideration and against the interests of the joint Hindu family property. The suit was defended by the present petitioner on the ground that his brother had purchased the suit land from his father vide the sale deeds which were valid and legal for consideration and the sales were effective. The defendant No. 2, on the other hand, also took a similar plea. After the framing of issues, the application was filed for treating the issue No. 4 regarding the maintainability of the suit as a preliminary issue. The said application was opposed by the plaintiff-respondent on the ground that if there was alienation without legal necessity and which is against the interests of the joint Hindu property, the suit was maintainable. The Trial Court dismissed the application, as noticed above and came to the conclusion that the judgment rendered in Raghubir Singh's case was not applicable in the facts and circumstances of the case and since it is a mixed question of law and fact. Learned Senior Counsel for respondent No. 1, on the other hand, has supported the impugned order by placing reliance upon the judgments of the Apex Court in Sunil Kumar & another v. Ram Parkash & others, 1988 2 SCC 77 and Subhod Kumar v. Bhagwant Namdeorao Mehetre & others, 2007 10 SCC 571 and also two judgments of this Court in Sital Singh v. Jamna Bai & others, 2004 138 PunLR 565 and Surinder Kaur & others v. Gursharan Singh & another, 2012 166 PunLR 317.
(3.) After hearing counsel for the parties, this Court is of the opinion that there is no merit in the present revision petition, on two accounts; firstly, admittedly, the property has already been alienated by the grandfather of the plaintiff to one of his sons, defendant No. 2. The sale deeds dated 13.07.2007 and 16.07.2007 are subject matter of challenge. The grandfather of the plaintiff expired on 25/26.11.2007 and the suit had been filed on 21.11.2007. The title of the property has already changed hands and the argument that the father of the plaintiff was still alive and therefore, he did not have a right to seek injunction during the lifetime of his father, is without any basis. The alienation has taken place and therefore, the suit was maintainable, in view of the judgment of the Apex Court rendered in Sunil Kumar's case wherein it was held that there was restriction to a coparcenary to file a suit for injunction but an exception had been made that once the alienation takes place then it could be challenged on the ground of lack of legal necessity. In the present case, as noticed above, a specific challenge has been laid on account of lack of consideration and there being no legal necessity. Relevant observations in Sunil Kumar's case read as under: "23. The legal position of karta or manager has been succinctly summarised in the Mayne's Hindu Law (12th Ed. 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 Hanuman Parshad v. Mt. Babooee, 1856 6 MIA 393. There it was observed at p. 423: "The 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 ill 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 Courts 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 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. Nor the right to obstruct alienation could 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 for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property.";