I recently handled a
case wherein a son instituted a suit seeking injunction against his father so
as to restrain him from selling the ancestral property that his father
inherited.
So, for making the
things sound simple – let’s take an example. A father inherited certain
properties from Grand Father (his father) after his demise. Now the son files a
civil suit praying for restraining (injunction) his own father from alienating
/ selling the said ancestral properties or from dispossessing him (son) from a particular
portion. The question here is regarding maintainability of the suit for
injunction i.e. whether such reliefs can be granted or not. We must understand
here that the nature of property in this case is a Coparcenary property which
is ancestral in nature as well as a Joint Family Property.
When the person is a
mere coparcener in the property, he has an undivided interest in the property
however no specific portion belongs to him. The portion which he possesses is
so possessed by him on behalf of all co-sharers / coparceners, and therefore
clearly under such a scenario he cannot bring a suit for claiming possession or
injunction against dispossession from a particular part.
Now, as far as
restraining of the father regarding alienation / sale of the ancestral
properties is concerned, the father as Karta of the ancestral / joint family
property is having exclusive right regarding management of the properties and
such management also includes right to alienate / sale the said property.
Indeed, such alienation / sale of the ancestral property without consent of the
all the coparceners needs to be carried out only in cases of legal necessity or
for the benefit of the estate itself. But then it needs to be understood here
that in case Karta eventually sells the property without any legal necessity or
requirement of the estate, then in that case such sale can be set aside however
apprehension of such sale or before such sale actually materializing, no other
coparcener has a right to claim injunction against the Karta.
The scenario may seem
bit unrealistic wherein multiple litigations may arise. However, Hon’ble
Supreme Court in its judgment rendered in the case of “Sushil Kumar & Anr
vs Ram Prakash & Ors 1988 AIR 576” dealt exhaustively with the question and
while agreeing that a Karta has an exclusive right of managing the property
which also includes its alienation / sale gave following reasoning against a
coparcener’s right for injunction:-
“………………….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.”
In the same judgment,
Hon’ble Supreme Court also held that the law as laid down by Punjab &
Haryana High Court in “Jujhar Singh v. Giani Talok Singh, 1986 P.L.J. 346” is
the correct view and then reproduced the following lines from the said judgment
of Punjab & Haryana High Court.
“…………………………..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
ecognized 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 or 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.”
So, therefore in
conclusion the son in our above example does not have right to seek injunction
against his father for restraining him from alienating the ancestral properties
and also does not have right to seek possession of a particular portion of the
ancestral property. A normal question may arise that then what is the solution
– is he (son / coparcener) without any remedy. The answer is that he is not
remedy less and indeed has a remedy – he can either file a partition suit for
claiming his right / portion (which would be the best course according to me)
or he can get the alienation set aside if the same takes place against legal
necessity & against interest of the estate itself.
