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Ghasitu and ors. Vs. Sodhan Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1916All322; 32Ind.Cas.690
AppellantGhasitu and ors.
RespondentSodhan Singh
Excerpt:
.....is necessary for one of several co-sharers who objects to the use by the other co-sharers of the joint property, and seeks to restrain them by injunction from making a wrongful use of such joint property, to show not only that he objects, but also that he is suffering or is likely to suffer substantial injury by the user of which he complains. there is further no dispute that he does not jose this right so long as he comes to the court, or takes steps to prevent the wrongful user, in good time. 2. the question is, whether even if he comes in good time and shows his want of consent, he may not lose his remedy unless he proves some substantial injury. i confess that i do not like the proposition. an owner of property in most cases is the best judge of what is good or not for his own..........is necessary for one of several co-sharers who objects to the use by the other co-sharers of the joint property, and seeks to restrain them by injunction from making a wrongful use of such joint property, to show not only that he objects, but also that he is suffering or is likely to suffer substantial injury by the user of which he complains. there is no dispute about the general principle, which has been affirmed over and over again, that one joint owner has no right to deal with the joint property otherwise than with the consent of the other joint owners. there is also no dispute that if the injury is substantial, a joint owner is entitled to the ordinary remedy by way of injunction to have the property restored to its former condition. there is further no dispute that he does not.....
Judgment:

Walsh, J.

1. This case has raised a very interesting discussion. The point argued before me affects only one portion of the property in dispute. But inasmuch as I find myself unable to interfere with the decision of the Court below, it is not necessary for me to go in detail into all the questions in the case. Mr. Abdul Raoof, on behalf of the appellants, in a very clear and interesting argument, raised one distinct point namely, whether it is necessary for one of several co-sharers who objects to the use by the other co-sharers of the joint property, and seeks to restrain them by injunction from making a wrongful use of such joint property, to show not only that he objects, but also that he is suffering or is likely to suffer substantial injury by the user of which he complains. There is no dispute about the general principle, which has been affirmed over and over again, that one joint owner has no right to deal with the joint property otherwise than with the consent of the other joint owners. There is also no dispute that if the injury is substantial, a joint owner is entitled to the ordinary remedy by way of injunction to have the property restored to its former condition. There is further no dispute that he does not Jose this right so long as he comes to the Court, or takes steps to prevent the wrongful user, in good time.

2. The question is, whether even if he comes in good time and shows his want of consent, he may not lose his remedy unless he proves some substantial injury. Put into other language the argument comes to this, that inasmuch as there is a machinery by which joint property may be partitioned, the plaintiff is to be deprived of his remedy for the wrong and thus forced to seek partition which he does not wish to do. I confess that I do not like the proposition. It seems to me dangerous and to open a very wide field for discussion as to what is or is not a substantial injury to a joint owner's holding. I doubt very much whether in a great many cases a Court is in a position to decide that question. An owner of property in most cases is the best judge of what is good or not for his own property, and he has an absolute right to deal with his own legal rights as and when he pleases. But Mr. Abdul Raoof has satisfied me that there are instances certainly in Calcutta in cases decided by two Judges in which it has been clearly held that a joint owner, in order to justify a claim, must show substantial injury to himself, and he has pressed upon me the decision of Mr. Justice Mahmood in this Court in Paras Ram v. Sherjit 9 A. 661; A.W.N. (1887) 253. Had it not been for the Calcutta decisions which he was clearly following, I should have come to the conclusion that Mr. Justice Mahmood did not intend to lay down quite so narrow a principle as that which is contained in the head-note, because at the end of his judgment he directs an issue of fact as to whether the plaintiff has stood by or had been quick in asserting his right. That issue, of course, was quite immaterial to the ruling to which he came in his judgment. I think, however, that so far as I am concerned, this question is placed beyond controversy by a decision by which I am bound, namely, the decision of the Chief Justice and Mr. Justice Burkitt in Najju Khan v. Imtiaz-ud-din 18 A. 115; A.W.N. (1895) 243. That case was referred to two Judges by my brother Banerji on the very ground that the decision of Mr. Justice Mahmood has been questioned. For some reason or another no reference is made in the judgment of the Court, or in the head-note, to Mr. 'Justice Mahmood's decision. In my opinion the decision of Mr. Justice Mahmood most be taken to have been definitely overruled by the decision in Najju Khan v. Imtiaz-ud-din 18 A. 115; A.W.N. (1895) 243. It would appear to follow from this that the law upon this not unimportant point is one thing in Bengal and another thing in these provinces.

3. It is, however, sufficient for me that I am compelled by authority binding on me to dismiss this appeal with costs.


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