1. This revision raises an interesting point.
2. Shiv Kumar, who is petitioner before me, brought a suit against his own father and his two brothers seeking a permanent injunction for restraining them from alienating the property in dispute, which was alleged to be joint Hindu family property. The allegations in the plaint were that in connivance with his two other sons, Dina Nath and Sathya Pal, his father, Mool Chand, was alienating the property in dispute without any valid legal necessity or any benefit of the family and the estate and that the alienation was being effected to cause wrongful loss to the plaintiff.
3. The ancestral nature of the property was denied by the father, who claimed that the property was his self-acquired. Nothing, however, seem to have been said by him to the effect that he was alienating the property for legal necessity.
4. A temporary injunction was also claimed by the plaintiff preventing his father and his brothers from alienating the property during the pendency of the suit. This was granted by the trial Court, but the lower appellate Court, apart from going into the prima facie merits of the case, whether the property was ancestral or not, observed that according to Hindu Law, as modified by custom in Punjab, a son is not entitled to seek partition of the joint family property during the lifetime of his father and that, consequently, a son has no right whatever to prevent his father from alienating the joint Hindu family property and the other remedy available to him is that, after the alienation, he can bring a suit challenging the alienation on the ground that the same is not binding on the family, being not for legal necessity. In view of the above, he vacated the injunction order and the plaintiff has filed this revision.
5. So far as the question of ancestral nature of the property is concerned, that is a disputed question of fact, which cannot be gone into at this early stage of the suit and I would not like to make any observation regarding that.
6. The question for determination is, whether, if the property is a joint Hindu family property, a son being a coparcener, is entitled to prevent the manager or the Karta of the family, who may happen to be his father, from alienating the property without any legal necessity and thus depriving the family and particularly the plaintiff-son from the enjoyment of the joint Hindu family property. The case was heard yesterday and was adjourned to enable the counsel to look into this matter.
7. So far as the right of the Karta is concerned, it is well established that he can alienate the joint Hindu family property only for legal necessity and for the benefit of the estate. If the Karta happens to be a father, then as observed in paragraph 256 of Mulla's Hindu law at page 290, he has the power to 'sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes'. The author then goes on to say that 'except as aforesaid, a father has no greater power over coparcenary property that any other manager, that is to say, he cannot alienate coparcenary property except for legal necessity or for the benefit of the family.'
8. That being the case, the only point for determination is that, if the Karta tries to alienate the property not for legal necessity, can he be restrained by the other coparceners or the other coparceners must watch and let the Karta part with the property be sale, mortgage or otherwise and bring a suit thereafter challenging such an alienation.
9. Apart from any law, common sense should dictate that if an act of the Karta is illegal, according to the law by which he is governed, and if the coparceners come to know of the contemplated act, they should be in a position to prevent him from doing it and thus save an innocent alienee from further litigation and it could not possibly be the law that they must wait till the transaction is complete and then take steps to get back the property.
10. N. R. Raghavacharia in his treatise on Hindu Law, Sixth Edition, in paragraph 269, at page 298, specifically deals with this topic. The heading is 'Right to restrain improper acts' and it runs as follows:--
'A coparcener who does any act which is either illegal or improper and prejudicial to the joint interests or enjoyment can be restrained from such act by an injunction at the instance of the other coparceners. In suit for an injunction as between members of a coparcenary with reference to joint family property, the exercise of the Court's jurisdiction is limited to acts of waste, illegitimate use of the family property or acts amounting to ouster..........................'
11. In Anant Ramrao v. Balvant (1895) ILR 19 Bom 269, it was observed as follows:--
'In dispute between members of a joint Hindu family with respect to joint property, the exercise of the Court's jurisdiction to grant relief by injunction should be confined to acts of waste, illegitimate use of the family property, or acts amounting to ouster.'
In that case, the question was, whether the plaintiff was in the enjoyment of a portion of the house whom the use of which he was being ousted, and for that matter the case was sent back to the district Court for giving a proper finding. Be that as it may, the fact is that a Court can grant an injunction where one of the coparceners by his wrongful act tries to waste the property, or makes illegitimate use of the same or acts in a way which amounts to ouster. It goes without saying that if a coparcener sells property, without any legal necessity and which he is not authorised to do under the law, he is certainly ousting the other coparceners.
12. In paragraph 306, at page 351, of the Raghavachari's Hindu Law, alienation by a father is particularly dealt with as follows:--
'An alienation by a father of the joint family property neither for family necessity nor for his antecedent debt has the same effect as that of an alienation by a coparcener who is neither a manager nor a father of a joint family.'
13. In view of the above, I have no hesitation in holding that in a proper case, i.e., where the property is a joint Hindu family property (assuming it is proved by the plaintiff) and the proposed alienation is not for the benefit of the family or for legal necessity, any of the coparceners can prevent such an illegal act by bringing a suit for injunction.
14. For the aforesaid reasons, I find that the judgment and the decree of the lower appellate Court, proceeded on an altogether wrong view of the law leading to failure to exercise the jurisdiction. I, therefore, accept this revision with costs, set aside the order of the lower appellate Court and restore that of the trial Court. Intimation will be sent to the Court below.
15. Revision allowed.