Holding

A coparcener cannot maintain a suit for permanent injunction restraining the Karta from alienating joint Hindu family property; the remedy is limited to challenging the alienation after it is effected.

Summary

Ram Prakash, the Karta of a Mitakshara joint Hindu family, executed an agreement to sell a house described as self‑acquired to Jai Bhagwan but later refused to execute the sale deed. Jai Bhagwan sued for specific performance; the sons of Ram Prakash, claiming the house to be coparcenary property, were denied impleadment and consequently filed a suit for permanent injunction restraining their father from alienating the property. The trial court held the house to be ancestral and the injunction maintainable, but the High Court reversed, holding that a coparcener cannot obtain a permanent injunction against the Karta; the only remedy is to challenge the alienation after it occurs. The Supreme Court affirmed the High Court, holding that under Section 38(h) of the Specific Relief Act a coparcener has no right to such an injunction, and the Karta may alienate only for legal necessity or benefit of the estate.

Issues considered

The right of a coparcener to maintain a suit for permanent injunction under Section 38 of the Specific Relief Act restraining the Karta/manager of a joint Hindu family from alienating coparcenary property.

Legislation cited

Specific Relief Act, 1963s. 37, s. 38, s. 41

Subjects

Joint Hindu familyCoparcenerKartaAlienation of propertyPermanent injunctionSpecific Relief ActSection 38Legal necessityHindu law

Judgment

SUSHIL KUMAR & ANR. A
1 v.
RAM PRAKASH & ORS.
\ JANUARY 13, 1988

[B.C. RAY AND K. JAGANNATHASHETIY, JJ.] B

Specific Relief Act, 1963-The right of a coparcener to maintain a
)' suit for permanent injunction under section 38 of, restraining the mana-
ger or Karta of Joint Hindu Family from alienating or selling the joint
l
- Hindu coparcenary property-Whether such suit is maintainable.
c

'
Per B.C. Ray, J.

-y The defendant-respondent No. I, Ram Prakash as Karta of a Joint
' Hindu Family executed an agreement to sell the suit property and
received a sum of Rs.S,000 as earnest money. He, however, refused to
execute the sale deed. The defendant No. 2 Jai Bhagwan, instituted a D
suit in the Court of the Sub-Judge for specific performance of the agree-
,,. ment and in tlie alternative for a decree for recovery of Rs.10,000. In
the said suit, the appellants Nos. I and 2 and the respondent No. 11, the
sons of defendant-respondent No. l, made an application for being
impleaded. The application was dismissed. Thereupon, the three sons
of defendant No. I instituted a civil suit in the Court of the Sub-Judge for E
r permanent injunction, restraining the defendant No. t from selling or

- •
l
l
alienating the property above-said to the defendant No.2 or any other
person and restraining the defendant No.2 from proceeding with the
suit for specific performance afore-mentioned, as the 'property in ques-
tiou was a Joint Hindu Family Coparcenary property of the plaintiff
and the defendant No. l, and there was no legal necessity for sale of the F
r property, nor was it an act of good management to sell the same to the
defendant No.2 without the consent of the plaintiffs. The trial Court
)
held that the house-property in question was the ancestral property of
the Joint Hindu Mitakshara Family and the defendant No. l, the father
of the plaintiffs, was not competent to sell the same except for .a legal
necessity or the benefit of the estate, and that since the plaintiffs' appli- G
cation for impleading them in the suit for specific performance of the
~
contract of sale had been dismissed and the plaintiffs were coparceners
''1 having interest in the property, the present suit was the only remedy
available to them, and was maintainable in the present form.

Against this judgment and decree, the defendants, the legal rep- H

623
624 SUPREME COURT REPORTS [1988] 2 S.C.R.

A resentatives of defendant N.o. 2 since deceased, preferred an appeal.
The Appellate Courts held that a coparcener had no right to maintain a
suit for permanent injunction, restraining the manager or Karla from
alienating the coparcenary property and the coparcener had the right
only to challenge the alienation of coparcenary property to recover the
property after the alienation had come into being. The jndgment and
B decree of the trial court were set aside. The appellants, i,e. the sons of
the defendant-respondent No. l, appealed to this Court for relief by 'i
\
special leave against the decision of the High Court.
1
In this appeal the Court was called upon to decide the only ques-
tion whether the stiit for permanent injunction restraining the Karla of
the joint Hindu famjiy from alienating house property belonging to the
c joint Hindu family in pursuance of the agreement to sell executed in
favour of the predecessor .of the appellants, Jai Bhagwan, since
deceased, was maintainable.

It is well-settled that in a Joint-Hindu Mitakshara family, a son
D acquires hy birth an interest equal to that of the father in the ancestral
property. The father by reason of his paternal relation and his position
as the head of the family is its manager and he is entitled to alienate the
joint family property so as to bind the interests of both the adult and
minor coparceners in the property, provided that the alienation is made
for legal necessity or for the benefit of the estate or for meeting an
E antecedent debt. The power of the Manager of a joint Hindu family
property is analogous to that of a Manager for an infant heir as
observed by the Judicial Committee in Hunoomanpersaud Pandey v.
Mussumat Bobooee Munraj Koonweree-Moore's on Indian Appeal
-
(i856Vol. Vl)393. [631C-E]
,· '.----\
In a suit for permanent injunction under section 38 of the Specific {
Relief Act by a coparcener against the father or Manager of the joint
Hindu family property, an injunction cannot be granted as the
coparcener has got equally efficacious remedy to get the sale set aside
and recover possession of the property. Sub-section (h) of section 38 of
the Specific Relief Act bars the grant of such an injunction. Secondly,
G the plaintiff-respondents brought the suit for permanent injunction
restraining their father, the defendant No. l, from selling or alienating y
the property to defendant No. 2 or any other person, etc. Thus the relief
sought for was to restrain by permanent injunction the Karla of the
Joint Hindu Mitakshra family from selling or alienating the property.
The delendant No. l as Karla of the joint Hindu family had undoubtedly
H the power to alienate the joint family property for legal necessity or for
SUSHIL KUMAR v. RAM PRAKASH 625
i
the benefit of the estate as well as for meeting antecedent debts. [632 B-E]
A
.,.
The grant of snch a relief will have the effect of preventing the
father permanently from selling or transferring the property belonging
to the joint Hindu family even if there is a genuine legal necessity. If
such a suit for injunction is held maintainable, the effect will be that
whenever the father as Karla of the joint Hindu coparcenary property B
) will propose to sell such property owing to a bona fide legal necessity,
j any coparcener may come up with such a suit.for permanent injunction
__.,,, and the father will not be able to sell the property for legal necessity till
that suit is decided. In case of waste or ouster, an injunction may be
-( granted against the manager of the joint Hindu family at the instance of
the coparcener, but a blanket injunction restraining the manager per-
-y manently from alienating the property of a joint Hindu family even in
c
the case oflegal necessity, cannot be granted. [632G-H; 633A, DI

It appeared that the defendent No. l entered into the agreement of
sale stating that he was the owner of the suit property. The plaintiffs-
appellants claimed the suit property was the joint family property and D
they as coparceners of the joint Hindu Mitakshra family had equal
shares with their father in the suit property. The question whether the
suit property was the self-acquired property of the father or was the
ancestral property, had to be decided before granting any relief. The
r suit being for permanent injunction, this question could not be gone
into and decided. [633D-E] E

-- • The appeal was dismissed and the judgment and decree of the
High Court were affirmed. [633F]
"
i-' Per K. Jagannatha Shetty, J. (concurring)
'} F
The question raised in the appeal was whether interference of the
Court could be sought by a coparcener to interdict the Karla of a Hindu
undivided family from alienating coparcenary property. The question
was of considerable importance and there seemed to be but little
-> authority in the decided cases.
G
The facts of the case lay in a narrow compass. Ram Prakash
! entered into an agreement for sale of certain house property in favour
of Jai Bhagwan, which was described as a self-acquired property of
:i Ram Prakash. Jai Bhagwan paid Rs.5000 as earnest money on the date
of the agreement and promised to pay the balance on the date of execu-
lion of the sale deed. Ram Prakash, however, did not execute the sale H
626 SUPREME COURT REPORTS 11988] 2 S.C.R.

A deed. Jai Bhagwan instituted a suit for specific performance of the
agreement. In that suit, the sons of Ram Prakash wanted to be
impleaded as parties to resist the suit for specific performance, but the
court did not permit them. Thereupon, they instituted a suit for perma-
nent injunction against their father, restraining him from alienating the
property to Jai Bhagwan or any body else, on the ground that the said
B house was their coparcenary property and the proposed sale was
neither for legal necessity nor for the benefit of the joint family estate.

The suit for injunction was practically tried as a suit for declara-
tion. The trial rourt decreed the suit with the following findings: The
suit property was coparcenary property of the joint family of Ram
Prakash and his sons. Jai Bhagwan had failed to prove that the prop-
C osed sale was for the legal necessity of the joint family or for the benefit y
of the estate. Ram Prakash being the manager of the family could not
alienate the coparcenary property in the absence of these two require-
ments. The sons could restrain their father from alienating the
coparcenary property since the proposed sale was without justification.
D
The wife and children of Jai Bhagwan, who had died during the
pendency of the suit, challenged the decree of the trial court in appeal
before the Additional District Judge. The District Judge reversed the
decree of the trial court and dismissed the suit. The. plaintiffs preferred
second appeal which was dismissed by the High Court. The plaintiff
E appealed to this Court by special leave.

As a preliminary to the consideration of the question involved, it
would be necessary to examine the structure of the joint Hindu family,
its incidents and the power of its Karta or manager. 16350 I
-
F Joint Hindu Family:

A joint Hindu family consists of male members descended lineally
from a common male ancestor, together with their mothers, 'Yives or
widows and unmarried daughters. They are bound together by the
fundamental principle of sapindaship or family relationship which is
G the essential feature of the institution. The cord that knits the memhl'rs
of the family is not property but the relationship of one another. l635F] y

The coparcenary consists of only those persons who have taken by
birth an interest in the property of the holder and who can enforce a parti-
.tion whenever they like. It is a narrower body than a joint family. It com-
H mences with a common ancestor and includes a holder of join! property
SUSHIL KUMAR v. RAM PRAKASH 627

and only those males in his male live who are not removed from him by A
._, more than three degrees. Only males can be coparceners. [635G-H; 636A]

Managing Member and his powers:

In a Hindu family, the Karla or manager occupies a unique posi-
tion. He has greater rights and duties. He must look after the family B
r interests. He is entitled to possession of the entire joint estate. He is also
1 entitled to manage the family properties. In other words, the actual
-::-,--.; possession and management of the joint family property must vest in
him. [637B]
~
The managing member or Karla has not only the power to man-
y age but also the power to alienate joint family property. The alienation
c
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, adults or minors. [637E]

f Remedies against alienations: D

Although the power of disposition of joint family property has
been conceded to the manager of joint Hindu family, the law raises no
presumptions as to the validity of his transactions. His acts could be

.. 'f

•
questioned in the court of law. The other members of the family have a
right to have the transaction declared void, if not justified. When an E
alienation is challenged as 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 and
i
satisfied himself as to the existence of such necessity. If the alienation is
:-., found to be unjustified, it would be declared void. Such alienations
} would be void except to the extent of the manager's share, in Madras, F
Bombay and Central provinces. The purchaser could get only the man-
ager's share. In other provinces, the purchaser would not get even that
much. The entire alienation would be void. [637H; 638A-C]

In the light of these principles, his Lordship did not think that the
"'
.""(
submissions of Mr. H.N. Salve w~re sound. It is true that a coparcener G
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 Karla. It would be for the Karla to
consider the actual pressure on the joint family estate and 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 H
628 SUPREME COURT REPORTS I 1988] 2 S.C.R.

A these acts of management. A father-Karla in addition to the aforesaid
powers of alienation has also the special power to sell or mortgage
ancestral property to discharge his antecedent debt not tainted with
immorality. If there is no such need or benefit, the purchaser takes risk
and the right and interest of the coparcener will ramain unimpaired in
the alienated property. No doubt the law confers a right on the
13 coparcener to challenge the alienation made by Karla, but that right is
not inclusive of the right to obstruct aliention. Nor could the right to
obstruct alienation be considered incidental to the right to challenge the
alienation. The coparcener cannot claim the right to interfere with the
act of management of the joint family affairs; he is not entitled for it. There-
fore, he cannot move the Court to grant relief by injunction restraining the
Karla from alienating the coparcenary property. [6380-E, G-H; 639A-B]
)
c y
There was one difficulty for the sustainability of the suit for
injunction. Temporary injunction can he granted under sub-section (1)
of section 37 of the Specific Relief Act, 1963. A decree for perpetual
injunction is made under sub-section (2) of section 37. Such an injunc-
D tion can be granted upon the merits of the suit. The injunction would he
to restrain the defendant perpetually from commission of an act con-
trary to the rights of the plaintiff. Section 38 of the Specific Relief Act
governs the grant of perpetual injunction. The provisions of section 38
have to be read alongwith section 41, the clause (h) whereof provides
that an injunction cannot he granted when a party could obtain an
E efficacious relief by any other usual mode of proceeding (except in the
case of a breach of trust). The coparcener has adequate remedy to
impeach the alienation made ·by the Karla. He cannot, therefore, move
the court for an injunction restraining the Karla from alienating the
coparcenary property. The decision of the Punjab & Haryana High -"
Court in Jujhar Singh v. Ciani Talok Singh, [!986] P.L.J. 346, 348 has ~
F correctly laid down the law. [639C-D, H; 640A-B] {

Fro1n the above discussions of the principles of Hindu Law and in
the light of the provisions of the Specific Relief Act, his Lordship dis-
missed the appeal. [640G I

G Shiv Kumarv. Moo! Chand, CLJ 1971 page l027;JujharSingh v.
Ciani Talok Singh, I1986] PLJ 346, 348 ; Hunooman Persaud Pandey
v. Mussumat Babooee Munrqj Koonweree Moore's on Indian Appeal,
I i856] Vol. VI 393; Shiv Kumar Moo! Chand Arora v. Moo! Chand
Jaswant Singh, A.I.R. 1972 (Punjab & Haryana) 147; Sudarshan
Maistri v. Narasimhulu Maistri and Anr., ILR 25 Mad, 149 and
H Bhagwan Dayal v. Mst. Reoti Devi, [1952] 3 SCR 440, 477.
SUSHIL KUMAR v. RAM PRAKASH [RAY, J.[ 629

1. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1576
. ~
of 1987 .
A

From the Judgment and Order dated 13.1.1987 of the Punjab
and Haryana High Court in R.S.A. No. 3521of1986

H.N. Salve, R.K. Garg and N.D. Garg for the Appellants. B
\ T. U. Mehta and G .K. Bansal for the Respondents.

- 1

~
The following Judgments of the Court were delivered

RAY, J. The defendant-respondent No. l, Ram Prakash as
Karla of joint Hindu family executed on February 7, 1978 an agree- c
-y ment to sell the suit property bearing M.C.K. No. 238/9, in Mohalla
Qanungaon at Kaithal for a consideration of Rs.21,400 and he
received a sum of Rs.5,000 as earnest money. As the respondent No. 1
refused to execute the sale deed, the defendant No. 2, Jai Bhagwan
instituted a suit No. 570 of 1978 in the court of Sub-Judge, lst Class, D
! Kaithal for specific performance of the agreement to sell and in the
alternative for a decree for recovery of Rs.10,000. In the said suit the
appellant Nos. 1 and 2 and the respondent No. 11 who are the sons of
defendant-respondent No. 1 made an application for being impleaded.
This application however, was dismissed. Thereafter the 3 sons of
'! defendant No. 1 as plaintiffs instituted Civil Suit No. 31of1982 in the E

- >
.._
Court of Sub-Judge, !Ind Class, Kaithal for permanent injunction stat-
ing inter alia that the said property was joint Hindu Family coparce-
nary property of the plaintiffs and defendant No. 1 that there was no
legal necessity for sale of the property nor it was an act of a good
management to sell the same to the defendant No. 2 without the con-
>-- sent of the plaintiffs and without any legal necessity. It was, therefore, F
~ prayed that a decree for permanent injunction be passed in favour of
the plaintiffs and against the defendant No. 1 restraining him from
selling or alienating the property to the defendant No. 2 or to any
other person and also restraining defendant No. 2 from proceeding
with the suit for specific performance pending in the civil court.
~ G
The defendant No. 2 Jai Bhagwan since deceased, filed a written
'i statement stating inter alia that the defendant No. 1 disclosed that the
suit property was owned by him and that he was in need of money for
meeting the expenses of the family including the education expenses cf
the children and also for the marriage of his daughters. It has also been
pleaded that the house in question fetched a very low income from rent H
630 SUPREME COURT REPORTS 11988) 2 S.C.R.
~·
and as such the defendant No. 1 who has been residing in Delhi, did
A
not think it profitable to keep the house. It has also been stated that
the suit was not maintainable in law and the injunction as prayed for )# •'
could not be granted.

The Trial Court after hearing the parties and considering the
B evidences on record held that the house property in question was the
ancestral property of the Joint Hindu Mitakshara Family and the (
defendant No. 1 who is the father of the plaintiffs was not competent \

to sell the same except for legal necessity or for the benefit of the J
estate. Since the plaintiffs' application for impleading them as party in ""'·
the suit for specific performance of contract of sale, was dismissed the
c
filing of the present suit was the only remedy available to the plaintiffs. ~
The plaintiffs being coparceners having interest in the property, the
suit in the present form is maintainable. The Trial Court further.held
y
that:

"It is well settled Jaw that Karta of the joint Hindu family
D cannot alienate the coparcenary property without legal
j
necessity and coparcener has right to restrain the Karta
from alienating the coparcenary property if the sale is with-
out legal necessity and is not for the benefit of the estate.
This view of mine is supported by case titled 'Shiv Kumarv.
Moo/ Chand' reported in CLJ 1971 page 1027 thus, the
proposed sale is without any legal necessity and is not for
y
E
the benefit of the estate, therefore the suit of the plaintiff is
decreed with no orders as to costs." •
<
~
Against this judgment and decree the defendants, the legal rep-
resentatives of the deceased defendant No. 2, preferred an appeal
F being Civil Appeal No. 199/13 of 1984. The lower appellate court
following the decision in Jujhar Singh v. Giani Talok Singh, [!986) PLJ
346 held that a coparcener has no right to maintain a suit for perma-
1
nent injunction restraining the Manager or Karla from alienating the
coparcenary property and the coparcener has the right only to cha!-
lenge the alienation of coparcenary property and recover back the
G property after alienation has come into being. The Court of appeal ¥
below further held:
y
"That Ram Prakash, father of the plaintiffs and Karla of the
joint coparcenary property cannot be restrained by way of
injunction from alienating the coparcenary property to
H defendant No. 2. In consequence, the appeal is accepted
SUSHIL KUMAR v. RAM PRAKASH [RAY, J.J 631
_,.,
and the judgment and decree of the trial court under attack A
are set aside."

"' Against this judgment and decree, the instant appeal on special
leave has been preferred by the appellants i.e. the sons of the
defendant-respondent No. 1, the Karta of the Joint Hindu Family.
B
)' In this appeal we are called upon to decide the only question
whether a suit for permanent injunction restraining the Karla of the
j joint Hindu family from alienating the house property belongingJo the
- joint Hindu family in pursuance of the agreement to sell executed
already in favour of the predecessor of the appellants, Jai Bhagwan,
~ since deceased, is maintainable. It is well settled that in a Joint Hindu
c
Mitakshara Family, a son acquires by birth an interest equal to that of
)'
the father in ancestral property. The father by reason of his paternal
relation and his position as the head of the family is its Manager and he
is entitled to alienate joint family property so as to bind the interests of
both adult and minor coparceners in the property, provided that the
alienation is made for legal necessity or for the benefit of the estate or D
for meeting an antecedent debt. The power of the Manager of a joint
Hindu family to alienate a joint Hindu family property is analogous to
that of a Manager for an infant heir as observed by the Judicial Com-
mittee in Hunoomanpersaud Panday v. Mussumat Babooee Munraj
Koonweree, Moore's on Indian Appeal {1856, Vol. VI) 393:
) E

- ,.
;..
"The power of a Manager for an infant heir to charge
ancestral estate by loan or mortgage, is, by the Hindu Law,
a limited.and qualified power, which can only be exercised
rightly by the Manager in a case of need, or for the benefit

•
~
of the estate. But where the charge is one that a prudent
owner would make in order to benefit the estate, a bona F
fide lender is not affected by the precedent mismanage-
ment of the estate. The actual pressure on the estate, the
danger to be averted, or the benefit to be conferred, in the
particular instance, or the criteria to be regarded. If that
danger arises from any misconduct to which the lender has
>+ been a party, he cannot take advantage of his own wrong to G
support a charge in his favour against the heir, grounded on
1' a necessity which his own wrong has helped to cause.

A lender, however, in such circumstances, is bound
to inquire into the necessities of the loan, and to satisfy
himself as well as he can, with reference to the parties with H
632 SUPREME COURT REPORTS 11988] 2 S.C.R.

whom he is dealing, that the Manager is acting in the
A
particular instance for the benefit of the estate. If he does
inquire, and acts honestly, the real existence of an alleged
and reasonably-credited necessity is not a condition prece-
dent to the validity of his charge, which renders him bound
to see to the application of the money."
B
At the outset it is to be noticed that in a suit for permanent
injunction under section 38 of the Specific Relief Act by a coparcener
against the father or Manager of the Joint Hindu family property, an
injunction cannot be granted as the coparcener has got equally
efficacious remedy to get the sale set aside and recover possession of
C the property. Sub-Section (h) of Section 38 of Specific Relief Act bars
the grant of such an injunction in the suit. Secondly, the plaintiff-
respondents brought this suit for permanent injunction restraining y
their father, the defendant No. 1, from selling or alienating the prop-
erty to the defendant No. 2 or any other person and also restraining
the defendant No. 2 from proceeding with the suit for specific
D performance of the agreement to sell pending in the civil court. Thus
the relief sought for is to restrain by permanent injunction the Karta of
the Joint Hindu Mitakshara Family, i.e. defendant No. !, from selling
or alienating the house property in question. The defendant No. 1 as
Karta of the joint Hindu family has undoubtedly, the power to alienate
the joint family property for legal necessity or for the benefit of the y
E estate as well as for meeting antecedent debts. The grant of such a
relief will have the effect of preventing the father permanently from
selling or transferring the suit property belonging to the joint Hindu
Undivided Family even if there is a genuine legal necessity for such
transfer. If such a suit for injunction is held maintainable the effect will
be that whenever the father as Karta of the Joint Hindu coparcenary
-
F property will propose to sell such property owing to a bona fide legal -~
necessity, any coparcener may come up with such a suit for permanent l
injunction and the father will not be able to sell the property for legal
necessity until and unless that suit is decided.

The judgment in Shiv Kumar Moo! Chand Arora v. Moo! Chand
G Jaswant Singh, AIR 1972 (Pub. & Har.) 147 wherein it was held that a
suit for permanent in junction against the father to restrain him from
alienating the joint Hindu family property was maintainable has been
off-set by the Division Bench in Jujhar Singh v. Giani Talok Singh,
(supra) wherein it has been held that a suit for permanent injunction
by a coparcener against the father for restraining him from alienating
H t)le house property belonging to the joint Hindu family for legal neces-
SUSHIL KUMAR v. RAM PRAKASH (SHETIY, J.J 633
1 sity was not maintainable because the coparcener had got the remedy A
of challenging the sale and getting it set aside in a suit subsequent to
" the completion of the sale. Following this decision the High Court
allowed the appeal holding that the suit was not maintainable revers-
ing the judgment and decree of the Trial Court. We do not find any
infirmity in the findings arrived at by the High Court.
B
y It has, however, been submitted on behalf of the appellant that
the High Court should have held that in appropriate cases where there
j are acts of waste, a suit for permanent injunction may be brought
'"' against the Karta of the joint Hindu family to restrain him from
( alienating the property of the joint Hindu family. This question is not
required to be considered as we have already held that the instant suit c
-y for injunction as framed is not maintainable. We, of course, make it
clear that in case of waste or ouster an in junction may be granted
against the Manager of the joint Hindu family at the instance of the
coparcener. But nonetheless a blanket injunction restraining perma-
nently from alienating the property of the joint Hindu family even in
the case of legal necessity, cannot be granted. It further appears that D
~
the defendant No. l, Ram Parkash entered into the agreement of sale
stating that he is the owner of the suit property. The plaintiff-appel-
!ants claim the suit property as ancestral property and theY. as
coparceners of joint Hindu Mitakshara family have equal shares with
their father in the suit property. The question whether the suit prop-
1 erty is the self-acquired property of the father or it is the ancestral E
property has to be decided before granting any relief. The suit being
~

one for permanent injunction, this question cannot be gone into and
• decided. It is also pertinent to note in this connection that the case of
f specific performance of agreement of sale bearing suit No. 570 of 1978
:- had already been decreed on llth May, 1981 by the Sub-Judge, Ist
Class, Kaithal. F
\
I
For the reasons aforesaid we affirm the judgment and decree
made by the High Court and dismiss the appeal without any order as to
costs.

G
""
°'(
JAGANNATHA SHETTY, J. I agree that this appeal should be
dismissed but I add a few words of my own. The question raised in the
appeal is whether interference of the Court could be sought by a
coparcener to interdict the Karta of Hindu undivided family from
alienating coparcenary property. The question is of considerable
importance and there seems to be but little authority in decided cases.
H
634 SUPREME COURT REPORTS [1988] 2 S.C.R.
)--
A The facts of the case lie in a narrow compass. Jn February, 1978.
Ram Prakash entered into agreement for sale of certain house prop-
.,,.
erty in favour of Jai Bhagwan. The property has been described in the
agreement as self acquired property of Ram Prakash. It was agreed to
be sold for Rs.21,400. Jai Bhagwan paid Rs.5,000 as earnest money on
the date of agreement. He promised to pay the balance on the date of
B
execution of the sale deed. Ram Prakash, however, did not keep up his
promise. He did not execute the sale deed though called upon to do so. 'f
Jai Bhagwan instituted a suit for specific performance of the agre.e- \
i
ment. ln that suit, Rakesh Kumar and his brothers who are the sons of
Ram Prakash wanted to be impleaded as parties to the suit. They wa9t ...
c
to resist the suit for specific performance, But the Court did not permit
them. The Court said that they were·unnecessary parties to the suit.
)
Being unsuccessful in that attempt, they instituted a suit for permanent y
injunction against their father. They wanted the Court to restrain their
father from alienating the house property to Jai Bhagwan. or to any
body else. Their case was that the said house was their coparcenary
property and the proposed sale was neither for legal necessity nor for
D
benefit of the joint family estate.
•
The suit for injunction was practically tried as a suit for declara-
tion. A lot of evidence was adduced on various issues, including the
nature of the suit property. The trial court ultimately decreed the suit
with the following findings: The suit property was coparcenary pro- y
E
perty of the joint family consisting of Ram Prakash and his sons. Jai
Bhagwan has failed to prove that the proposed sale was for legal neces-
sity of the joint family. He has also failed to prove that the intended •
sale was for benefit of the estate. Ram Prakash being the manager of •
.\,
the family cannot alienate coparcenary property in the absence of
those two requirements. The sons could restrain their father from
F
alienating the coparcenary property since the proposed sale was with-
out justification. 1
Jai Bhagwan died during the pendency of the suit. His wife and
children challenged the decree of the trial court in an appeal before the
Additional District Judge, Kurukshetra. By then, the Punjab &
G
Haryana High Court had declared in Jujhar Singh v. Giani Talok
Singh, [1968] P.L.J. 346 that a suit for injunction to restrain Karta y
"'
from alienating coparcenary property is not maintainable. The learned
District Judge following the said decision reversed the decree of the •
trial court and dismissed the suit. The plaintiff preferred second appeal
H which was summarily dismissed by the High Court.
SUSHIL KUMAR v. RAM PRAKASH [SHETIY, J.l 635
-1
The plaintiffs, by special leave, have appealed to this Court. The
A
y arguments for the appellants appear to be attractive and are as follows:

There is no presumption under law that the alienation of joint
family property made by Karta is valid. The Karta has no
arbitrary power to alienate joint family property. He could do so
only for legal necessity or for family benefit. When both the B
y requirements are wanting in the case, the coparceners need not
I vainly wait till the transaction is completed to their detriment.
\ They are entitled to a share in the suit property. They are
....,,_
'
interested in preserving the property for the family. They could,

'
therefore, legitimately move the court for an action against the
Karta in the nature of a quia timet.
y
c
As a preliminary to the consideration of the question urged, it
will be necessary to examine the structure of joint Hindu family, its
incidents and the power of Karta or manager thereof. The status of the
undivided Hindu family or the coparcenary is apparently, too familiar
to every one to require discussion. I may, however, refer in laconie D
details what is just neces~ary for determining the question urged in this
appeal.

JOINT HINDU FAMILY:
. -y
Those who are of individualistic attitude and separate ownership E
.... ,. may find it hard to understand the significance of a Hindu joint family
and joint property. But it is there from the ancient time perhaps, as a
social necessity. A Hindu joint family consists of male members
' descended lineally from a common male ancestor, together with their
).-.. mothers, wives or widows and unmarried daughters. They are bound
together by the fundamental principle of sapindaship or family rela- F
! tionship which is the essential feature of the institution. The cord that
knits the members of the family is not property but the relationship of
one another.

The coparcenary consists of only those persons who have taken

"' "(
by birth an interest in the property of the holder and who can enforce a G
partition whenever they like. It is a narrower body than joint family. It
commences with a common ancestor and includes a holder of joint
property and only those males in his male line who are not removed
from him by more than three degrees. The reason why coparcenership
is so limited is to be found in the tenet of the Hindu religion that only
male descendants upto three degrees can offer spiritual ministration to H
.,
I

636 SUPREME COURT REPORTS I1988] 2 S.C.R.
an ancestor. Only males can be coparceners. [See: Hindu Law by
A N.R. RaghavachariarSthEd. p. 202].

In an early case of the Madras High Court in Sudarshan Maistri
v. Narasimhulu Maistri and anr., ILR 25 MAD 149 Bhashyam
Ayyanger, J. made the following pregnant observations about the
B nature of the institution and its incidents at p. 154:

"The Mitakshara doc.trine of joint family property is
founded upon the existence of an undivided family, as a
corporate body (Gan Savant Bal Savant v. Narayan Dhond
Savant), (I.L.R. 7 Born 467 at p. 471) and Mayne's Hindu
Law and Usage, 6th edition, paragraph 270 and the posses-
--
c sion of property by such corporate body. The first requisite
therefore is the family unit; and the possession by it of
property is the second requisite. For the present purpose
female members of the family may be left out of considera-
tion and the conception of a Hindu family is a common
D male ancestor with his lineal descendants in the male line,
and so long as that family is in its normal condition viz. the
undivided state-it forms a corporate body. Such corporate
body, with its heritage, is purely a creature of law and
cannot be created by act of parties, save in so far that, by
adoption, a stranger may be affiliated as a member of that
y

-
E corporate family."

Adverting to the nature of the property owned by such a family,
learned Judge proceeded to state at p. 155:

"As regards the property of such family, the 'unob-
F structed heritage' devolving on such family, with its accre- '--\
tions, is owned by the family as a corporate body, and one 1
or more branches of that family, each forming a corporate
body within a larger corporate body, may possess separate
'unobstructed heritage' which, with its accretions, may be
exclusively owned by such branch as a corporate body."
G
This statement of law has been approved by the Supreme Court
y·
in Bhagwan Dayalv. Mst. Reoti Devi, [1962] 3 SCR 440 p. 477.

Managing Member and His Powers:

H In a Hindu family, the karta or manager occupies a unique posi-
SUSHIL KUMAR v. RAM PRAKASH [SHETIY, J.] 637
-{
tion. It is not as if anybody could become manager of a joint Hindu A
family. "As a general rule, the father of a family, if alive, and in his
-.: absence the seni6r member of the family, is alone entitled to manage
the joint family property." The manager occupies a position superior
to other members. He has greater rights and duties. He must look after
the family interests. He is entitled to possession of the entire joint
estate. He is also entitled to manage the family properties. In other B
words, the actual possession and management of the joint family prop-
erty must vest in him. He may consult the members of the family and if

't
necessary take their consent to his action but he is not answerable to
every one of them.

The legal position of karta or manager has been succinctly sum- c
marised in the Mayne's Hindu Law (12th Ed. para 318) thus> 318.
f' Manager's Legal position- "The position of a karta or managet 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." D

The managing member or karta has not only the power to man-
age 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
'1 family whether they are adults or minors. The oft quoted decision in E
. ~
this aspect, is that of the Privy Council in Hanuman Parshad v. Mt .
Babooee, I1856] 6 M.I.A. 393. There it was observed at p. 423: ( 1) "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 F
r 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 princi-
pies laid down in that case apply equally to a father or other
~ coparcener who manages the joint family estate. G

'"r Remedies against alienations:

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 trans- H
638 SUPREME COURT REPORTS [1988] 2 S.C.R.

A actions. His acts could be questiooed in the Court of law. The other 'r
members of the family have a right to have the trans·action dedared
void, if not justified. When an alienation is challenged as being ·y
unjustified or illegal it would be for the alienee to prove !harthere 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 alience to prove
13 that he did all that was reasonable to satisfy himself as to the existence ,
of such necessity. If the alie.nation is fo.und to be unjustified, the.n 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 sharec But in other pro-
vinces, the purchaser would not get even that much. Tlie entire aliena- -l.
tion would be void. [Mayt\e's Hindu Law llth ed. para 3961. ~
c
•In the light of these principles, I may now examine the correct-
ness 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
D property. Second, the right of copercener 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
Karla from dissipating the ancestral property by moving the Court?
Why should he vainly wait till the purchaser gets title to the property?
E This appears to be the line of reasoning adopted by the learned
counsel.
•
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',.-{
F 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 1
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
G 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 Y
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
H challenge the alienation made by karta, but that right is not inclusive
SUSHJL KUMAR v. RAM PRAKASH [SHETIY, J.[ 639
-"'(
of the right to obstruct alienation. Nor the right to obstruct alienation
A
could be considered as incidental to the right to challenge the aliena·
-r· tion. These are two distinct rights. One is the right to claim a share in
the joint family estate free from unnecessary and unwanted encumbr·
ance. 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 B
r court to grant relief by injunction restraining the karta from.alienating
the coparcenary property.
i
'"" There is one more difficulty for the· sustainability of t]je suit for

t injunction with which we are concerned. Temporary injunction can be
granted under sub section ( 1) of Section 37 of the Specific Relief Act,
c
y 1963. It is regulated by the Code of Civil Procedure, 1908. A decree for
perpetual injunction is made under sub.section (2) of Section 37. Such
an injunction can be granted upon the merits of the suit. The injunc·
lion would be to restrain the.defendant perpetually from the commis·
sion of an act, which would be contrary to the rights of the plaintiff.
Section 38 of the Specific Relief Act governs the grant of perpetual D
injunction and sub section 3 thereof, reads:

"When the defendant invades or threatens to invade the
plaintiff's right to, or enjoyment of, property, the Court.
'f may grant a perpetual injunction in the following cases.
namely: E
....,..
..,.., (a} Where the defendant is trustee of the property
for the plaintiff;

!-< (b) Where there exists no standard for ascertaining
the actual damage caused or likely to be caused, by F

'
, the invasion;

(c) Where the invasion is such that compensation in
money would not afford adequate relief;

~
(d) Where the in junction is necessary to prevent a G
multiplicity of judicial proceedings".
y
The provisions of Section 38 have to be read alongwith section
41. Section 41 provides that an injunction cannot be granted in the
cases falling under clauses (a) to (j). Clause (h) thereunder provides
that an injunction cannot be granted when a party could obtain an H
640 SUPREME COURT REPORTS [1988] 2 S.C.R.
}-
A efficacious relief by any other usual mode of proceeding (except in
case of breach of trust). The coparcener has adequate remedy to
impeach the alienation made by the karta. He cannot, therefore, move y
the Court for an injunction restraining the karta from alienating the
coparcenary property. It seems to me that the decision of the Pun jab &
B Haryana High Court in Jujhar Singh v. Giani Talok Singh, [1986)
P.L.J. 346 has correctly laid down the law. There it was observed at p.
348: i
"If it is held that such a suit would be competent the J.:
result would be that each time the manager or the karta ,..
wants to sell property, the coparcener would file a suit ~)
c 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
y
frustrated by the time the suit is disposed of. Legally speak-
ing unless the alienation in fact is completed there would be
no cause of action for any coparcener to maintain a suit
D
because the right is only to challenge the alienation made
and there is no right recognised 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 y
E
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 .A.
only to challenge the same and to recover the property
F
after it has come into being."

From the above discussion of the principles of Hindu Law and in
1
the light of the provisions of the Specific Relief Act, I think, therefore,
there ought to be no hesitation on my part to dismiss this appeal and I
dismiss the same with cost.
G -1--
S.L. Appeal dismissed.
y