w ^9 "ol' HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL No. 67 OF 2007 Appellants Respondents Bhagwndin Namdeo & Others Vs. Awadh Bihari Namdeo & Others Pbst for pronouncement ofjudgment and orders on '7 /09/2009. s^ Sd/- I. K. Agarwal Judge K^ HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 67 of 2007 Appellants Defendants No. 1to3 ^ Respondents Defendant No. 4. Defendant No. 5. Defendant No. 6. 1. Bhagwndin Namdeo, S/o late Khanjanlal Namdeo, aged about 80 years, R/o Village Dadi, Tehsil Bemetara, District Durg Presently residing near Rest House, Nawagarh, District Durg. 2. Ghanshyam Bihari Namdeo, S/o Bhagwandin Namdeo, aged about 43 years, R/o village Dadi, Post Dadi, Tehsil Bemetara, District Durg. 3. Atalbihari Namdeo, S/o Bhagwandin Namdeo, aged about 32 years, R/o Near Rest House, Nawagarh, District Durg. Versus 1. Awadh Bihari Namdeo, S/o Bhagwandin Namdeo, aged about 38 years, R/o village Dadi, Tehsil Bemetara, District Durg. Plaintiff 2. Shyambihari Namdeo, S/o Bhagwandin Namdeo, aged about 47 years, R/o village Dadi, Tehsil Bemetara, District Durg. 3. Sarjudas Manikpuri, S/o Agardas Manikpuri, aged about 39 years, Shiksha Karmi, R/o Village Dadi, District Durg. 4. Firoz Khan, S/o Haleem Khan, aged about 35 years, Shiksha Karmi, R/o Village Dadi, Tehsil Bemetara, District Durg. @ Defendant No. 7. 5. Ramnath Chandrakar, S/o Mayaram Chandrakar, aged about 38 years, Shiksha Karmi, R/o Village Dadi, Tehsil Bemetara, District Durg. Misc. Appeal under Order 43 Rule 1 (R) of CPC, 1908. (Sinale Bench: Hon'ble Mr. N.K. Aaarwal. J.) ^ ^. Present : Shri Sanjay S. Agrawal, Advocate for appellant. , Shri SC Verma, Advocate for respondentNo. 1. Shri KN Nande with Ms. Pushpa Dwivedi, Advocates for respondent No. 2. None for respondent No. 3 to 5 though served. ORDER (Passed on ^jL day of September, 2009) The instant miscellaneous appeal is directed against the award dated 29.09.2007 (Annexure P/4) passed by Additional District Judge, Bemetara, Distt. Durg, in civil suit No. 10-A/06 whereby and whereunder the application preferred by the plaintiff/respondent No. 1 under Order 39 Ruie 1 & 2 of CPC was allowed and appeliants herein were restrained from alienating the suit house and defendant No. 5 to 7 were directed to deposit the rent in the court. The brief facts of the case are that, the plaintiff Awadh Bihari instituted a su'rt (Annexure P/1) for declaration oftitle, partition, separate possession and for permanent injunction, claiming 1/3rd share in the suit house. An application under Order 39 Rule 1 & 2 of CPC (Annexure P/2) was ^lso filed seeking temporary injunction restraining the defendanf No. 1 i.e. the father from alienating the suit house and also against the defendant No. 2 from collecting the rent from defendant No. 5 to 7. -J ^ IIN^' 6. © The appellants filed their reply in which although they have admitted that they are not making any efforts to alienate the suit house, but claimed its dismissal on account of some technical grounds such as mis-joinder & non-joinder of necessary party, and the relief regarding rent is not claimable. The trial court, on appreciation of the pleadings of the parties, material placed on record, and on the basis of affidavits filed by the parties in support of their contention with regard to application for temporary injunction, observed that the defendants have not denied the share of the plaintiff in the suit house; the defendant No. 4 admitted the averments of the plaint and the question of mis-joinder/non-joinder of necessary party can be decided by framing preliminary issue in this regard & finding prima-facie case and balance of convenience in favour of the plaintiff, allowed the apptication of temporary injunction and restrained appellants from alienating the suit property. The only question raised by Shri Agrawal, learned counsel appearing for the appellants is that the father, a Karta of joint Hindu family is entitled to alienate the suit property for legal necessity and he cannot be restrained by the court from such alienation, the respondent if aggrieved, can challenge such transfer on the ground that it is without legal necessity. For this, reliance has been placed by Shri Agrawal on the judgment of Supreme Court in the matter of Sunil Kumar & Another v. Ram Prakash and Others . AIR 1988 SC 576 ^ff 7. Per contra, Shri Verma, learned counsel appearing for respondent No. 1 would submit that it is not a case where the plaintiff has filed a suit for injunction simplicitor. In substance; the suit has been filed, claiming partition in the suit house. Once the partition is claimed, the status of joint family does not remain as it is and thereafter the appellants cannot say that they are still entitled to sale the suit house forsome legal necessity of the joint family. 8. I have heard the counsel appearing for the parties, perused the record and order impugned. 9. The issue involved in this case js that whether or not in a suit for partition between the members of joint Hindu family, the Manager (Karta) of family can be restrained from alienating the suit property. 10. The Supreme Court in case of Sunil Kumar (Supra), while dealing with a suit for permanent injunction, restraining the Karta of the joint family from alienating the suit house belonging to the joint Hindu family in pursuance of an agreement to sale already executed in favour of purchaser, has held that Karta of the joint Hindu has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts and grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belongjng to the joint Hindu Undivided Family even ifthereis a genuine legal necess'rty 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 coparcener will propose to sell such property owing to a bona fide legal necessity, 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 until and unless that suit is decided. It was further held that the suit for injunction as framed is not maintainable but in case ofwaste or ouster an injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener. it was further observed that as adequate remedy is available to impeach the alienation made by the Karta, therefore, he cannot, move the court for an injunction restraining the Karta from alienating the coparcenary property. 11. Therefore, it is crystal clear that in view of law laid down by the Supreme Court in the above referred case, the Manager or Karta of joint Hindu family cannot be restrained from alienating the joint Hindu family property belonging to joint Hindu family in a suit for permanent injunction filed by a coparcener because the coparcener is always free to challenge such alienation on the ground that it was without any legal necessity. 12. Before applying the ratio of the aforesaid judgment in the facts of present case, it is necessary to examine the effect of filing of partition suit on the status of joint famity. It is well settled law that partition is a severance of joint status. When there is a severance of joint family but the property is not partitioned, the members offamily become tenants in commonandwould be /^'v'-. ^^FIi^ i i Z "JJ \::!^y ^' 13. 14. liable to account for the incomings received by them till the time a final partition takes place and the properties are in the respective possession of such members. Here in the instant case, a suit for part'rtion has been filed by the plaintiff. The status of joint family stands disrupted and all coparcener hold suit house as tenants in common, and therefore, in the facts and circumstances of the instant case, the case law cited by Shri Agrawal is of no help to him. Therefore, the trial court had rightly passed the order impugned in its discretion which is based on sound principles after finding prima-facie case; balance of convenience in plaintiffs favour. For the reasons mentioned hereinabove, the appeal is devoid of substance and is accordingly dismissed. However, as the suit is pending since 2006, it is directed that the trial court shall decide the suit expeditiously. • No order asto costs. Sd/- N. K. Agarwal Judge Sahu N