In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 6660 of 2008 (O&M) Date of decision: September 11, 2009 Ismail and another .. Petitioners Vs. Hajra .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sushil Jain, Advocate for the petitioners. Mr. R.S. Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate for the respondent. A.N. Jindal, J This petition has arisen out of the order dated 26.7.2008 passed by the learned Additional District Judge, Nuh, accepting the appeal filed by the defendant-respondent (herein referred as 'the defendant') against the order dated 26.10.2006 passed by the Civil Judge (Jr. Division), Ferozepur, Jhirka, and dismissing the application of the plaintiff-petitioner (herein referred as 'the plaintiff') for grant of injunction. The brief resume of facts is that the defendant is the widow of late Samsuddin son of Ishak and the plaintiff-Sher Khan (now deceased represented by the petitioners) was the real brother of late Samsuddin. They are Meos by caste and agriculturists by profession. They are dominant agricultural tribe of erstwhile State of Punjab and Haryana and are governed by the customary law. The pedigree table, for convenience is as under :- Ishak ! ------------------------------------------------------------------------------------------ ! ! ! ! Sher Khan Samsuddin Ayyub Abbas ! ! ----------------- Hajra (widow) ! ! Ismail Rashid Civil Revision No. 6660 of 2008 (O&M) -2- *** Late Samsuddin was the co-sharer to the extent of 1/4th share in the suit land situated in the revenue estate of village Neemka, Tehsil Punhana, District Gurgaon. On his death, mutation was sanctioned in favour of the defendant vide mutation No.1772 dated 17.2.1999. The defendant had no male issue, therefore, Sher Khan and his two brothers namely Ayyub and Abbas being the nearest collaterals had to succeed the estate left by Samsuddin on the death of the defendant. According to the custom prevailing in the community, the ancestral property in the hands of meos is inherited by his son and in the absence of his son by the nearest collateral. Daughters have no right of succession in the property either ancestral or non-ancestral in the hands of meo proprietor. However, the widow could inherit the same as limited owner and she could not alienate the same without legal necessity. She also could not appoint any heir without consent of the nearest collaterals of her husband who were legally entitled to inherit the property on her death. Since the defendant wanted to alienate the property, Sher Khan filed the suit. However, during the pendency of the suit he expired and succeeded by the petitioners. In this suit for injunction the plaintiff has also sought temporary injunction restraining the defendant from alienating the suit property during the pendency of the suit, which was accepted by the trial court. However, this order was reversed in appeal. The main controversy involved in the present petition is as to whether a limited owner under the customary law had the right to alienate the same and whether the plaintiffs could file the suit for injunction during the life time of the widow? There is no denying a fact that parties are meos by caste and agriculturist tribe and the property was inherited by defendant from her husband. As per customary law authored by Sir W.H. Rattigan who compiled all the customs prevailing in the agricultural states of Punjab & Haryana, recorded in para No.62 in “A Digest of Customary Law In The Punjab”, as under : Civil Revision No. 6660 of 2008 (O&M) -3- *** “62. Every person having an interest in property whether absolute or as life tenant (e.g. a widow, a daughter, or a mother) can sell or mortgage such property for a necessary purpose.” The rights of the women in agricultural tribes of meos was put at par with the rights of karta in a joint Hindu family property and she could alienate the property for her legal necessity. I have been informed that the defendant has daughters of marriageable age. She has also submitted that the property in the hands of Samsuddin was not ancestral. She also denied if she was governed by the custom and on her death the property was to devolve upon Sher Khan since deceased. Having examined records and hearing the rival contentions, it could prima facie be observed that the property was ancestral in the hands of Samsuddin and he was a co-sharer to the extent of 1/4th share in the land. However, this issue requires consideration on merits. There is also no denying a fact that the plaintiff and the defendants hail from Meo tribe of District Gurgaon and according to the customary law, the defendant could not alienate the suit property without legal necessity, but the customs appears to have strengthened the hands of widow in order to save her from passing through the life of a beggar, destitute and other adverse circumstances, at the death of her husband and to look at the hands of reversioners for her survival and survival of her children. The status of widow in the agricultural tribe of meos in the State of Punjab is not lower than that of karta of joint Hindu family property, who could also sell the joint coparcenary Hindu family property for legal necessity. In the light of the fact that the person was competent to sell the property for legal necessity, the other reversioners could not come to contend that the defendant had no right to alienate the same though they could challenge the alienation on the ground that the same was act of waste and was not for legal necessity. Even a coparcener who does any act which is either illegal or improper and prejudicial to the joint interests and enjoyment can be restrained from such act by an injunction at the instance of the other Civil Revision No. 6660 of 2008 (O&M) -4- *** coparceners, but the court's jurisdiction has been limited to the acts of waste, illegitimate use of the family property or acts amounting to ouster. The defendant could be prohibited from wasting, damaging any property but she could not be prohibited from alienating the same for legal necessity and better management of the property. Similar observations were made by the Division Bench of this Court in case Jujhar Singh vs. Giani Talok Singh, 1986 PLJ 346 wherein it was observed as under :- “Apart from the fact that there is no precedent for supporting the proposition that the suit like the present one would be maintainable, it is also difficult to conceive the nature of the injunction to be granted in such a suit. At the best, the suit can be to restrain the proposed alienation because the manager or the karta cannot be restrained from making alienation of the coparcenary property for all times in future as he has legal right to do so if he is of the opinion that there is a genuine need or that it would be for the benefit of the estate. 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 the 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 recognized 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 for karta obviously would not be applicable to such a suit because the proposed alienation of 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 Civil Revision No. 6660 of 2008 (O&M) -5- *** 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. The decision in Shiv Kumar Mool Chand Arora's case is accordingly over-ruled and this appeal is dismissed. No costs.” The view taken in Jujhar Singh's case (supra) was approved by the Apex Court in case Sunil Kumar and another vs. Ram Parkash and others, 1988 PLJ 227 (SC). Again this court in case Naresh and another vs. Babu Lal and others, 2006 (4) RCR (Civil) 459, while taking shelter of Jujhar Singh's case (supra), reiterated that karta of family cannot be restrained from alienating the suit property because of the fact that right to challenge the alienation of coparcenary property is available only after the sale is complete and no injunction could be granted. Thus, without delving deep into the controversy, it would be apposite to hold that in the light of the fact that the respondent had a right to alienate the property for legal necessity, therefore, she could not be restrained from selling the same. As such, this revision petition sans any merits and is dismissed. However, nothing stated herein above would be an expression of opinion effecting merits of the case. September 11, 2009 (A.N. Jindal) deepak Judge