Sukhwant Singh vs Jagdev Singh & Ors.

“7.

Upon taking into consideration the rival submissions, in the light of the material on record, this Court is of the considered view that even if the contention of the plaintiff is accepted that the property in hands of the defendants is ancestral and coparcenary property, yet it has to be considered that during the lifetime of defendant no.1 who is father of the plaintiff, the father is to be considered as karta of the joint family and manager of the coparcenary property. It is the settled position of law as laid down in case law titled as Raghbir Singh v. Dalip Singh, (P&H): Law Finder Doc Id # 71224 and Harpreet Singh v. Gurbhej Singh, (P&H): Law Finder Doc Id #203193 that in so far as the State of Punjab is concerned, a suit at the instance of the son-coparcener is not maintainable against father-Karta, during lifetime of the latter, for partition of the coparcenary property or even seeking joint possession of the coparcenary property. In essence, the Mitakshara School of Hindu Law is applicable in the State of Punjab. By the very nature of coparcenary property, the share of any coparcener is a fluctuating share, which can be determined only after the death of the Karta, when the partition opens. Thus, it cannot be determined, at this stage, whether the plaintiff has any particular share in the suit property. As such, the Ld. Trial Court had wrongly ordered the defendants not to alienate the share of the plaintiff in the suit property, as it is not a determined share till the partition opens. There is only one exception to the above-mentioned rule, which provides that a suit for declaration can be filed by the son-coparcener against father-Karta to challenge alienations of the coparcenary property on the ground that they are not for the benefit of the estate or they are not for legal necessity. However, the plaintiff has not challenged any such alienation, which might have been made by defendant no.1 out of the suit property. Therefore, the suit is prima-facie not maintainable. The relief of declaration sought by the plaintiff, in essence, amounts to relief of partition or at the very least, a suit for joint possession, which shall ultimately tantamount to a suit for partition but this nature of the suit is against the basic principles of coparcenary property i.e. fluctuating share as well as survivorship. This Court is of the considered view that the most material aspect of the suit regarding its maintainability has been ignored by the Ld. Trial Court while passing the impugned order. It has proceeded on the premise that the suit is maintainable, without recording any cogent reasons regarding the said aspect, despite a categoric objection having been taken in the written statement by the defendants regarding non-maintainability of the suit. It is laid down in case law titled as Gram Panchayat Village Paluwas v. Maharana Partap Charitable Trust (P&H): Law Finder Doc Id # 605058 that where the suit is not maintainable, then the relief of interim injunction cannot be granted. Hence, this court is of the considered view that the plaintiff is not entitled to the relief of interim injunction as the suit is not maintainable. This Court is constrained to observe that the impugned order has been passed by the Ld. Trial Court by ignoring the above-mentioned principles of law. Hence, it is a perverse order, which cannot be sustained in the eyes of law and warrants interference of this court in its Appellate jurisdiction.

CONCLUSION

8.

Consequently, in view of the detailed discussion made above, the impugned order is set aside. Resultantly, the appeal is accepted. Hence, the application under Order 39 Rule 1 and 2 CPC filed by the plaintiff stands dismissed.”

“3.

So far as the impediment to the son in Punjab in claiming partition is concerned, the matter is not res integra. Two Full Benches i.e. 1917 Punjab Records No. 105 : (AIR 1918 Lahore 291) (Hari Kishen v. Chandu Lal) and (Satish Narain v. Deoki Nandan, AIR 1947 Lahore 372) carefully discovered the principle that in Punjab a son is not entitled to ask for partition of the coparcenary property, the manager of which is the father, without the latter's consent. Those are based on the principles of Hindu Law as culled out in various treatises on the subject. However, with regard to the right of the son to have rendition of accounts of the income of the coparcenary property, no precedent of this Court has been brought to my notice by the learned counsel for the petitioner. The plaintiff-respondents despite being served have not put in appearance. In the situation, as at present advised, paras 235 and 237 of 'Mulla : Principles of Hindu Law', seem to me to govern the issue unmistakably :

"235.

Right of Coparceners :- (1) Community of interest and unity of possession :- No coparcener is entitled to any special interest in the coparcenary property, nor is he entitled to exclusive possession of any part of the property. As observed by their Lordships of the Privy Council, "there is community of interest and unity of possession between all the members of the family."

(2)

Share of income :- A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined only when a partition takes place. As no member, while the family continues joint, is entitled to any definite share of the joint property, it follows that no member is entitled to any definite share of the income of the property. The whole income of the joint family property must be brought, according to the theory of an undivided family, to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of an undivided family.

(2a) Joint possession and enjoyment :- Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition. ... ... ... ... ... ... ... ... ...

237.

Manager's power over income :- The manager, as the head of the family, has control over the income and expenditure, and he is the custodian of the surplus, if any. So long as he spends the income for the purposes of the family, he is not under the same obligation to economise or save as a paid agent or trustee would be. If he spends more than the other members approve, their remedy is to demand a partition. On the other hand, he is liable to make good to them their shares of all sums which he has misappropriated or which he has spent for purposes other than those in which the joint family was interested."

4.

The manager's liability to account on partition would arise only if partition is permissible. But in Punjab, as it seems to me, when partition cannot be enforced against the manager father at the instance of his son, the father's liability to account at the pre-partition stage does not arise. The rights of the members of the coparcenary against him are only confined to what is stated in paras 235 and 237, quoted above. These are further elaborated in para 238 as well, but to which reference instantly is not necessary…”