SOKHOI MALLIK Vs. AJAY ALIAS AKHAYA MALLIK

JUDGEMENT

(1.) Petitioner calls is question legality of appellate order passed by the learned Subordinate Judge. Kendrapara, accepting the prayer for injunction made by the opposite party herein, which has been refused by learned Munif, Kendrapara.

(2.) Background in which the dispute arose, essentially is as follows:

(3.) Question whether a Karta should be interdicted from alienating coparcenary property on a motion being made by a coparcener has received attention of several High Courts and also the apex Court. 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 partition when ever 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 coparcener ship is so limited is to be found in the tenant of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancescestor. Only malas can be coparcener's. The power of a manager of an infant hair 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 fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, are the criteria to be regarded. In a Joint Hindu 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 coparcener in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or 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. This view was eloquently expressed by the Judicial Committee in Hanumanprasad Panday Vs. Musssumat Saboose Munral Koonweree : (1985) 6 Moo Ind App 393.