MOHINDER SINGH Vs. GURAANSH SAINI AND ORS.

JUDGEMENT

(1.) Challenge in the present revision petition, filed by the petitioner-defendant No. 1, is to the order dated 22.08.2012 (Annexure P6), whereby the application filed by him for treating the issue regarding the suit being not maintainable as a preliminary issue, has been dismissed by the Addl. Civil Judge (Sr. Divn.) Dasuya by holding that the plaintiff should led further evidence since the plaintiff has alleged that the sale deed is without legal necessity and therefore, he was at liberty to challenge the sale deed. Counsel for the petitioner has placed reliance upon the judgment of this Court in Bhagat Singh v. Balihar Singh & others, 2008 150 PunLR 754 to contend that the suit filed was not maintainable since the karta was alive and therefore, during his lifetime, the alienation could not be challenged. Reliance has also been placed upon the judgment rendered in Raghubir Singh v. Dalip Singh & another, 2004 137 PunLR 599 wherein it was held that the suit for joint possession was not maintainable during the lifetime of the father.

(2.) A perusal of the paperbook would go on to show that the suit, filed by the plaintiff/respondent, who is the minor son of the petitioner-Mohinder Singh, defendant No. 1 is for declaration that the plaintiff was the joint owner to the extent of 1/3rd share of the land, being joint Hindu coparcenary property along with the other defendants namely Tarsem Singh, brother of his father. The sale deeds dated 13.07.2007 and 16.07.2007, in favour of defendant No. 2, Tarsem Singh, executed by his father, late Joginder Singh and the grandfather of the plaintiff, was challenged, accordingly, being not legal, without necessity, without consideration and against the interests of the joint Hindu family property. The suit was defended by the present petitioner on the ground that his brother had purchased the suit land from his father vide the sale deeds which were valid and legal for consideration and the sales were effective. The defendant No. 2, on the other hand, also took a similar plea. After the framing of issues, the application was filed for treating the issue No. 4 regarding the maintainability of the suit as a preliminary issue. The said application was opposed by the plaintiff-respondent on the ground that if there was alienation without legal necessity and which is against the interests of the joint Hindu property, the suit was maintainable. The Trial Court dismissed the application, as noticed above and came to the conclusion that the judgment rendered in Raghubir Singh's case was not applicable in the facts and circumstances of the case and since it is a mixed question of law and fact. Learned Senior Counsel for respondent No. 1, on the other hand, has supported the impugned order by placing reliance upon the judgments of the Apex Court in Sunil Kumar & another v. Ram Parkash & others, 1988 2 SCC 77 and Subhod Kumar v. Bhagwant Namdeorao Mehetre & others, 2007 10 SCC 571 and also two judgments of this Court in Sital Singh v. Jamna Bai & others, 2004 138 PunLR 565 and Surinder Kaur & others v. Gursharan Singh & another, 2012 166 PunLR 317.

(3.) After hearing counsel for the parties, this Court is of the opinion that there is no merit in the present revision petition, on two accounts; firstly, admittedly, the property has already been alienated by the grandfather of the plaintiff to one of his sons, defendant No. 2. The sale deeds dated 13.07.2007 and 16.07.2007 are subject matter of challenge. The grandfather of the plaintiff expired on 25/26.11.2007 and the suit had been filed on 21.11.2007. The title of the property has already changed hands and the argument that the father of the plaintiff was still alive and therefore, he did not have a right to seek injunction during the lifetime of his father, is without any basis. The alienation has taken place and therefore, the suit was maintainable, in view of the judgment of the Apex Court rendered in Sunil Kumar's case wherein it was held that there was restriction to a coparcenary to file a suit for injunction but an exception had been made that once the alienation takes place then it could be challenged on the ground of lack of legal necessity. In the present case, as noticed above, a specific challenge has been laid on account of lack of consideration and there being no legal necessity. Relevant observations in Sunil Kumar's case read as under: