JUDGMENT
N.D.V. Bhat, J.
1. In this Appeal, the appellant has challenged the judgment and decree dated 30-1-1990 passed by the XV Additional City Civil Judge, Bangalore in O.S.No. 2701/1981. By the said judgment, the lower Court dismissed the suit of the plaintiff.
2. The facts relevant for the disposal of this Appeal, briefly stated, are as under:
Plaintiff filed a suit at O.S.No. 2701/81 against the defendants praying for a decree for permanent injunction restraining the defendants from dealing with the schedule property in any manner including entertaining into sale transaction with regard thereto or otherwise making waste or causing any encumbrances thereon and for other reliefs referred to in the prayer column. The suit schedule property is a house bearing No. 278, Hosahalli Extension, Bangalore measuring East to West 37′.6″ and North to South 45′ having the boundary referred to in the schedule. It is not in dispute that the said property was allotted to the husband of defendant-1 in the year 1963 by the Karnataka Housing Board (for short ‘KHB’) and a regular Sale Deed was executed in favour of the husband of defendant-1 on 20-11-1979 by virtue of Ex.D.56. However, it is the case of the plaintiff that he, husband of defendant-1 and others referred to in plaint para-1 constituted a joint family and the joint family has quite a good number of properties, and the suit property, according to the plaintiff, was, in
fact, purchased by the husband of defendant-1 with the assistance of the joint family property income. The husband of defendant-1 died on 12-12-1980. After the death of the husband of defendant-1, plaintiff, defendant-1 and others did continue as members of joint family and the joint family properties continued as joint family properties. However, according to plaintiff, defendants-3 and 4 who are relatives of defendant-1 in league with each other are trying to defraud the plaintiff by creating certain documents making it to believe that the suit property in question is the exclusive property of defendant-1. He has referred to the details in this behalf at para-5 of his plaint. On these allegations, in substance, he prayed for a decree for permanent injunction in terms referred to earlier.
3. The suit of the plaintiff was resisted by defendant-1 by her written statement. It was also resisted by defendants-3 and 4 by a separate written statement. In substance, defendant-1 took up the contention that plaintiff has no right, title or interest in or in respect of the suit property. It was also contended by defendant-1 that the property in question was the exclusive property of her husband. She has given the details in that behalf in the course of her written statement. She also took up a contention that a suit for mere relief of injunction is not maintainable. She prayed for the dismissal of the suit.
4. Defendants-3 and 4 in their written statement have asserted that plaintiff has no cause of action. In substance, they also took up a similar stand like the one taken by defendant-1. They prayed for the dismissal of the suit.
5. On the basis of these pleadings, the following issues were raised for discussion:
(1) Whether the plaintiff proves that he was in lawful possession on the date of suit? (2) Whether the plaintiff proves that the defendants are dealing with the suit property and entitled for permanent injunction? (3) What order? 6. Before the Court below, plaintiff examined himself as PW-1 and PWs-2 to 5 were examined for him. Ex.P1 to P13 were marked for him. Defendant-1 examined herself as DW-1. Ex.D1 to D57 were marked for her.
7. The lower Court on a consideration of me respective contentions raised by the parties took the view that a suit for bare injunction without seeking a declaration of title in respect of the property, in the facts and circumstances of the case, is not maintainable. In that view of the matter, the lower Court did not think it necessary to probe further into the question as to whether the suit property is a joint family property or not. In the result, the suit of the plaintiff came to be dismissed on the basis of the finding given on issue No. 2. Hence, the instant appeal.
8. I have heard the arguments of Sri H.L. Dattu, learned Counsel for the appellant and Sri S.V. Shastry, learned Counsel for respondent-1.
9. The Point that would arise for consideration in this Appeal is as to whether the suit of the plaintiff for a decree for permanent injunction is not maintainable.
10. The lower Court has taken the view that plaintiff’s title is challenged by defendant-1 It is also noticed that the lower Court has taken the view that the suit for injunction in the instant case is not a suit based on possession of the property. In that view of the matter, in substance, the lower Court has taken the view that the question of title would assume significance. Since according to the lower Court, the title of the plaintiff is challenged by the defendants, it took the view that a suit for injunction without seeking a declaration as to title is not maintainable. While reaching this conclusion, the lower Court has placed reliance on the Decision of this Court in B.M. SHANKARAPPA v. CHAIRMAN, C.I.T.B. AND ORS., RSA No. 296 of 1975 DD 29.10.1981. The lower Court incidentally also held that it is not as if defendant-1 would be a member of the joint family particularly, after the death of her husband and even assuming that the property is a joint family property, the status of defendant-1 would be that of a co-owner and it is not as if the co-owner has no right to transfer the property and transfer by a co-owner of a common property will be good to the extent to which the co-owner has got a right in it.
11. Sri Dattu, learned Counsel for the appellant contended that the Decision of this Court relied on by the Court below and alluded to earlier has no application to the facts of this case. Sri Dattu, argued that once when the plaintiff bases his suit for a decree for permanent injunction on the allegation that the property is a joint family property, the lower Court was required to go into that question and depending upon the finding on that question, the lower Court ought to have considered as to whether the final relief prayed for could not have been granted. Sri Dattu, learned Counsel submitted that such a course was absolutely necessary in order to avoid the multiplicity of proceedings.
12. On the other hand, Sri Shastry, learned Counsel for respondent-1 contended that the suit filed by plaintiff in the instant case is not the usual suit for a decree for permanent injunction based on possession. Dilating on this aspect, the learned Counsel contended that in such a situation i.e., in a suit for permanent injunction based on possession, the question of title will not arise for consideration. It is argued by Sri Shastry that in the instant case plaintiff wants to circumscribe the rights of defendant-1 in respect of the property in question on the allegation that he has also got a right in respect of the same which right is flatly denied by defendant-1. He, therefore, contended that plaintiff’s title is rendered cloudy and in order to clear that cloud, relief for declaration of title was absolutely necessary. The learned Counsel argued that a suit for injunction based on title is not like a suit for partition or suit for possession. It is argued by Sri Shastry that in a suit for partition or for that matter in a suit for possession which is based on title, the question of praying for declaration as such may not arise but in a suit for injunction which is based mainly on the question of title and when that title is denied even to the knowledge of the plaintiff even prior to the suit, suit for a declaration is a must. The learned Counsel argued that the ratio of the Decision of this Court in Shankarappa’s case would apply in such a situation.
13. I have given my anxious consideration to the submission made by the learned Counsel on either side.
14. It is noticed that undisputedly the property was allotted to the husband of defendant-1 by the Karnataka Housing Board back in the year 1963 by virtue of Ex.D.17 which is an allotment order. It is further noticed that at a later point of time, to wit, on 20-11-1979, an absolute sale deed was executed in favour of defendant-1’s husband by the K.H.B. At this juncture, it is indeed necessary to refer to certain allegations made in the plaint itself to see as to what was the provocation for plaintiff to file the suit in question. In this context, the allegations made in para-5 of the plaint are required to be culled out. It reads as under:
“The defendants-3 and 4, relations of 1st defendant, have been moving around her, rather suddenly appearing to save her, apparently to secure documents got up to appear as if the 1st defendant alone has been the owner with exclusive rights of present possession and alienation. And in this direction, they have been hatching a plan to knock off the family property with the aid and reportedly in the name of the 2nd defendant, an influential police officer as he happens to be. The 3rd defendant, has moved the 1st defendant to his house from the hospital much to the displeasure of the members of the family. The claim of a widow of an erstwhile coparcener does not relate to any specific property held by the family, but only to a right to a share; and until then only to joint residence and maintenance. The defendants, thus have no right to cause any sale or encumbrance upon the schedule property. In fact the defendants 2 – 4 doing it is a fraud on the family and a serious threat to the family; hence this suit for necessary injunctive and consequential reliefs.”
A careful perusal of the said para will give an inkling into the mind of the plaintiff as regards as to how he felt with reference to the dealings between defendant-1 on the one hand and defendants-3 and 4 on the other. Further defendant-1 has, in the course of her written statement, among other things, stated that she is absolutely entitled to the schedule property and she was competent to negotiate and enter into agreements for sale of the schedule property. It is also significant to notice here that plaintiff has also not chosen to amend his plaint. If the totality of the circumstances brought into being on record are discerned carefully it is not possible to say that this is a case where the title of the plaintiff is obvious and unassailable. It is in this context, the question as to whether the ratio of the Decision in Shankarappa’s case alluded to earlier is applicable to the facts of this case. The learned Single Judge of this Court (SABHAHIT, J.) has in the course of the said Judgment in para-8, observed as under:
“It is obvious that the defendants have disputed the title of the plaintiff. They have disputed the identity of the suit property as in the survey number alleged in the plaint. That being so, a suit for mere injunction without praying for declaration of title is not maintainable. It is not a case where the title of the plaintiff is obvious and unassailable. The title itself is challenged. That being so, injunction which is an equitable remedy cannot be issued unless the title is proved. There is no prayer in the suit for declaration of title. Therefore, I am constrained to hold that the suit itself is misconceived and the order of dismissal of the suit by the learned Civil Judge, in that way, is sustainable.”
(underlining supplied)
A careful perusal of the observation made by the learned single Judge would clearly go to show as to under what circumstances, declaration of title is necessary and as to under what circumstances declaration of title is not necessary. The observation culled out hereinabove is self explanatory and it is not necessary to elaborate. However, even at the risk of repetition, it needs to be stated at this stage that this is not a case where it can be said that plaintiff’s title in respect of the suit property is obvious and unassailable, having regard to the fact that the property admittedly stood in the name of the husband of defendant-1, the same having been allotted in his favour in the first instance by K.H.B. and thereafter sold to him absolutely. May be that it is possible to prove that a property is a joint family property though it is actually purchased by one of the members of the joint family. However, there is no presumption that a property which stands in the name of an individual is a joint family property or for that matter, the family possesses joint family property. It is not necessary to dilate on this aspect since all that is required to be seen in this case is as to whether the facts and circumstances of the case warrant a conclusion that plaintiff’s title is unassailable and obvious. Under these circumstances, it is clear that a declaration of title was a must. I hasten to add here that the question as to whether a declaration of title is necessary in a given case depends upon the facts of each case. The facts leading to the filing of this suit and various other factors will have to enter into Judicial verdict to decide the question as to whether the relief of declaration is required to be sought for. In the instant case, for the reasons stated earlier, a prayer for a declaration was a must. As pointed out earlier, plaintiff did not seek for amending the plaint either in the Court below or for that matter in this Court. In that view of the matter, the question of affording an opportunity to the plaintiff to amend the plaint also does not arise for consideration. Under these circumstances, it becomes difficult to hold that the finding given by the Court below is erroneous.
15. Even otherwise, it is required to be seen as to whether plaintiff’s suit for a permanent injunction in the way and manner as it brought by him is maintainable. As rightly pointed out by the Court below even if it is possible to conclude that the property purchased by the husband of defendant-1 was a joint family property or a coparcenery property, the same loses its characteristic of coparcenery property after the death of the husband of defendant-1 in the year 1980, having regard to the provisions of Section 6 of the Hindu Succession Act. As indicated therein, whenever a female heir referred to in Schedule-l of Section 14 of the Hindu Succession Act intervenes consequent on the death of a co-parcener, the co-parcenery is disrupted and the heirs of such a person will hold the property as co-owners and not by survivorship. In that view of the matter, it is clear that even assuming for the time being that the suit property was a co-parcenery property at one point of time after the death of the husband of defendant-1, the interest of the deceased would devolve by succession and her status with reference to the property in question is that of a co-owner. At this juncture, it is relevant to refer to the provisions of Section 44 of the Transfer of Property Act, which reads as under:
“Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.”
A careful perusal of the above provision would go to show that one co-owner is indeed entitled to sell his interest in a property in favour of anyone he likes though the nature of the remedy of the purchasers regarding a dwelling house will depend upon as to whom the interest is sold. In the instant case, plaintiff has prayed for a decree for permanent injunction restraining the defendants from dealing with the schedule property in any manner including entering into sale transactions with regard thereto or otherwise making waste or causing any encumbrances thereon. In the light of the provisions of Section 44 of the Transfer of Property Act, it is obvious that the sale, if any, executed by defendant-1 in favour of anybody will be good to the extent of her right and if she has got an absolute right in respect of the property, the vendee will take an absolute interest in the property. If she has got only an undivided interest in the property, the vendee will only step into her shoes. ‘Nemo dat quod non habet’ (no one gives what he does not possess) is an oft quoted principle which would apply in such a situation. Looked at from that point of view also plaintiff cannot circumscribe the rights of defendant-1 in the way and manner as he has sought for. If the whole matter is viewed from this angle also, the suit in the present form appears to be untenable. Sri Dattu, learned Counsel for the appellant contended that defendant-1 being issueless it is possible that her right and interest in the property will devolve upon plaintiff and other members of the family and looked at from that point of view the suit in the present form can be justified. Even otherwise, it is pointed out that a restricted relief atleast can be granted in favour of the plaintiff. In my opinion, the question of granting restricted relief does not arise having regard to the fact that the vendee does not get more than what the vendor has got and the right that he gets and nothing more than that.
16. For the reasons stated hereinabove, it is clear that the suit brought by the plaintiff is not maintainable. I may also observe here that neither the Court below nor this Court has chosen to give any finding on the question as to whether the property in question is a joint family property or whether it was a separate property of the husband of defendant-1. That is not a question which has arisen for consideration in this suit and that therefore, the question of giving a finding on that aspect did not arise. Whatever observations were made by this Court were made prima facie, for the purpose of seeing as to whether it can be said that plaintiff’s title to the suit property is obvious and unassailable.
17. Subject to the observations made hereinabove, the Appeal is liable to be dismissed, Accordingly Appeal is dismissed. In the facts and circumstances of the case, I make no order as to costs.
