Gujarat High Court
Madhuben Nathabhai Nakum W/O … vs Bhavan Jerambhai Nakum on 7 March, 2025
NEUTRAL CITATION
C/AO/245/2024 ORDER DATED: 07/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 245 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 245 of 2024
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MADHUBEN NATHABHAI NAKUM W/O MAHENDRABHAI PARMAR
Versus
BHAVAN JERAMBHAI NAKUM & ORS.
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Appearance:
DHRUVIK K PATEL(7769) for the Appellant(s) No. 1
MR FAIYAZ A SHAIKH(10984) for the Appellant(s) No. 1
MR. AADIT R SANJANWALA(9918) for the Respondent(s) No.
1,10,11,12,13,2,3,4,5,6,7,8,9
THAKKAR AND PAHWA ADVOCATES(1357) for the Respondent(s) No.
14,15,16,17,18
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/03/2025
ORAL ORDER
1. The present Appeal From Order is filed under Order XLIII
Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred
to as CPC) by the original plaintiff of Special Civil Suit No.31
of 2024, pending before the Civil Judge, Senior Division,
Jamnagar.
2. The parties will be referred to as per their original
position before the trial court.
3. The short facts appear to be that:-
3.1 The plaintiff and defendant Nos. 1 to 13 are close
family members and some of them are siblings. The father of
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the plaintiff appears to be the owner of lands situated in
Jamnagar bearing revenue survey Revenue Survey No. 788/1
admeasuring 29,947 Sq mtrs., Revenue Survey No. 977
admeasuring 4,350 Sq mtrs., Revenue Survey Nos. 1027/1
admeasuring 5,566 Sq mtrs, Revenue Survey Nos. 1027/2
admeasuring 5,566 Sq mtrs. Revenue Survey No. 1028/1
admeasuring 12,434 Sq mtrs. And Revenue Survey No. 1028/2
admeasuring 12,434 Sq mtrs. (hereinafter referred to as the
suit properties). As per the case of the plaintiff, there are in
total 11 legal heirs of her father, thereby entitling her to a
1/11 share in the suit property which according to her is a
coparcenary properties. Thus, she has filed the suit for
partition, claiming her right in the suit properties.
3.2 The father of the plaintiff, namely, Satvara Natha
Raghav, who died on 01.02.1992 and later on, the mother of
the plaintiff died on 09.09.2007. As per the case of the
plaintiff, some of the Class-I legal heirs of her father and some
of her sisters relinquished their right from suit properties.
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3.3 The plaintiff is one of the Class-I legal heirs of the
original owner of the property in question and that is how she
derives her share in the suit property.
3.4 That on 13.06.2023, the plaintiff had given a public
notice in the newspaper stating her right qua the property in
question whilst also stating that that said properties are jointly
owned by her and the defendant Nos. 1 to 13 and 19 to 27
and stated that without her express and written consent the
remaining co-owners shall not sale or part with the property in
any means.
3.5 That the defendant nos. 1 to 13 executed following
sale deed in favor of the defendant nos. 14 to 18 of the suit
properties qua their share in the suit property.
Date Sale Deed Survey No. Sold to Defendant
No. Number
21.08.2024 8020/2024 788/1 14 and 15
21.08.2024 8021/2024 1027/1 & 1027/2 16
21.08.2024 8022/2024 977 14
21.08.2024 8023/2024 1028/1 17 and 18
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3.6 That on 17.09.2024, the plaintiff had filed a written
objection against the transfer of the properties before the
Mamlatdar, Jamnagar.
3.7 That on 08.10.2024, Special Civil Suit No. 31/2024
came to be filed before the Additional Senior Civil Judge,
Jamnagar by the plaintiff against the defendants for partition
and seeking separate possession and permanent injunction
along with receiving of mense’ profit from the property in
question as well cancellation of sale deed executed by
defendant no. 1 to 13.
3.8 That on 09.10.2024, by way of the order dated
09.10.2024 an ex-parte status quo had been granted.
3.9 That on 24.10.2024, the plaintiff had given an
application seeking extension of status quo granted by way of
order dated 09.10.2024 (Exh.15) whereas, the defendant Nos.
14, 15 and 16 had given an application seeking vacation of ex-
parte injunction granted by way of order dated 09.10.2024
(Exh.20).
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and 20 whereby the application seeking extension of status quo
granted earlier was allowed and the application for vacating
ex-parte injunction after hearing the parties had been extended
till the final disposal of suit on a condition that the Advocate
for plaintiff shall conclude his argument on Exh. 5 on
06.11.2024.
3.11 That on 28.10.2024, the defendant Nos. 14 to 18
approached this Court by way of appeal from order No. 235
of 2024 challenging the order dated 09.10.2024 and 24.10.2024
wherein, this Court was pleased to simply issue notice.
3.12 That on 06.11.2024, the Additional Senior Civil Judge,
Jamnagar, suo moto passes an order under Exh. 15 and 20
thereby correcting the said order, which had been passed by
him and extended the stay until the final disposal of the
interim injunction application at Exh. 5 instead of the final
disposal of the suit.
3.13 That on 11.11.2024, the Additional Senior Civil Judge,
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Jamnagar passed an order below Exh. 5 after hearing the
parties rejecting the interim injunction application.
4. Being aggrieved and dissatisfied with the order passed by
the Additional Senior Civil Judge, Jamnagar below Exh.5, the
present appeal from order has been filed.
5. SUBMISSION OF THE APPELLANT-PLAINTIFF
5.1 Learned Senior Counsel Mr. Asim Pandya with learned
advocates Mr. Dhruvik K Patel and Faiyaz A Shaikh would
submit that in the present matter, defendant nos. 1 to 13 and
14 to 18 have explicitly admitted the plaintiff’s share in the
property. Defendant Nos.1 to 13 have admitted in Exh. 22 in
Para 7 that they have no objection to the plaintiff’s demand
for separation of her share. Defendant Nos. 14 to 16 (third-
party purchasers) also stated that they have no objection to the
partition.
5.2 Learned Senior Counsel Mr.pandya would submit that
there was no factual dispute regarding ownership and the issue
of partition was effectively uncontested. Learned Senior Counsel
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Mr.Pandya would submit that given these admissions, the Trial
Court had the authority to pass a partial judgment, at least
regarding the plaintiff’s ownership rights and her share in the
property.
5.3 Learned Senior Counsel Mr. Pandya would submit that
this would have eliminated the need for extended litigation on
the plaintiff’s entitlement and would have allowed the court to
proceed directly to partition the property or protect her share
until final disposal.
5.4 Learned Senior Counsel Mr. Pandya would submit that
the Trial Court could have maintained the status quo and
issued appropriate directions to ensure that no further
alienation of the property took place until the partition process
was concluded. A decree under Order 12 Rule 6 of CPC would
have protected the parties rights while preventing future
transactions that could lead to multiplicity of litigation.
5.5 Learned Senior Counsel Mr.Pandya would submit that
by rejecting Exh. 5 out rightly, the trial Court ignored the
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clear admissions made by the defendants, thereby, allowing
potential third-party transactions that could further complicate
the matter. He would further submit that the plaintiff, despite
having an undisputed legal right, was denied necessary interim
relief, thereby, placing her at a disadvantage and exposing her
share to potential unauthorized transactions.
5.6 Learned Senior Counsel Mr. Pandya would submit that
the Trial Court had clear procedural options to ensure justice
was served without out rightly rejecting Exh. 5. The rejection
of Exh. 5 was premature and unnecessary, as the court could
have passed a partial judgment under Order 12 Rule 6 of CPC
based on admissions made by the defendants, thereby,
recognizing the plaintiff’s undisputed share; framed preliminary
issues under Order 15 of CPC, ensuring that essential questions
related to ownership and partition were resolved before
proceeding with extensive litigation and maintained the status
quo to prevent further alienation of the property, thereby,
protecting all parties’ interests and avoiding multiplicity of
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legal proceedings.
5.7 Learned Senior Counsel Mr. Pandya would submit that
the trial court overlooked the fundamental objective of an
interim injunction, which is to prevent further transfers and
maintain status quo of the suit property. He would further
submit that by rejecting Exh. 5 application, the court allowed
potential future transactions that could complicate the dispute,
leading to multiplicity of suits and making the final resolution
difficult.
5.8 Learned Senior Counsel Mr. Pandya would submit that
the Trial Court failed to appreciate the need for protection of
rights until the final adjudication of the suit. He would further
submit that the Trial Court had previously granted ex-parte
status quo on 09.10.2024 and again, on 24.10.2024, the trial
court extended the status quo till the final disposal of the suit,
affirming that the plaintiff’s rights required protection.
However, in rejecting Exh. 5, the trial court contradicted these
prior findings without any substantial reasoning, making the
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decision arbitrary.
5.9 Learned Senior Counsel Mr. Pandya would submit that
the Trial Court failed to acknowledge that Defendant Nos. 1 to
13 described the entire suit property in the registered sale
deeds despite lacking the legal right to do so. He would
further submit that the assumption that only their share was
transferred ignored documentary evidence, as the sale deeds
did not demarcate the sold portions and instead referred to the
entire land. The trial court failed to appreciate that a co-sharer
cannot describe the entire undivided property as transferred,
making the sale deeds legally questionable. Learned Senior
Counsel Mr.Pandya would submit that this oversight resulted in
an incorrect legal conclusion that the sale only affected the
defendants’ share.
5.10 Lastly, learned Senior Counsel Mr. Pandya would
submit that granting the injunction would have protected all
parties, ensuring that no further transactions took place, no
additional third-party rights were created, the final decision on
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partition would remain straightforward. Whereas, by rejecting
Exh. 5, the trial court exposed the suit property to further
sales and legal complications.
5.11 Making the above submission, he would request this
Court to allow the present Appeal from Order.
6. SUBMISSION OF THE RESPONDENTS – DEFENDANTS
6.1 Learned Senior Counsel Mr. R.S.Sanjanwala with
learned advocate Mr. Aadit R. Sanjanwala appearing for
respondent Nos.1 to 13 would submit that the Appeal from
Order is filed to challenge order dated 11.11.2024 dismissing
the Plaintiff’s Exh.5 application. In the Exh. 5 application, the
only prayer is to restrain the Defendants from not transferring
the suit properties. In the plaint, the prayer is to partition and
obtain possession of the suit lands and cancel the four sale
deeds dated 06.09.2024 executed for undivided share in favour
of the purchasers.
6.2 Learned Senior Counsel Mr. Sanjanwala would further
submit that the sale in favour of the purchasers for undivided
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interest in the suit lands is legally permissible and there is no
infirmity in the sale, which is also conceded by the Plaintiffs.
Section 44 of the Transfer of Property Act permits and
recognizes transfer of undivided interest in a land.
6.3 Learned Senior Counsel Mr. Sanjanwala would further
submit that this Court in First Appeal No. 538 of 2015, has
also enunciated on the principle that transfer of undivided
interest by co-sharers is permissible and a sale deed
transferring undivided interest cannot be cancelled by Court.
6.4 Learned Senior Counsel Mr. Sanjanwala would further
submit that thus, the purchaser cannot be restrained from
dealing with his undivided share in the land.
6.5 Learned Senior Counsel Mr. Sanjanwala would further
submit that in light of this legal position, there is no perversity
in the discretion exercised by the Trial Court to reject the
injunction application and the discretion exercised is in
conformity with the law.
6.6 Lastly, Learned Senior Counsel Mr. Sanjanwala would
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further submit that in this background, it is also pertinent to
note that the factum that the sale in favour of the purchasers
was in the pipeline was known to the Plaintiffs at least since
June, 2023, when they issued a paper notice on 13.06.2023 in
respect of the same. However, the Plaintiffs waited till the sale
deeds were executed on 06.09.2024 and, thereafter, filed the
suit on 08.10.2024. He would submit that the discretion to
grant the equitable relief of injunction may not be exercised in
favour of the Plaintiff since there is gross delay on their part
and the suit is not bonafide but is filed for reasons which are
evident.
6.7 To buttress his argument, he would rely upon the
decision of the Honorable Supreme Court of India in the case
of Ramakant Ambalal Choksi v/s Harish Ambalal Choksi &
others, reported in 2024 SCC Online SC 3438 and a decision of
this Court, in the case of Rameshbhia Ramjibhai Sorathiya &
Ors. vs. Dilipbhia Kalyanji Patel and others reported in AIR
2019 Guj 194.
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7. Learned advocate appearing for Thakkar and Pahwa
Advocates on behalf of respondent Nos.15 to 18 and Mr.
Prerak Oza, learned advocate appearing for respondents Nos.19
to 23 and 25 to 28 would adopt the argument of learned
senior counsel Mr.Sanjanwala appearing for respondent Nos.1
to 13.
8. No other and further submissions are made.
9. Heard learned advocates for the respective parties and
have gone through the documents available with the appeal.
ANALYSIS
10. Before adverting to the issue germane in the appeal, I
would like to refer and rely upon the decision of the
Honorable Supreme Court of India in the case of Ramakant
Ambalal Choksi (Supra), wherein the scope and power of
Appellate Court while dealing with Appeal under Order XLIII
Rule 1 of CPC is well defined and held as under:-
“APPELLATE JURISDICTION UNDER ORDER 43 OF THE CPC
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[20] Order 43 of the CPC specifies the orders against which an
appeal lies. Sub-Rule (r) of Rule 1 of the said order provides that an
appeal would lie against an order made under Rules 1, 2, 2A, 4 and
10 of Order 39 of the CPC respectively.
[21] The law in relation to the scope of an appeal against grant or
nongrant of interim injunction was laid down by this Court in Wander
Ltd. v. Antox India P. Ltd.,1990 Supp SCC 727. Antox brought an
action of passing off against Wander with respect to the mark Cal-
De-Ce. The trial court declined Antox’s plea for an interim injunction,
however, on appeal the High Court reversed the findings of the trial
judge. This Court, upon due consideration of the matter, took notice
of two egregious errors said to have been committed by the High
Court:
a. First, as regards the scope and nature of the appeals before
it and the limitations on the powers of the appellate court to
substitute its own discretion in an appeal preferred against a
discretionary order; and
b. Secondly, the weakness in ratiocination as to the quality of
Antox’s alleged user of the trademark on which the passing off
action is founded.
[22] With regards to (a), this Court held thus:
“In such appeals, the appellate court will not interfere
with the exercise of discretion of the court of the first
instance and substitute its own discretion, except
where the discretion has been shown to have been
exercised arbitrarily or capriciously or perversely, or
where the court had ignored the settled principles of
law regulating grant or refusal of interlocutory
injunctions … the appellate court will not reassess the
material and seek to reach a conclusion different from
the one reached by the court below … If the discretion
has been exercised by the trial court reasonably and
in a judicial manner the fact that the appellate court
would have taken a different view may not justify
interference with the trial court’s exercise of
discretion.”
[23] This Court, while arriving at the above findings, relied on its
earlier judgment in Printers (Mysore) v Pothan Joseph, 1960 SCC
OnlineSC 62 where it was held thus:
“[…] as has been observed by Viscount Simon LC in
Charles Osenton & Co v Johnston – the law as to reversal
by a court of appeal of an order made by a judge below in
the exercise of his/her discretion is well established, and
any difficulty that arises is due only to the application ofPage 15 of 28
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well-settled principles in an individual case.”
[24] It is pertinent to note that in Printers (supra) this Court had held
that ignoring relevant facts is also a ground for interfering with the
discretion exercised by the trial court. Furthermore, Viscount Simon
LC in Charles Osenton & Co v Johnston, 1942 AC 130 , after stating
the above, went on to quote Lord Wright’s decision in Evans v.
Bartlam, 1937 AC 473:
“It is clear that the court of appeal should not interfere with
the discretion of a judge acting within his jurisdiction
unless the court is clearly satisfied that he was wrong. But
the court is not entitled simply to say that if the judge had
jurisdiction and had all the facts before him, the court of
appeal cannot review his order unless he is shown to have
applied a wrong principle. The court must, if necessary,
examine anew the relevant facts and circumstances in
order to exercise a discretion by way of review which may
reverse or vary the order.”
[25] In Evans (supra) case, Lord Wright made it clear that while
adjudicating upon the discretion exercised by the trial court, the
appellate court is obliged to consider the case put forward by the
appellant in favour of its argument that the trial court exercised its
discretion arbitrarily or incorrectly in the circumstances.
[26] What flows from a plain reading of the decisions in Evans
(supra) and Charles Osenton (supra) is that an appellate court,
even while deciding an appeal against a discretionary order
granting an interim injunction, has to:
a. Examine whether the discretion has been properly exercised,
i.e. examine whether the discretion exercised is not arbitrary,
capricious or contrary to the principles of law; and
b. In addition to the above, an appellate court may in a given
case have to adjudicate on facts even in such discretionary
orders.
[27] The principles of law explained by this Court in Wander’s
(supra) have been reiterated in a number of subsequent decisions of
this Court. However, over a period of time the test laid down by this
Court as regards the scope of interference has been made more
stringent. The emphasis is now more on perversity rather than a
mere error of fact or law in the order granting injunction pending the
final adjudication of the suit.
[28] In Neon Laboratories Ltd. v. Medical Technologies Ltd.,
2016 2 SCC 672 this Court held that the Appellate Court should
not flimsily, whimsically or lightly interfere in the exercise of
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discretion by a subordinate court unless such exercise is
palpably perverse. Perversity can pertain to the understanding
of law or the appreciation of pleadings or evidence. In other
words, the Court took the view that to interfere against an order
granting or declining to grant a temporary injunction, perversity has
to be demonstrated in the finding of the trial court.
[29] In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 9
SCC 221 this Court emphasised on the principles laid down in
Wander (supra) and observed that while the view taken by the
appellate court may be an equally possible view, the mere possibility
of taking such a view must not form the basis for setting aside the
decision arrived at by the trial court in exercise of its discretion under
Order 39 of the CPC. The basis for substituting the view of the trial
court should be malafides, capriciousness, arbitrariness or
perversity in the order of the trial court. The relevant observations
are extracted below:
“20. In a situation where the learned trial court on a
consideration of the respective cases of the parties and
the documents laid before it was of the view that the
entitlement of the plaintiffs to an order of interim
mandatory injunction was in serious doubt, the Appellate
Court could not have interfered with the exercise of
discretion by the learned Trial Judge unless such exercise
was found to be palpably incorrect or untenable. The
reasons that weighed with the learned Trial Judge, as
already noticed, according to us, do not indicate that the
view taken is not a possible view. The Appellate Court,
therefore, should not have substituted its views in the
matter merely on the ground that in its opinion the facts of
the case call for a different conclusion. Such an exercise is
not the correct parameter for exercise of jurisdiction while
hearing an appeal against a discretionary order. While we
must not be understood to have said that the Appellate
Court was wrong in its conclusions what is sought to be
emphasized is that as long as the view of the trial court
was a possible view the Appellate Court should not have
interfered with the same following the virtually settled
principles of law in this regard as laid down by this Court in
Wander Ltd. v. Antox India (P) Ltd.”
(Emphasis supplied)
[30] This Court in Shyam Sel & Power Ltd. v. Shyam Steel Industries
Ltd., 2023 1 SCC 634 observed that the hierarchy of the trial court
and the appellate court exists so that the trial court exercises its
discretion upon the settled principles of law. An appellate court, after
the findings of the trial court are recorded, has an advantage of
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appreciating the view taken by the trial judge and examining the
correctness or otherwise thereof within the limited area available. It
further observed that if the appellate court itself decides the matters
required to be decided by the trial court, there would be no necessity
to have the hierarchy of courts.
[31] This Court in Monsanto Technology LLC v. Nuziveedu Seeds
Ltd., 2019 3 SCC 381, observed that the appellate court should not
usurp the jurisdiction of the Single Judge to decide as to whether the
tests of prima facie case, balance of convenience and irreparable
injury are made out in the case or not.
[32] The appellate court in an appeal from an interlocutory order
granting or declining to grant interim injunction is only required to
adjudicate the validity of such order applying the well settled
principles governing the scope of jurisdiction of appellate court
under Order 43 of the CPC which have been reiterated in various
other decisions of this Court. The appellate court should not assume
unlimited jurisdiction and should guide its powers within the contours
laid down in the Wander (supra) case.”
(Emphasis Supplied)
11. Keeping in mind the ratio of the Hon’ble Supreme Court
of India in the case of Ramakant Ambalal Choksi (Supra) as
well as Wander Ltd V/s Antox India P. Ltd. reported in 1990
(1) Supp. SCC 727, I would like to examine the claim of the
plaintiff as well as the impugned judgment and order passed
by the trial court, thereby rejecting the impugned injunction
application.
12. It remain undisputed before the trial court that all suit
properties are coparcenary properties, wherein the plaintiff, as
well as her siblings, are co-owners of the suit properties. The
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plaintiff has a 1/11 share in the suit properties.
13. The defendant Nos. 1 to 13 appears to have transferred
their undivided share in favor of other defendant Nos.14 to 18
by way of an execution of a sale deed, which is referred to
hereinabove.
14. The defendants Nos.1 to 13 were entitled to sell their
undivided share in the suit properties even before any actual
partition took place. Such a mode of transfer is permissible
under law. An undivided share can be sold by co-owners to
third parties, which is well recognized and permissible as per
Section 44 of the Transfer of Property Act. Section 44 of the
Transfer of Property Act reads as under:-
44. Transfer by one co-owner.–
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
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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.
15. Thus, in view of the aforesaid provision of law, there is
no illegality by defendant Nos.1 to 13 while executing the sale
deed in favor of defendant Nos.14 to 18. Once, defendants
Nos.14 to 18 become co-owners of the suit properties, they can
very well ask for partition of the suit properties or further sell
the properties if so required.
16. The Trial Court has also taken note of the judgment
passed by this court in the case of Rameshbhia Ramjibhai
Sorathiya (Supra) (by his Lordship Mr.Justice J.B. Pardiwala as
he then was), wherein it has been so held as under:-
[13] Although without there being any physical formal partition of an
undivided landed property, a co-sharer cannot put a vendee in
possession yet such a co-sharer definitely has a right to transfer his
undivided share. Reliance in this regard may be placed to a decision
of the Supreme Court in M. V. S. Manikayala Rao Vs. M.
Narasimhaswami & Ors. 1966 AIR(SC) 470, wherein the Court stated
as follows:-
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“5. …Now, it is well settled that the purchaser of a co-
parcener’s undivided interest in the joint family property is
not entitled to possession of what he had purchased. His
only right is to sue for partition of the property and ask for
allotment to him of that which, on partition, might be found
to fall to the share of the co- parcener whose share he
had purchased.”
[14] It may be mentioned herein that the aforesaid findings and the
conclusions were recorded by the Supreme Court by placing reliance
upon its earlier judgment in Sidheshwar Mukherjee Vs. Bhubneshwar
Prasad Narain Singh & Ors. 1953 AIR(SC) 487, wherein the Court
held as under:-
“11. …All that (vendee) purchased at the execution sale,
was the undivided interest of co-parcener in the joint
property. He did not acquire title to any defined share in
the property and was not entitled to joint possession from
the date of his purchase. He could work-out his rights
only by a suit for partition and his right to possession
would date from the period when a specific allotment was
made in his favour.”
(Emphasis added)
[15] In Ramdas Vs. Sitabai And Others, 2009 7 SCC 444, the
Supreme Court observed in Paragraph-19 as under:-
“19. In view of the aforesaid position there could be no
dispute with regard to the fact that an undivided share of
co-sharer may be a subject matter of sale, but possession
cannot be handed over to the vendee unless the property
is partitioned by metes and bounds amicably and through
mutual settlement or by a decree of the Court.”
[16] The Civil Court completely failed to keep the aforesaid position of
law in mind before deciding the suit. I may also refer to a decision of
the Supreme Court in the case of A. Abdul Rashid Khan (Dead) And
Others Vs. P .A. K. A. Shahul Hamid And Others 2000 10 SCC 636,
wherein the Supreme Court dealt with the Sections-10 and 22 of the
Specific Relief Act, 1963. I may quote the relevant observations as
contained in Paragraph-14.
“14. Thus we have no hesitation to hold, even where any
property is held jointly, and once any party to the contract
has agreed to sell such joint property agreement, then,
even if other co-sharer has not joined at least to the extent
of his share, he is bound to execute, the sale deed.
However, in the absence of other co-sharer there could not
be any decree of any specified part of the property to be
partitioned and possession given. The decree could onlyPage 21 of 28
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be to the extent of transferring the share of the Appellants
in such property to other such contracting party. In the
present case, it is not in dispute that the Appellants have
5/6 share in the property. So, the Plaintiffs suit for specific
performance to the extent of this 5/6th share was rightly
decreed by the High Court which requires no interference.”
[17] In the case on hand, the original plaintiff is not disputing the
share of his two brothers and two sisters. His only objection is that
without his consent and without the suit-property being partitioned, his
two brothers and two sisters could not have transferred their individual
share in the suit-property in favour of the appellants. This objection
raised by the plaintiff is without any substance and not tenable in law.
In such circumstances, I have no hesitation in coming to the
conclusion that the Civil Court committed a serious error in declaring
the sale-deed Exh.186, dated 15/11/2010 as null and void. To put it in
other words, the Civil Court committed an error in cancelling the sale-
deed, Exh.186. Once again at the cost of repetition, I state that a
purchaser of a co-parcener’s undivided interest in the joint family
property is not entitled to possession of what he had purchased. At
the same time, if he has purchased, then he has a right to sue for
partition of the property and ask for allotment of his share in the suit-
property. This is exactly what has been prayed for in the counter
claim. At this stage, I may refer to and rely upon a decision of the
Supreme Court in the case ofGajara Vishnu Gosavi Vs. Prakash
Nanasaheb Kamble And Others, 2009 10 SCC 654, more particularly,
the observation made by the Supreme Court as contained in
Paragraph-13.
“13. …Thus, in view of the above, the law emerges to the
effect that in a given case an undivided share of a co-
parcener can be a subject matter of sale/transfer, but
possession cannot be handed over to the vendee unless
the property is partitioned by metes and bounds, either by
the decree of a Court in a partition suit, or by settlement
among the co-sharers.”
[18] The Principles of law applicable to the fact of this case, has been
very succinctly explained by a Full Bench of the Punjab & Haryana
High Court in the case of Bhartu Vs. Ram Sarup, 1981 PunLJ 204,
wherein, a question of law, which the Full Bench was called upon to
answer was as under:-
“Whether the sale of a specific portion of land described
by particular Khasra numbers by a co-owner out of the
joint Khewat would be a sale of share out of the joint land
and pre-emptible under Section 15(1)(b) of the Punjab
Pre-emption.”
[19] While answering the aforesaid question of law, the Full Bench
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observed as under:-
“…When a co-sharer is in possession exclusively of
some portion of the joint holding, he is in possession
thereof as a co-sharer and is entitled to continue in its
possession if it is not more than his share till the joint
holding is partitioned. It is also undisputed that a vendor
cannot sell any property with better rights than he himself
has. Consequently, when a co-sharer sells his share in
the joint holding or any portion thereof and puts the
vendee into possession of the land in his possession,
what he transfers is his right as co-sharer in the said land
and the right to remain in its exclusive possession till the
joint holding is partitioned amongst all the co-sharers. It
was on this basis that a Division Bench of the Lahore
High Court in Sukhdev v. Parsi plaintiff and others,, 1940
AIR(Lah) 473, held that a co-sharer who is in exclusive
possession of any portion of a joint khata can transfer
that portion subject to adjustment of the rights of the
other co-sharers therein at the time of partition and that
other co-sharer’s right will be sufficiently safeguarded if
they are granted a decree by giving them a declaration
that the possession of the transferees in the lands in
dispute will be that of co-sharers, subject to adjustment
at the time of partition. As is well-known, a declaratory
decree is nothing but a judicial recognition of the existing
rights and such a decree does not tend to create any
rights. The passing of the declaratory decree, therefore,
shows beyond doubt that what the vendee gets in the
transfer from a co-sharer is the right of that co-sharer
and not exclusive ownership of any portion of joint land.
It is also undisputed that the right of preemption is
available not only when a co-sharer sells the whole of his
share but also when he sells a portion thereof. When a
co-owner describes the land sold out of his share not in
terms of a fractional share of the holding but in terms of
measurement and khasra numbers even then he sells
nothing but his rights as co-sharer in the joint holding i.e.
a portion of his share therein. The share in the joint
holding according to the dictionary meaning also does
not mean a fractional share and instead means a definite
portion of property owned by a number of persons in
common.”
“…..The rights of a transferee from a co-owner are not
entirely dependent on judicial decisions but are regulated
by section 44 of the Transfer of Property Act which provides
that where one or two or more co-owners of the immovable
property legally competent in that behalf transfers his sharePage 23 of 28
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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.
According to this statutory provision also what transferee
gets is the right of the transferor to joint possession and to
enforce a partition of the same irrespective of the fact
whether the property sold is fractional share or specified
portion, exclusively in possession of the transferor. Again, it
cannot be disputed that when a co-sharer is in exclusive
possession of the specified portion of the joint holding, he is
in possession thereof as a co-sharer and all the other co-
sharers continue to be in its constructive possession. By the
transfer of that land by one co-owner, can it be said that
other cosh-arers cease to be co-sharers in that land or to be
in its constructive possession. The answer obviously would
be in the negative because the right of the other co-sharers
is either to seek a declaration from the Court as held in
Sukh Dev’s case (supra) that the vendee is in possession
only as a co-sharer or can initiate proceedings for partition
of the joint holding including the land transferred. If the
other co-sharers continue to be co-sharers in the land
transferred even though comprised of specific khasra
numbers how can it be said that what is sold is something
other than the share out of the joint holding. That the sale of
specific portion of land out of joint holding by one of the co-
owners is nothing but a sale of a share out of the joint
holding, would be further elucidated if we take the example
of a sale where a co-owner sells the land comprised of a
particular khasra number which is not in his possession but
is within his share in the joint holding. For example, ‘A’ who
is joint owner of one-fourth share in the joint holding
measuring 100 bighas sells the land measuring 10 bighas
bearing khasra numbers ‘X’ and ‘Y’ which are not in
possession. On the basis of this sale, the vendee can
neither claim himself to be a transferee of the said land nor
can he claim its possession from other co-owners in
possession thereof. The effect in law of such a transfer
would be only that the vendee shall be entitled 10 bighas of
land out of the share of his vendor at the time of partition or
prior thereto a decree for joint possession to the extent of
the land purchased by him. Consequently, the effect in law
of sale of even of specified portion of joint land is that it is
only a sale of portion of share by one of the co-owners.”
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[20] The next question, which I need to consider in this First Appeal is
with regard to the counter claim. I am of the view that I should remit
the counter claim to the Civil Court for fresh consideration. Having
taken the view that the sale-deed, Exh.186 is absolutely valid, the
next step in the process should be to determine the share of the
original defendants nos.1 to 4 and the plaintiff and thereafter, pass an
appropriate decree of partition in accordance with the provisions of
Order 20 Rule 18 of the CPC as the suit-property is an agricultural
land.
[22] In the result, this First Appeal succeeds in part. The judgment
and decree passed by the Civil Court cancelling the sale-deed,
Exh.186 is hereby quashed and set aside. It is hereby declared that
the sale-deed bearing Registration No.2560, Exh.186, dated
15/11/2010 is a valid document. It is hereby further declared that the
original defendants nos.1 to 4 had the legal right to transfer their
undivided share in the suit-property in favour of the appellants herein.”
17. Apart from the said legal position, the conduct of the
plaintiff is also required to be considered, which is correctly
observed by the trial court while not granting an injunction in
favor of the plaintiff.
18. It appears that since June 2023, the plaintiff was aware
that original defendant Nos.1 to 13 were intending to sell their
rights in the suit properties, which can be confirmed from the
paper notice dated 13th June, 2023. Nonetheless, after
execution of the sale deed in favor of defendant nos.14 to 18
on 21.08.2024 or 06.09.2024 respectively, later on, the plaintiff
filed the suit on 08.10.2024.
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19. Thus, in view of the aforesaid facts and the position of
law, the trial court has correctly observed that the plaintiff has
no prima facie case, thereby, no balance of convenience and
irreparable loss is in her favor.
20. I am in complete agreement with the findings given by
the trial court while rejecting the application. The order is
neither perverse nor erroneous nor arbitrary, and in view of
the ratio fixed by the Hon’ble Supreme Court of India in the
case of Ramakant Ambalal Choksi (Supra), this Court would
not like to interfere with the discretionary order passed by the
trial court.
21. At this stage, it is also taken note of the submissions
made by learned advocate Mr. Pandya, that when defendants,
who happen to be family members of the plaintiff, have
admitted the right of the plaintiff in the properties and have
not disputed her claim the trial court ought to have passed a
preliminary decree by exercising its power under Order 12,
Rule 6 of CPC and ought to have framed the primary issue
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under Order 15 of CPC.
22. The scope of the present appeal is confined to the
injunction application only, wherein, as stated hereinabove,
this court has not found any error on the part of the trial
court while rejecting the injunction application of the plaintiff.
23. As far as the reliefs that are now canvassed before this
court are concerned, I would not like to examine such aspects,
as they are beyond the purview of Order XLIII of CPC.
24. Nonetheless, it is always open for the plaintiff to file an
appropriate application before the trial court, seeking other
reliefs apart from the injunction.
25. It goes without saying that, as and when such an
application is filed by the plaintiff, after giving an opportunity
of hearing to all parties concerned, including resisting such
applications so filed by the plaintiff, the trial court may decide
the same in accordance with law.
26. With the aforesaid observations, discussions and reasons,
I am of the opinion that there is no merit in the present
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appeal, which requires to be dismissed. It is hereby DISMISSED
with no order as to costs. The connected civil application is
also disposed of accordingly.
(MAULIK J.SHELAT,J)
MOHD MONIS
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