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 Page 1 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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.Page 2 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025
NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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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NEUTRAL CITATION
C/AO/245/2024 ORDER DATED: 07/03/2025
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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 Page 6 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 7 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 8 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 9 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 10 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 11 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 14 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined [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 of Page 15 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 16 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 17 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 18 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 19 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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:-Page 20 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025
NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined "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 only Page 21 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 22 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 share Page 23 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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."Page 24 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025
NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined [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.
Page 25 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined
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 Page 26 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 27 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025 NEUTRAL CITATION C/AO/245/2024 ORDER DATED: 07/03/2025 undefined 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 Page 28 of 28 Uploaded by MOHD MONIS(HC01900) on Wed Mar 12 2025 Downloaded on : Wed Mar 12 21:42:28 IST 2025