Calcutta High Court (Appellete Side)
Ashoka Rani Hazra vs Pijush Kanti Hazra & Ors on 2 November, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
F.M.A. 3440 of 2015
with
CAN 6027 of 2015
Ashoka Rani Hazra
versus
Pijush Kanti Hazra & Ors.
For the Defendant/Appellant : Mr. Ayan Banerjee,
Mr. Soumo Chaudhury,
Ms. Debasree Dhamali.
For the Plaintiffs/Respondent : Mr. Rwitendra Banerjee.
Nos. 1 to 4.
Heard On : 02-11-2016. Judgement On : 02-11-2016.
Jyotirmay Bhattacharya, J. : This first miscellaneous appeal is directed against an order being No. 8 dated 13th May, 2015 passed by the learned Civil Judge (Senior Division), Arambagh in Title Suit No. 104 of 2014.
Plaintiffs/respondent nos. 1 to 4 are represented by Mr. Banerjee, learned advocate. Respondent no.5 remains unrepresented in spite of service. Let the affidavit-of-service filed in Court today be kept with the record.
This appeal was admitted for hearing on 25th August, 2015. Today when the application for interim relief filed in connection with this appeal was taken up for hearing, we are invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper book in this appeal. We are informed by the learned counsel appearing for the parties that all relevant papers which are necessary for disposal of this appeal are filed along with the interlocutory application. As such, we have decided to dispose of the appeal itself on the papers available before us by dispensing with the requirement of filing paper book in this appeal.
Let us now consider the merit of the instant appeal in the facts of the present case.
The plaintiffs filed a suit for partition against their co-sharers. After filing the suit, the plaintiffs filed an application for injunction for restraining the defendants from transferring their shares in the suit property till the disposal of the suit. The learned Trial Judge was pleased to pass an interim order of injunction on 22nd December, 2014 vide Order No. 02 directing the parties to maintain status quo regarding title in respect of the suit property till 22nd January, 2015. The said interim order was passed by the learned Trial Judge by holding, inter alia, that if a co-sharer is allowed to transfer his share in the joint property, there will be multiplicity of proceedings. Holding as such, the aforesaid interim order of injunction was passed and the said interim order of injunction was extended from time to time.
The defendant no.1/appellant who is admittedly a co-sharer of the joint property sought for permission to sell her share in the joint property. As such, she applied for relaxation of the interim order of injunction. It was contended by her that she urgently required money to maintain herself and since she had no other source of income, she required to sell her share in the suit property. Even such prayer of the said defendant no.1/appellant was refused by the learned Trial Judge by giving an identical reason that if a co-sharer is allowed to sell his/her share in the suit property, such transfer is bound to cause multiplicity of proceeding which is not warranted.
The legality and/or propriety of the said order is under challenge in this appeal before this Court.
We cannot agree with such findings of the learned Trial Judge as we are of the view that there is no law which prevents a co-sharer from transferring his/her share in the joint property. Of course, the other co-sharers are not without any remedy, in case a co-sharer is allowed to transfer his/her share in the joint property. Since the law recognises some right to the other co-sharers under Section 44 of the Transfer of Property Act or under Section 8 of the West Bengal Land Reforms Act, we are of the view that if occasion so arises in case sale is actually made by a co-sharer to a stranger purchaser, the other co-sharers may seek appropriate remedy under appropriate provision of law. We, thus, hold that the impugned order cannot be allowed to be retained. The impugned order is, thus, set aside. We permit the defendant no.1/appellant to sell her share in the suit property to any purchaser of her choice.
Both the appeal and the application filed in connection therewith are, thus, disposed of on contest against the plaintiffs/respondent nos. 1 to 4 and ex parte against the defendant/respondent no.5.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(JYOTIRMAY BHATTACHARYA, J.) ( ISHAN CHANDRA DAS, J. ) dc.