Calcutta High Court (Appellete Side)
Manoj Kumar Mondal & Ors vs Saroj Kumar Mondal & Ors on 7 December, 2018
22 07.12.18 F.M.A.T. 992 of 2018
With
Ct. No. 02
CAN 7787 of 2018
akd
Manoj Kumar Mondal & Ors.
Vs.
Saroj Kumar Mondal & Ors.
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Mr. Debjit Mukherjee, Ms. Sushmita Chatterjee, Ms. Dipanwita Ganguly.
... for the appellants.
Mr. Mahammad Mahmud, Mr. Pamolochan Sahoo.
... for the respondent no. 2.
Let the affidavit of service filed in Court today be kept with the record. It is indicated therein that despite the order passed on 3rd December, 2018 the learned Advocate, who was representing the plaintiff, refused to accept the copy of the application filed in the instant appeal.
However, the respondent no. 2 is represented today.
Since the plaintiffs jointly filed the plaint, we, therefore, feel that it would a mere idle exercise to postpone the hearing of the application as well as the appeal, as the other plaintiffs have not appeared before us.
All the plaintiffs jointly made statements in the plaint and, therefore, we do not find that the other plaintiffs may have any other special defence in the instant appeal what is available to the appearing plaintiff before us.
We, therefore, treat the appeal and the application ready as regards service.
After perusing the averments made in the instant application, we feel that there is no necessity in keeping the appeal in the docket of this Court, as it can be conveniently disposed of in presence of one of the plaintiffs.
Admittedly the plaintiffs jointly filed the suit for partition of an undivided property and separation of their shares held by them therein. An application for temporary injunction was filed restraining the defendants/appellants from alienating, transferring and/or disposing of the property to a third party as well as changing the nature and character of the suit premises till the disposal of the suit.
The impugned order reveals that the Trial Court was swayed by the fact that pending suit the property should remain in existing condition. The Trial Court proceeded to dispose of the application for temporary injunction directing the order of status quo dated 28th November, 2016 passed by the Court to remain operative till the disposal of the suit. The suit is at the stage of discovery and inspection and, therefore, has not ripened for final disposal.
The learned Advocate appearing for the appellants strenuously submits that the Trial Court proceeded to dispose of the application for temporary injunction in haste and passed the order in cursory manner without recording any findings over the well settled parameters enunciated in the judgement rendered by the Courts in the country. It is further submitted that the co-sharer cannot be prevented or precluded from divesting his right, title and interest in respect of the undivided property pending partition suit and relied upon an unreported judgement of Division Bench of this Court in case of Ashoka Rani Hazra vs. Pijush Kanti Hazra & Ors. (F.M.A. 3440 of 2015 decided on 2nd November, 2016).
It is ardently submitted that the Court without recording specific observations on the respective possession of the parties should not grant a blanket order of status quo to be maintained in respect of the suit premises.
On the other hand, the learned Advocate appearing for the respondent no. 2 submits that the appellants have divested more than the extent of their share and, therefore, there is no illegality in the order of status quo passed by the Trial Court. It is thus submitted that no interference is required by this Court in the impugned order and the appeal should be dismissed.
It is no longer res-integra that the moment partition suit is filed, at least the plaintiffs admit the share of the defendants in respect of the properties included in the schedule appended to the plaint. It is further logically presumed that the parties have their respective right, title and interest to the extent of their shares in the joint property and the co-sharer held the possession not only on his behalf but also other co-shares as well. Any attempt to diminish the value of the joint property or invite any cumbersome situation in the event the separation of shares is ordered by the Court, the party should not be permitted to do so until the partition suit is decided finally, i.e. by passing the final decree. There cannot be any impediment or fetter on the part of the co- sharer in alienating or transferring his share in respect of the joint property, as the transferee pendente lite shall be bound by the final decree that would be passed in the said suit.
The contention of the contesting respondent that the appellants have transferred their shares more than what they actually possessed in respect of the joint property has no bearing at this stage, as the transferee pendente lite shall be bound by the preliminary decree declaring shares of the respective parties.
Furthermore if the transfer is effected for more than the shares declared in the preliminary decree, the documents effecting such transfer shall be valid to the extent of such declared shares. It reminds us the legal maxim Nemodat Quod Nonhabet; meaning thereby a person cannot give what he does not possess.
The Division Bench in the said unreported judgement in unequivocal terms observed that no law prevents the co-sharer from transferring his or her share in the joint property in these words--
"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."
We are in agreement with the enunciation of law laid down in the said unreported judgement. Even otherwise, we do not find any material to take a different view than what has been taken by a Co- ordinate Bench.
The impugned order, therefore, suffered from illegality or infirmity and the same is modified to the extent that both the parties are restrained from making any addition or alteration or changing the nature and character of the suit property till the disposal of the suit.
The appeal is thus disposed of.
The interim order is modified to the extent as indicated above.
In view of the disposal of the appeal itself, the connected application has become infructuous and is accordingly disposed of.
There will be no order as to costs.
(SUBHASIS DASGUPTA, J.) (HARISH TANDON, J.)