The Patna High Court, while allowing a petition filed under Article 227 of the Constitution of India for setting aside the order dated 02.03.2023 passed by the learned Sub Judge, whereby the learned trial court rejected the petition of the petitioner filed for allowing him to sell some particular land of his share, held that if the petitioner wants to sell the land that he is likely to get after partition to meet the expenses of treatment of his daughter as well as for himself, his prayer ought to be considered and should not have been rejected merely on the ground that such alienation would be hit by Section 52 of the Transfer of Property Act.
Brief Facts:
The petitioner is the defendant in a Partition Suit, and the respondents are plaintiffs. The plaintiffs had filed the suit for allocation of a 7/36 share in the ancestral property. The claim of the defendant/petitioner is also to the extent of a 7/36 share of the suit property. For the marriage of his daughter, the petitioner sought the permission of the court in the year 2003 to sell some land of the suit property, and the permission was granted, but the land could not be sold due to nefarious acts of the respondents. To meet the expenses for the treatment of his daughter as well as for himself, the petitioner needs to sell 02 Bighas of the land of his share, and with this object, an application was filed before the learned trial court seeking its permission. However, permission was denied to the petitioner on the ground that it was not legal to allow the transfer of land during the pendency of the suit, considering the bar of Section 52 of the Transfer of Property Act.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the said reasoning of the learned trial court is flawed. The same court earlier allowed the application of this petitioner and permitted him to sell 02 Bighas land of his share to meet the expenses of the marriage of his daughter. He argued that the learned trial court did not take into consideration the fact that the present suit is a partition suit, and permission for the sale of the land could not be refused. The same court did not allow the injunction because it was a partition suit and the share of the parties could be adjusted to the extent of the sale of their land and refused the prayer for injunction of the plaintiffs.
Observations of the Court:
The Court noted that the present suit is a partition suit, and there is some admitted claim regarding the share of the parties. If the petitioner, as well as the respondents, have an equal share, which is not objected to by any of the parties, forbidding the petitioner from executing the sale of a portion of his share for meeting his urgent expenses is certainly not proper considering the age of the petitioner and the facts as brought on record.
The Court observed that Section 52 of the Transfer of Property Act does not bar the complete transfer of land during the pendency of the suit. The land could be transferred with leave of the court, and permission for the same has been sought by the petitioner. If the petitioner wants to sell the land that he is likely to get after partition to meet the expenses of treatment of his daughter as well as for himself, his prayer ought to be considered and should not have been rejected merely on the ground that such alienation would be hit by Section 52 of the Transfer of Property Act.
The decision of the Court:
The Patna High Court, allowing the petition, held that the learned trial erred in passing the order, and there appears to be an apparent error of jurisdiction.
Case Title: Bijay Kumar Sarawagi v Sudhir Kumar Sarawagi & Anr.
Coram: Hon’ble Justice Arun Kumar Jha
Case No.: Civil Misc. Jurisdiction NO. 54 of 2024
Advocate for the Petitioner: Mr. Ravi Shankar Sahay
Advocate for the Respondents: Not Mentioned
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