Smt. Sarla Aggarwal vs Sh. Ashwani Kumar Aggarwal
2012 Latest Caselaw 6200 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: 15.10.2012

+      CS(OS) 1548/2007

       SMT. SARLA AGGARWAL                                             ..... Plaintiff

                            Through: Mr Gaurav Duggal, Adv.

                   versus

       SH. ASHWANI KUMAR AGGARWAL                                  ..... Defendant

                            Through: Ms Vibha Mahajan Seth, Adv for D-2

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                            JUDGMENT

V.K.JAIN, J. (ORAL)

IA No. 12783/2012 (O. 6 R. 17 CPC)

1. Property No. 2, East Park Road, Karol Bagh, New Delhi was jointly owned

by two A.P. Aggarwal & sons HUF and Gajanand Aggarwal & sons HUF. The

property measures 2400 square yards. A.P. Aggarwal & sons HUF sold 1200

square yards of the suit property to defendant No. 2, by way of a sale deed. During

pendency of the present suit, defendant No. 1, who is the son of late Shri Gajanand

Aggarwal and is a member of Gajanand Aggarwal & sons HUF sold his share

measuring 350 square yards in the suit property to defendant No. 2 by way of a sale

deed. The plaintiff and two other sons of late Shri Gajanand Aggarwal are also

alleged to have entered into an agreement to sell their share in the suit property to

defendant No. 2. It is an admitted position that the share of defendant No. 1 in the

suit property comes to 350 square yards on death of Gajanand Aggarwal.

2. The prayer made in the suit was for a declaration that defendant No. 1 (sole

defendant at that time), namely, Shri Ashwani Kumar Aggarwal had no right to sell

undivided share until and unless the property is divided by metes and bounds or

otherwise. The plaintiff is now seeking to amend the plaint so as to allege that

transfer of 350 square yards of the suit property by defendant No.1 Shri Ashwani

Kumar Aggarwal, who is her son, to defendant No. 2, during pendency of the suit

is hit by the doctrine of lis pendens enshrined in Section 52 of Transfer of Property

Act and is accordingly seeking cancellation of the sale deed executed by defendant

No. 1 in favour of defendant No. 2.

3. Section 52 of Transfer of Property Act, to the extent it is relevant, provides

that during the pendency in any Court or any suit or proceeding, which is not

collusive, which immoveable property is directly and specifically in question, the

property cannot be transferred or otherwise dealt with by any party to the suit or

proceeding so as to affect the rights of any other party thereto under any decree or

order which may be made therein, except under the authority of the Court and on

such terms as it may impose.

4. Section 44 of Transfer of Property Act which deals with transfer by one of

the co-owners of an immovable property 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 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."

It would be seen that there is no legal bar on one of the co-owners of an

immovable property transferring his share in the property to an outsider even if the

property belongs to an HUF and the transferee is not a member of the HUF.

Section 4 of Partition Act which deals with partition by transferee of share in

dwelling house belonging to an HUF reads as under:-

"4. Partition suit by transferred of share in dwelling house:- (1) Where a share of dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and property directions in that behalf."

In Gautam Paul, v. Debi Rani Paul and others AIR 2001 SC 61, the Apex

Court, inter alia, held as under:-

"It must be mentioned that this Court has in the case of Babu Lal v. Habinoor Khan reported in AIR (2000) 5 SCC 662 already considered the correctness of the view taken in AIR 1971 Orissa 127. As set out above the Orissa High Court took the same view as the Calcutta High Court. This Court held as follows in respect of the view taken by the Orissa High Court:

"If the ratio of the aforesaid decision is held to take the view that a stranger-purchaser who does not move for partition of the joint property against the remaining co- owners either as a plaintiff nor even as successor of the decree-holder seeks execution of the partition decree can still be subjected to Section 4 of the Partition Act proceedings, then the said view would directly conflict with the decision of this Court in Gantesher Ghosh case and to that extent it must be treated to be overruled."

23. We are in agreement with this opinion.

There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play. Except for Section 4 of the

Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a co- sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger/purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for partition.

5. It is thus an undisputed legal proposition that the member of an HUF can

transfer his undivided share in an HUF property without seeking consent of the

coparceners in the property. Therefore, transfer of 350 square yards of the suit

property by defendant No. 1 to defendant No. 2 is perfectly legal in the eyes of law.

As noted earlier, this is not the case of the plaintiff that defendant No. 1 Shri

Ashwani Kumar does not own 350 square yards in the suit property. Therefore, he

had full authority in law to sell his undivided share to defendant No. 2.

6. The learned counsel for the plaintiff has referred Sampath Kumar v.

Ayyaknnu & Anr (2002) 7 SCC 559, Rajesh Kumar Aggarwal & Others v. K.K.

Modi & Ors. (2006) 4 SCC 385 and Pankaj and Anr. v. Yellappa (Dead) by LRs

& Others (2004) 6 SCC 415.

However, none of these judgments deals with the above-referred legal issue

and this is not the case set out in the plaint that any agreement between the

members of the HUF-Gajanand & sons precluded defendant No. 1 from selling his

share in the suit property to an outsider, before offering it to the other member of

the HUF. Therefore, it cannot be said defendant No. 1 had no legal right to sell his

7. It is true that while considering an application for amendment of pleadings,

the Court is not required to go into merits of the averments sought to be made by

way of proposed amendment. But, it is also a well settled proposition of law that

an amendment which is absolutely unnecessary and mala fide cannot be allowed.

Since there is absolutely no basis in law even for contending that defendant

No. 1 Shri Ashwani Kumar could not have transferred his undivided share in the

HUF property to defendant No. 2, the only inference which can be drawn is that the

proposed amendment is not only unnecessary, but is also mala fide, intended only

with a view to delay the progress of the suit. This is also evident from the fact that

the sale deed by defendant No. 1 in favour of defendant No. 2 was executed on

24.12.2007, whereas this application has been filed in September, 2011, i.e., after

about four years of the transfer and this is not the case of the plaintiff that the

transfer came to her knowledge only around the time she filed this application.

The application is, therefore, dismissed.

CS(OS) 1548/2007

Renotify for hearing on 26.02.2013.

V.K. JAIN, J OCTOBER 15, 2012 bg