Smt Sarla Aggarwal vs Shri Ashwani Kumar Aggarwal & Anr
2013 Latest Caselaw 4372 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                       Decided on: 24.9.2013
+      RFA (OS) NO. 121 OF 2013

       SMT SARLA AGGARWAL                       ..... Appellant
                    Through: Mr. Sandeep Sharma with Mr.Ankur
                    Goel, Advocates.

                          versus

       SHRI ASHWANI KUMAR AGGARWAL & ANR. ..... Respondents

Through: Nemo

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE S.RAVINDRA BHAT(Oral)

CM No. 14883/2013 (delay) in RFA(OS) 121/2013

For the reasons stated in the application, the delay in filing the appeal

is condoned.

RFA(OS) 121/2013

1. The present appeal is directed against the order dated 08.07.2013

whereby the suit of the appellant was dismissed. The appellant is the

mother of the respondent/defendant; she filed CS (OS) No. 1548/2007

claiming a declaration that the son i.e. the first defendant had no right

to sell any undivided portion of the suit property until it was

RFA (OS) No.121/2013 Page 1 partitioned by metes and bounds or otherwise. The suit property is

property No. 2, East Park Road, Karol Bagh, New Delhi and is jointly

owned by A.P. Aggarwal & Sons HUF and Gajanand Aggarwal &

Sons HUF. The entirety of the property is to an extent of 2400 sq.

yards. A.P. Aggarwal & Sons HUF sold 1200 sq. yards of the suit

property to second defendant by way of sale deed; the second

defendant was impleaded during the pendency of proceedings. The

first defendant i.e. the appellant's son and a member of Gajanand

Aggarwal & Sons HUF had a share in the suit property to the extent

of 350 sq. yds, which he, during the pendency of the suit, transferred

to the second defendant by way of a sale deed dated 24.12.2007. As

observed earlier, at the request of the plaintiff/appellant, the second

defendant was impleaded in the suit on 2nd December, 2008 by an

amendment. The suit was also consequently sought to be amended

and a decree of permanent injunction to restrain the defendant No.1

from parting with the possession of any portion of the suit property

was sought to be added.

2. On 15th October, 2012 by the first impugned order, the Court rejected

the application for amendment whereby a prayer for an injunction

RFA (OS) No.121/2013 Page 2 against the defendant No.1 and a challenge to the subsequent sale by

defendant No.1 during the pendency of the suit was sought to be

assailed. The Court took special note of the fact that the sale was

made on 24th December, 2007 where as the application was filed in

September, 2011.

3. The learned Counsel submits that the impugned judgment and order

as well as the previous order of 15.10.2012 are mutually inconsistent.

The order of 15.10.2012 was premised upon the fact that Section 44

of the Transfer of Property Act, 1882, entitles the co-owners to sell

his undivided share at the same time protects the other co-owner in

possession from any harm or injury by mandating that the third

purchaser would not be entitled to claim possession as of right to the

joint possession or other common or part enjoyment of the undivided

share of the property would not act as a bar to the transferee seeking

to work out his rights and effects through a separate partition suit

under Section 4 of the Partition Act, 1893.

4. It is contended by counsel on behalf of the appellant that both

impugned orders are perverse and unfounded inasmuch as the

appellant's rights have been severely and irreparably affected and that

RFA (OS) No.121/2013 Page 3 there is every likelihood that she may be dispossessed or at least the

defendant's actions may result in injury to her domain or her

possessory or territorial rights over the property. It was submitted that

the impugned final judgment and decree dated 8.7.2013 has in fact

placed a seal upon the appellants right to challenge the sale deed by

which the second defendant was sought to be inducted as co-owner in

the undivided suit property.

5. This court has considered the order dated 15.10.2012 and the final

judgment and decree of dismissal as well as submissions of the

appellant and the materials on record. The first order impugned in the

present appeal i.e. the order dated 15.10.2012, this Court notices, sets

out an obvious and well established legal proposition arising from

Section 44 of the Transfer of Property Act read with Section 4 of the

Partition Act, 1893. The cumulative effect of both the provisions is

that though a third party purchaser is entitled to a claim title to his

undivided portion of a joint property, he cannot claim, as of right, his

entitlement to possession. In any event, his rights vis-a-vis the other

co-owner will have to be worked out in a proper, substantive

proceeding. This was explained in Gautam Paul v. Debi Rani Paul

RFA (OS) No.121/2013 Page 4 and others AIR 2001 SC 61, which has been cited and applied by the

learned Single Judge in the order dated 15.10.2012. So far as the

contention with regard to the prejudice caused to the appellant on

account of the first impugned order is concerned, this court is of the

opinion that having regard to the settled position of law and having

regard to the nature and entitlement of the co-owner to the undivided

share in the property, any question of challenging the sale of an

undivided share of the property would not arise. An undivided owner

like the first respondent, in the absence of any legal impediment or

prior encumbrance would not be precluded from parting with his title

as in the present instance. In any event the challenge sought to be

made to the sale was considerably delayed. The sale took place on

24.12.2007, the suit was filed on 14.08.2007 and the application for

amendment was made in September, 2011. If the plaintiff/appellant

was aggrieved by such sale it was open to her to challenge it on

whatsoever ground available to her within the prescribed period of

limitation. Consequently, given the overall conspectus of

circumstances and the nature of relief sought in the proceedings and

on an overview of Order 2 rule 2 of the CPC as well as provisions of

RFA (OS) No.121/2013 Page 5 Section 6 of the Specific Relief Act, it is amply clear that the

attempted challenge to the sale was barred we see no reason to take a

different view in the matter. There is no illegality or infirmity in the

impugned order dated 13.10.2012 of the learned Single Judge.

6. As far as the final order dated 8.7.2013 is concerned, in our opinion

the learned Single Judge had held that since the decree of declaration

in respect of the inability or so-called inability or disability of the first

defendant/respondent from selling the undivided portion did not

survive, the challenge to the transfer or any other consequential relief

could not have been agitated and no triable cause of action survived.

This court finds no infirmity in the same and, therefore, affirms the

impugned orders and the dismissal of the suit. The appeal is,

therefore, dismissed.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) SEPTEMBER 24, 2013 pkv

RFA (OS) No.121/2013 Page 6