The Single Bench of the Bombay High Court consisting of Justice Sandeep K. Shinde, while setting aside an appeal arising out of a civil application, opined that although the share of defendant no.1 is quantifiable, it is not ‘identifiable’ or ‘discernible’. So, if injunction is granted, it would affect the rights of other co-owners, who were not a party to the suit agreement.
Facts
Defendants no.1, 2 and 3 are the co-owners of the agricultural land of 100 acres bearing 44 different survey numbers (hereinafter called “the said property”). Defendant no.1 holds 1/3rd undivided share in the said property. Appellant-plaintiff, claims that defendant no.1, vide agreement (“suit agreement” for short) agreed to sell 10 acres of area, out of his 1/3rd share for total consideration of Rs.1,74,50,000/- (Rs. One Crore Seventy-Four Lakhs Fifty Thousand). Although plaintiff was ready to perform his part, defendant was avoiding the execution of sale-deed and at the same time, defendant no.1 along with defendants no.2 and 3 (co-owners) were/are likely to sell the said property or part of it to, other persons through defendant no.4. Thus, plaintiff called upon defendant no.1 to perform the suit agreement and execute the sale-deed.
Procedural History
Whereafter the plaintiff instituted the civil suit seeking decree of specific performance of the suit agreement. The land admeasuring 10 acres shall hereinafter be called as “the suit land”. Pending suit, plaintiff sought an order, to restrain all the defendants from alienating the said property (i.e., 100 acres land). However, pending decision, in application for temporary injunction, plaintiff vide application restricted his prayer to 1/3rd undivided share of the defendant no.1. Anyway, the learned trial Judge declined the injunction. That order is challenged in this Appeal under O43R1(r), read with Section 104 of the Civil Procedure Code.
Observations of the Court
The Bench referred to various judgments by the Apex Court and observed that:
“In view of the provision of Section 44 of the Transfer of Property Act, undivided share in joint property before partition can be transferred by a co-sharer or more than one co-sharer and transferee acquires same right and interest in the property transferred, as of the transferor. The only exception is that in case of dwelling house belonging to undivided family, such transferee, when not a member of the family or a stranger, cannot claim joint possession or common enjoyment of the dwelling house with the other co-sharers and the remedy is to seek partition. Another condition is that, neither the co-sharer can transfer anything greater than his interest in the joint property nor the transferee acquires any right or interest greater than the transferor had in the joint property, or in other words, the transferee steps into the shoes of the transferor/co-sharer or co-sharers. Therefore, when a co-sharer enters into a contract to transfer his interest in the unpartitioned property, such contract can be enforced against such transferee/co-sharer to the extent of his right and interest in the joint property.”
“Although the share of defendant no.1 is quantifiable, but it is not ‘identifiable’ or ‘discernible’…Therefore, even if injunction is granted, as sought by the plaintiffs, it is not possible to enforce it…Moreover, for want of definite-identifiable, share of defendant no.1 in the suit property, if injunction is granted, it would affect the rights of other co-owners, who were not a party to the suit agreement…Yet, another reason for not interfering with the impugned order is that it is open for the plaintiff to register the lis-pendens u/s 52 of the Transfer of Property Act, so that decree in the suit, shall bind the subsequent purchaser, if plaintiffs succeed in the suit.”
Judgment
The appeal was dismissed accordingly.
Case Name: M/S. Amoda Properties LLP vs Mr. Joy Mrinalkani Basu & Ors.
Citation: APPEAL FROM ORDER NO. 926 OF 2019
Bench: Justice Sandeep K. Shinde
Decided on: 28th February 2022
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