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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Sanjay Kumar Tripathi and Another – Petitioners
Versus
Suryakali Tripathi – Respondent
Matters Under Article 227 No. 1015 of 2024
Decided On : 05-08-2024
(A) Constitution of India - Article 227 - Jurisdiction of Civil Courts - The court held that a co-sharer in an undivided property can transfer their share without partition, and a temporary injunction cannot be granted to prevent such transfer. (Paras 9, 10, 20)
(B) Specific Relief Act, 1963 - Section 34 - The court ruled that a declaration cannot be sought without a substantive relief, and a suit for partition is the appropriate remedy for co-sharers. (Paras 11, 12, 13)
Facts of the case:
The plaintiffs sought an injunction against the defendant, their mother, from transferring her undivided share in agricultural land, claiming it would prejudice their interests. The trial court granted the injunction, which was later set aside by the appellate court.
Findings of Court:
The appellate court found that the plaintiffs could not prevent the defendant from transferring her share and that the suit was barred by the Revenue Code. The court upheld the appellate court's decision to set aside the injunction.
Issues: The main issues were whether a co-sharer can transfer their undivided share and the jurisdiction of civil courts over such matters.
Ratio Decidendi: The court concluded that a co-sharer can transfer their undivided share without partition, and the relief sought by the plaintiffs was not maintainable under the law.
Result: Petition dismissed.
JUDGMENT :
J.J. MUNIR, J.
1. This petition under Article 227 of the Constitution is directed against an order passed by Mr. Vinay Singh, Additional District Judge, Court No. 21, Kanpur Nagar, allowing Misc. Civil Appeal No. 103 of 2023 and setting aside the ad interim injunction dated 19.09.2023, granted by the learned Additional Civil Judge (Jr. Div.) Court No. 8, Kanpur Nagar in O.S. No. 1341 of 2023.
2. The petitioners are the plaintiffs of O.S. No. 1341 of 2023, whereas the sole defendant-respondent to this petition is their mother. The property in dispute, that is the suit property, is agricultural land, wherein both the plaintiff-petitioners (for short, ‘the plaintiffs’) and the defendant-respondent (for short ‘the defendant’) hold shares as they claim. The suit property is admittedly undivided. The details of this property are given at the foot of the plaint, giving rise to the suit, whereas in paragraph Nos.2 and 3, the plaintiffs disclose their shares in the suit property and that of the defendant. The cause of action, which the plaintiffs set forth in the plaint, is that the defendant, who is a co-sharer of the plaintiffs and their mother, under the influence of the plaintiffs’ sister, Anita Mishra and her husband, with whom, the defendant resides, has transferred an area of 155. 33 square yards (125.69 square meters) of land out of Khasra No. 164, Khata No. 00298, admeasuring a total of 0.3160 hectare, situate at Village Hora Bangar, Tehsil, Pargana and District Kanpur Nagar, vide registered sale deed dated 17.09.2019 in favour of one Rajesh and another Deepak. It is also pleaded that the plaintiffs and the defendant together, out of the same plot, sold off an area of 75.25 square meters vide registered sale deed dated 04.07.2017, but the defendant, in connivance with the plaintiffs’ sister, Anit Mishra, has misappropriated the sale consideration. The plaintiffs plead that the defendant has no right to transfer her share in the suit property, which is unpartitioned, unless it is partitioned in accordance with law with the precise shares of parties determined.
3. It is also their case that the defendant has offered for sale the suit property jointly owned by the plaintiffs and the defendant, leading to a broker entering upon the said property and attempting to lay a foundation thereon. It is the plaintiffs’ case that upon resistance by them, he picked up an altercation, compelling them to report the matter to the Police. Saying that the entire suit property is the joint holding of the plaintiffs and the defendant, the plaintiffs’ case is that the defendant has no right to transfer her share without a partition being effected. It is on the foot of this case and cause of action that the plaintiffs have claimed the following reliefs (translated into English from Hindi):
(B) The Court, by a declaration, may declare the plaintiffs’ co-sharers in possession of a 1/4th sha
A co-sharer in undivided property can transfer their share without partition; injunctions to prevent such transfers are not legally sustainable.
(1) Injunction – There is absolutely no right inhering in co-sharer of a property to prevent another co-sharer by Court’s injunction from transferring that other’s unpartitioned share.(2) Preliminary....
The revenue court has jurisdiction to grant interim injunctions in partition suits under the U.P. Revenue Code, and construction on joint land does not change its nature as a holding.
(1) Law permits a co-sharer to continue to remain, ad infinitum, in exclusive possession of a particular parcel and, subject to well recognised prohibitions, even make constructions on it. Exclusive ....
remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the cas....
A co-owner can seek injunction against another co-owner to prevent wrongful dispossession, contrary to the trial court's ruling that denied such relief.
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