Co-Sharer In Suit Property Cannot Be Restrained From Transferring Unpartitioned Share In Favour Of Third Party: Allahabad HC
The Allahabad High Court had held that a co-sharer in a suit property cannot be restrained from transferring their unpartitioned share in favour of a third party.
The Court clarified that if the petitioners were to seek any meaningful relief, they would have to seek a decree for the division of the suit property, which would be exclusively cognizable by the Revenue Court under Section 116 of the Uttar Pradesh Revenue Code, 2006.
A Single Bench of Justice J.J. Munir observed, “In no event, the plaintiffs would, therefore, be entitled to an injunction of the kind they claim, seeking to restrain the defendant, a co-sharer in the suit property from transferring her unpartitioned share in favour of a third party.”
Advocate Anuj Kumar Srivastava appeared for the petitioners, while Advocate Manu Srivastava represented the respondent.
The undivided suit property in dispute was agricultural land. The cause of action, which the petitioners outlined in the plaint, was that the respondent, who was a co-sharer of the petitioners and their mother, under the influence of the petitioner’s sister and her husband, had transferred an area of the land vide registered sale deed in favour of third parties. It was pleaded that the petitioners and the respondent together, out of the same plot, sold off some land vide registered sale deed, but the respondent, in connivance with the petitioner’s sister misappropriated the sale consideration.
The petitioners pleaded that the respondent had 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.
The trial court ordered both parties to maintain status quo and forbear from transferring the suit property in favour of any third party. The respondent appealed this order before the District Judge, who by the impugned order set aside the ad interim injunction dated passed by the trial court.
The High Court had to determine whether the plaintiffs can seek any injunction forbearing the defendant from transferring her unpartitioned share in the suit property.
The Bench remarked, “It is on first principle that a co-sharer, who has an unpartitioned share, is always free to sell or otherwise assign it to a third party. It is true that the owner of a share cannot transfer any particular portion of the property without a partition by metes and bounds.”
The Court stated that since the proviso to Section 34 of the Specific Relief Act, 1963 (the Act) intends to provide a substantial relief of a particular kind envisaged by law, a bare declaration cannot be granted by Courts.
“The proviso to Section 34 would bar such a declaration and oblige the plaintiff to sue for recovery of money or accounts or other substantial relief, appropriate to the cause of action,” the Bench explained.
Consequently, the Court imposed costs of Rs.10k and held that “the learned Additional District Judge was absolutely right in setting aside the ad interim injunction granted by the Trial Court. No exception can be taken to the impugned order by the plaintiffs, which must in our opinion be unhesitatingly upheld.”
Accordingly, the High Court dismissed the petition.
Cause Title: Sanjay Kumar Tripathi & Anr. v. Suryakali Tripathi (Neutral Citation: 2024:AHC:125649)
Appearance:
Petitioners: Advocates Anuj Kumar Srivastava and Nisheeth Yadav
Respondent: Advocates Manu Srivastava and Vivek Kumar Srivastava
