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Perpetual injunction under section 38 of specific relief act

Querist : Anonymous (Querist) 18 September 2021 This query is : Resolved 
My father passed away without making a will. He owned a plot in a CHS with a home constructed by him. Mother passed away well before demise of my father. As per nomination, the society transferred the share certificate with my name standing first & that of my only brother (younger). The possession of the property is with my brother. Since the day the society transferred the share certificate, my brother has been constantly filing cases on some pretext or other. All the cases have been dismissed by the civil court. While these cases were on, I filed an application for Heirship Certificate to the extent of 50% of my share of the plot & the structure thereon. This was also opposed, but after due process in Dec. 2018 the court issued a heirship certificate in my favour to the extent of my share. Thereafter, I got my name mutated in the property card in August 2019, which was also opposed but the Revenue Officer dismissed my brother's appeal. Now my brother has filed an appeal against the mutation order to higher authority & also filed a SCS against me asking for Perpetual injunction under Section 38 of Specific Relief Act.

My brother is neither willing to divide the plot, nor ready to compensate me for my share or accept my offer for purchasing his share.

My query is

1] Can a perpetual injunction be asked for against me even though the court has issued heirship certificate to me, to the extent of my share.
2] Is the suit sustainable for relief u/s 38 of Specific Relief Act, even though the property is in possession of my brother(plaintiff) & he is enjoying the same.
3] Can the court annul Heirship Certificate, since relief u/s 38 amounts to derecognizing my right.
4] Can I proceed with a countersuit for partition of the property, which actually got delayed due to the ongoing pandemic, since I live in Mumbai, while the property is located in Pune.


P. Venu (Expert) 19 September 2021
Your brother's actions are misguided. On the demise of your father, you are a joint owner of the property. It is better if you seek partition.
krishna mohan (Expert) 20 September 2021
You have equal share. Since you have favourable judgment consult your lawyer for better appreciation of facts and right legal remedies.
Advocate Bhartesh goyal (Expert) 20 September 2021
Yes, file partition suit along with petitioner temporary injunction .


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