Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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P.Padmanaabhan (advocate)     15 January 2012

Sale of suit property ignoring court injunction

In a suit for partition , the District Court in this case had granted interim order against alienation of property. Still proeprty sold. In answering the related related issue in the judgmenjt the Court hedl that since the sale was despite the knowledge of injunction against sale, the sale was void and not binding on the plainitffs. is it correct? 

can the vendee proceed aganist the other portions fo the property of the vendor who gets certain part of property allotetd in the same survey number?  Or,  with court finding hat the sale was void, what is the equitable  relief if any  for vendeee?



Learning

 8 Replies

VINAYAGAMOORTHY (Chief Executive Officer)     18 January 2012

The sale is hit by DOCTRINE OF LISPENDENCY.so as such the vendor estopped,from conclude the sale.he is liable to make good the loss of the vendee.

P.Padmanaabhan (advocate)     27 January 2012

Dear thiru.Vinayagamorrthy, vanakkam,. i apoligise for the late acknowledgement fo your response above. I am fuly aware  of thedcotrine of Lis Pendens that is the provsisions of S.52 of TP Act. It means during pedency of proceedings if a thrid party pruchases the property involved  in the sui, it attracts  .52 of TP Act.  Interseted may reda the decision of the High Court of Madras in the  case of Rnagasamy vs. Rajeswari (www.indiankanoon.org/doc/291429//.  the hoigh court has covered a number of Apex Court rulings to. Nut my question is the consequence of sale of the property  by the D1 ( husband) to thrid parteis D2 and D3? This is sham deal. The prossession is still with D1 vendor only. It is he who has been paying kists ( goot annual tax on land)  and is in possession or property sold to D2 and D3! Is the sale void or what is the consequence of vioalting the  injc*ntion? What is the use of injuctgion?? ,

advocvate Coimbatore 641 037 

at 11:55 am ist on 27th jan 2012

Ashish Chakravarty (Advocate)     30 January 2012

P.Padmanabhan, what exactly was the language of the interim order ? Did the Court specifically restrained the offending party from transferring or alienating? Section 52 does not renders a sale void automatically if such sale is during a suit, it just means that the subsequent purchaser shall be bound by the decree of the court, if you need the citation let me know, il post a link. Now because you have mentioned that the suit was for partition, i am presuming that the land was unpartitioned and that the offending party has solc a specific portion of such unpartitioned land, am i right? If this is the scenario then again such alienation shall raise some further questions, if the O.P. has just sold his undivided right in the partitioned property then such sale is not void however the purchaser would not be able get in possession of the property before partition, this is the view of the Hon'ble Apex Court again. however if he has sold in excess of his share then such transfer is bad in the eyes of law as he cannot sale what he himself dosent has, be a bit more specific about it. One more thing, there is a use of injunction, it is an order and as long as it was not vacated it remained in force and wiful non compliance warrants penalties. File a misc, suit for contempt and pursue it earnestly, it will proceed simultaneously with the present suit of yours and you may win it if you are able to prove contempt and even if you lose the main suit you may still win this misc. suit.

P.Padmanaabhan (advocate)     03 February 2012

Dear thiru. Ashish Chakravarty, vanakkam and I am grateful to you for the kind and illuminating words u have printed above (four days ago, as per the indication in the posting of yours) . I am  opening the inbox of my member id only at the moment at 05:00 PM on 3rd feb 2012 . Forthwith I am proceeding to reply u, Sir. I do not have copy of the interim order. In fact since the date judgment on 30th August 2011 of fast track court here in the partition suit filed by the wife C  as 1st plaintiff for charge for  her maintenance  and the minor daughter  Ri as second plaintiff for partition of her alleged half share in the “joint family” properties of her father/1st defendant,  the plaintiffs attributing  ancestral in nature to the properties sought to be partitioned,  an appeal has been filed in the High Court of Judicature at Madras of the vendees of two specific shares in one of the three items of the properties. Further I find from the records of the case that the plaintiffs  had obtained an order of temporary interim injunction against the father/husband/1st defendant ( D1) restraining him from alienating the properties. Thus Sir u r right in your presumptions that the properties  were not partitioned and that the two sales were of specific portions. Too, the sale was clearly post filing  of the maintenance cum partition suit and  in clear violation of the interim order in force of  which the vendor/D1/father/husband  had clear knowledge by service of notice. Also, even the vendees,  added as D2 and D3 to the suit,  during trial  had admitted knowledge of interim order against alienation. The trial court has conceded her right to half share  in the “joint family ancestral   property by her birth and even held that the vendess do not have right in the property under the sale of specific portions of shares by the father D1S .

 

Some germane facts of the case:

 

D1, S  had been partitioned on 30-09-1970 by registration with his own father  R.,  when D1  he was a minor of just about 6 ysr old. Admittedly the family was joint made of two coparceners only- D1 S and his father R. D1’s mother Paa   was guardian to the  partitioning minor son D1S in the partition instrument. The properties divided were incontrovertibly ancestral in nature obtained by the father  R  of D1 S from his father V  under another registered partition around  1960. D1S  got married in 1995 to the 1st plaintiff C   in 1995 and the 2nd plaintiff Ri was born to them on 16-07-1997 . Thus D1 S was a minor at the time of  partition on 30-09-1970. The properties once allotted under the registered instrument was therefore anyway his separate individual properties, though of ancestral origin.There was no longer any “joint  family”  as such after partition on  30-09-1970. Accordingl,  when P2 daughter Ri was born on 16-07-1997  she could not be acquiring any interest by birth as such  in the individual and separate properties allotted to her father D1 S under the registered partition dtd 30-09-1970! But in between 16-07-1997, the date  on which  P2 Ri was born  and after the marriage of D1 S with P1 C, if there had been  a son born to D1 s and his wife P1 C, then the family once again  become joint and the hitherto separate properties of D1 S would have become joint family properties with two male coparceners of D1 S and his son born. Thus the birth on 16-07-1997 in the family would have bene in the joint family of D1s, and his son .  But still she would not be getting any interest by birth in the joint family properties of D1s.

 

Legal position as stated in Hindu Law by  Mulla and by court decisions:

 

HINDU LAW by Mulla- 21st edition 2011:

 

Para 302  page 491 at page 492-comments under sub heading-‘share allotted on partition’ : “When a coparcener who is joint with his male issue separates from  his father, brothers, or other coparceners, the property allotted to him at the partition is separate property as regards the divided members,  but ancestral as regards  his male issue. Such property is therefore divisible as between him and his male issue, but the members  who have already separated are not entitled to a share in it.  If he dies without leaving a male issue, it will descend to his heirs” . 

HINDU LAW by Mulla- 21st edition 2011:

Para 302  page 491 at page 492-comments under sub heading-‘share allotted on partition’ : “When a coparcener who is joint with his male issue separates from  his father, brothers, or other coparceners, the property allotted to him at the partition is separate property as regards the divided members,  but ancestral as regards  his male issue. Such property is therefore divisible as between him and his male issue, but the members  who have already separated are not entitled to a share in it.  If he dies without leaving a male issue, it will descend to his heirs” . 

THEREFORE THE SUIT FILED BY THE MINOR DAUGHER P2 Ri FOR PARTITION IN THE SEPARATE INDIVIDUAL PROPERTIES CLAIMING HALF SHARE IN THE SO CALLED ANCESTRAL & JOINT FAMILY PROPERTIES OF HER FATHER D1S OBVIOUSLY IS NOT MAINTAINABLE!

She can not claim any right by birth even under  THE HINDU SUCCESSION AMENDMENT TAMIL NADU ACT of 1990 wef 25-03-1989 TO SECTION 29 of the HAS OF 1956.   

The heading is: EQUAL RIGHT TO DAUGHTER IN COPARCENARY PROPERTY !

 Thus it posthulates  two facts- there is joint family and that it had coparcenary property. Thus there should have been two male members when the Amending  Act came into force  on 25-03-1989.  P2 Ri was born on 16-07-1997 and there was neither a joint  family nor coparcenary property. P2 Ri was not born to a father coparcener after all. D1 S was not a coparcener then or even today !

Again , the Central amendment to Section 6 of  HAS  by Act 39 of 2005 wef 09-09-2005.  too would not help the P2 Ri   inasmuch as the Act amending Act  reads:

On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcerner;

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and, (a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son,grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation: For the purposes of clause (a), the expression ";son" , "grandson" or ";great-grandson" ; shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation: For the purposes of this section"partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by the decree of a Court." ;

Here we notice that here must be Hindu Joint family and the daughter must be of a coparcener to invoke this amended  S.6 and be a beneficiary the amendment.

In view of the separated and individual status  the father D1 S  even from the date 30-09-1970, the daughter  P2 Ri does not qualify to avail the amended  S.6 and she will  fail ( in the appeal to be laid in the High Court by D1 S father)  in respect of her   claim of partition and  of her half share in  the alleged “ joint family “ property of her father D1S for the alleged virtue of it being  “ancestral”!

 Law that would favour the appellant father / D1 S are:

 

 

SUPREME COURT OF INDIA:

M. Yogendra and others  v. N.Leelamma and Others (2009) 15 SCC 184 –

It is now well-settled in view of several decisions of this Court that the property in the hands of sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him” -   

 

“It is clear from the express language of the section that it applies only to  coparcenary property of the male Hindu holder who dies after the  commencement of the Act.”  

 

Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr.  12-10-2011,  

 2011 (11) SCALE 467

“14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.’

We notice that the stress is on the daughter of  a coparcener and in the coparcenary property oinly which would not help the daughter P2 Ri in view of the fact that  her after  D1S , after his partition  on 30-09-1907 had ceased to be a coparcener and he continues to be so  so even up to this minute!

BUT , dear thiru.  Ashish Chakravarty, my concern  and focus is what about the vendess right to the specific portions obtained by them from the D1S even while the injunction was in force. No doubt that they having purchased specific shares the D1 S father out of his separate property as such, hey will not be hurt by S.52 of TP Act.  But is the sale void for having been done by father D1 S in naked violation  the Court?

The vendees have already filed  an appeal suit ( first appeal)  in the High Court  against the finding  the trial court  the sale were void.etc..etc.!

Some excerpts from the reasoning of  the trial judge from his judgment under issue : “ whether the sale in favour of the defendants  2, 3 affects the right of the plaintiffs?”

“Here the plaintiffs contend that the sale of the suit properties by the first defendant on 23-10-2007 and  30-10-2007 under Ex.B11 and Ex.B 12 respectively are void and since they have purchased the properties when an order of injunction  has been in force in respect of the suit properties”.

“in cross examination DW3 ( D3 vendee ) clearly admit that he knew the order on injunction obtained by the plaintiffs in respect of the suit properties prohibiting  D1 S  and others not to alienate the property 1o days before the purchase, would go to show that the defendants  2 and 3 have purchased the suit properties with the knowledge of the order of injunction and that the suit pending  in respect of the suit properties.  At this juncture it is relevant to go through the provisions of Section 52 of the Transfer of Property Act.” ( S.52 quoted in full)

“Hence it is clear that the sale by defendant No.1 to defendants are void and the sales do not bind the plaintiffs”.  He rleis on 2001 ( 1) CTC 19 . AIR 2007 SC 1332.  After referring the portions of the judgments  he  concludes: “ So it is clear that the purchasers  of the property when a suit is pending will not incur any right in the property”

The trial  judge then seeks to fortify his reasoning : “Further DW1 ( D1 S) admitted in his evidence that the suit properties  are his ancestral properties.  The same is revealed through Ex.A2 partition deed between the first defendant and his father dated 30-09-1970. and further DW3 ( one of the two vendees)  admitted in his evidence that he knew how the suit properties belonged to D1 S would all go to show that defendants by knowing fully well regarding the ancestral nature of the properties have purchased the suit properties. When the properties are ancestral and the first plaintiff and  first defendant who are wife and husband having half share in the suit properties as per Hindu Law.  

In the above circumstances I hold that the sale of by first defendant to second defendant and third defendant are not binding on the plaintiffs. When the  2nd and third defendant have no right over the suit properties by virtue of Section 52 of the Transfer of Property Act there is no question of claiming of  cancellation of Ex.B.11 and Ex.B.13 which are not binding the plaintiffs”.

THEREFORE,  while  i am clear that S.52 analysis as such will not  help the planitffs  to disentitle the vendeess altogether, can there be a legal consequence of vendees losing thier title for violating injunction? I am aware that what they purchased was from  out of the separate property! P.Padmanaabhan. advocate. 03rd Feb 2012 at 22:08 hrs IST  

 

 

 

 

kvss.prabhakar rao (Advocate )     04 February 2012

when successions opens if any one of share holder sold away the property with knowledge of anohter co -share it automatical render such is vaiod and illegal. If court paases any ordr restrans not to transfer pendtlite you can file petition for disobedience of injunction orders passed by the Honourbale court if posession handed over you have another remedy file petition for restitution under Sec 144 of C.P.C

P.Padmanaabhan (advocate)     04 February 2012

To:

Mr.KVS Prabhkar  rao.. Thank u sir. If u read carefully, in the aboce case, there  is no question of any succession involved. The daughter/2nd planitff  is till a minor. Her father D1 S got partitioned from his own farther 0n 30-09-1970  Since then he has been idnvidual and joint family was nog revived by birth  of any male to him.  thus his property allotetd to his share in the yea 1970 is his separate indvidiual property. He got marredi in the year 1995 and begot daughter 2nd planitff in the year 1997. She filed  suit for partition against father D1 alleging that by birth  she had acquired  half share  in the "ancestral joint family proeprty" of her father obteredn undre the parttition done in the year 1970  between her father and his father. Her claim is untenable undre law. (Hindu Succession Act ). But her father D1 S sold a specfic poriton of his properyt . Nor mally he was fully competent to do so. Because the property is ihis individual separarte property . But the property was sold in violation of the cour order restraining the vendor fom alienating the property. Does this alone renders the sale void ? any auhtority of high court or the Apwex court to that effect ? P.Padmanaabhan at 10:25PAM IST on  4th Feb 2012

Shantilal Pandya ( Advocate)     09 March 2012

sale despite injunction order is not  void  but the vendee takes subject to the  result of the suit , if the property in the suit   was undivided  and the decree  is for partition  the vendee takes the share of the vendor 

P.Padmanaabhan (advocate)     17 August 2012

Respecetd and learned Advocate thiru. Shartilal Pandya and otthers ,

Sir, you have given your comment five months back, that is in April 12. I was not keeping  well and underwent surgeries in march 12, and since then i have recovered considerably  and even am flying  to Chennai  atttend to the needs of  cases Ima connecetd wiht and beign processed in the High Court  of Judicarture at Madras . Thank you. Now in the case I have referred to above, the father 'S'  sells a part of property that fell into his share at the partition  with his father. 'R'.  The  divdied son 'S' does not have male issue. As a matter fact he was a minor then and the partiton was done by his mother as guardian. later he attaiend majoirty, got marreid and begot a girl. No son was ever born to 'S' , after the girl.   It is this girl, still at school , and continues  to be  a minor insitituted a  suit for partition with her father 'S' by her mother gurardian. She also obtained  an interim  injucntion from Couirt rsetraining teh father 'S' from alienating the property,   when suit is pending.. Yet, two  persons ( T & P) buys the property unmindful of Court injunction. They are made parteis to the suit. . The trial court allows  the suit for parttion amnd proceeds to state  the sale was void and not bindignj  on the 2nd planitff./ monro daughter. 

I am in appeal to the high court. ( statutory first appeal).   I am likely  to win in appeal for the resaon that the property that felll into the share of the father 'S' at the registered partition with his father 'R" was not any more a joint family property after parttion and it was his separate property. teh m9nor daughter did not have right by birth in the separate property of the farther 'S" . Hence it is likely that the Hc may set asdie the trial Court decree  and judgment allowign the suit partiton by the mnor daughter.

Thus far ok.

But was the sale by the father in vilatiogn fo court injunction void?  If teh answer of the learened advocate  thiru.SP above is applied  then the sale is not void, especillay the property  was his separeate property.  The title  acquired by the buyers is protected not bnolyby doctrie of lis pendens but also by the fact  that the  father 'S'  had after all sold only his separate porperty.

Even so, then WHAT IS THE PURPOSE COURT ORDER OF INJUNCTION?  any firther comments please.  

Thank u , Sirs, 

P.Padmanaabhan, advocate on 17th Aug 2012 at 01:17 am ist 


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