Sale of suit property ignoring court injunction

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.

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

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.

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 3^rd 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 30^th August 2011 of fast track court here in the partition suit filed by the wife C  as 1^st 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/1^st 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/1^st 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 1^st plaintiff C   in 1995 and the 2^nd 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- 21^st 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- 21^st 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” . 

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

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

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 

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