Sarla Aggarwal v. Ashwani Kumar Aggarwal & Anr.

1. The present appeal is directed against the order dated 08.07.2013 whereby the suit of the appellant was dismissed. The appellant is the mother of the respondent/defendant; she filed CS (OS) No. 1548/2007 claiming a declaration that the son i.e. the first defendant had no right to sell any undivided portion of the suit property until it was 2013:DHC:4881-DB RFA (OS) No.121/2013 Page 2 partitioned by metes and bounds or otherwise. The suit property is property No. 2, East Park Road, Karol Bagh, New Delhi and is jointly owned by A.P. Aggarwal & Sons HUF and Gajanand Aggarwal & Sons HUF. The entirety of the property is to an extent of 2400 sq. yards. A.P. Aggarwal & Sons HUF sold 1200 sq. yards of the suit property to second defendant by way of sale deed; the second defendant was impleaded during the pendency of proceedings. The first defendant i.e. the appellant’s son and a member of Gajanand Aggarwal & Sons HUF had a share in the suit property to the extent of 350 sq. yds, which he, during the pendency of the suit, transferred to the second defendant by way of a sale deed dated 24.12.2007. As observed earlier, at the request of the plaintiff/appellant, the second defendant was impleaded in the suit on 2nd December, 2008 by an amendment. The suit was also consequently sought to be amended and a decree of permanent injunction to restrain the defendant No.1 from parting with the possession of any portion of the suit property was sought to be added.

2. On 15th October, 2012 by the first impugned order, the Court rejected the application for amendment whereby a prayer for an injunction RFA (OS) No.121/2013 Page 3 against the defendant No.1 and a challenge to the subsequent sale by defendant No.1 during the pendency of the suit was sought to be assailed. The Court took special note of the fact that the sale was made on 24th December, 2007 where as the application was filed in September, 2011.

3. The learned Counsel submits that the impugned judgment and order as well as the previous order of 15.10.2012 are mutually inconsistent. The order of 15.10.2012 was premised upon the fact that Section 44 of the Transfer of Property Act, 1882, entitles the co-owners to sell his undivided share at the same time protects the other co-owner in possession from any harm or injury by mandating that the third purchaser would not be entitled to claim possession as of right to the joint possession or other common or part enjoyment of the undivided share of the property would not act as a bar to the transferee seeking to work out his rights and effects through a separate partition suit under Section 4 of the Partition Act, 1893.

4. It is contended by counsel on behalf of the appellant that both impugned orders are perverse and unfounded inasmuch as the appellant’s rights have been severely and irreparably affected and that RFA (OS) No.121/2013 Page 4 there is every likelihood that she may be dispossessed or at least the defendant’s actions may result in injury to her domain or her possessory or territorial rights over the property. It was submitted that the impugned final judgment and decree dated 8.7.2013 has in fact placed a seal upon the appellants right to challenge the sale deed by which the second defendant was sought to be inducted as co-owner in the undivided suit property.

5. This court has considered the order dated 15.10.2012 and the final judgment and decree of dismissal as well as submissions of the appellant and the materials on record. The first order impugned in the present appeal i.e. the order dated 15.10.2012, this Court notices, sets out an obvious and well established legal proposition arising from Section 44 of the Transfer of Property Act read with Section 4 of the Partition Act, 1893. The cumulative effect of both the provisions is that though a third party purchaser is entitled to a claim title to his undivided portion of a joint property, he cannot claim, as of right, his entitlement to possession. In any event, his rights vis-a-vis the other co-owner will have to be worked out in a proper, substantive proceeding. This was explained in Gautam Paul v. Debi Rani Paul RFA (OS) No.121/2013 Page 5 and others AIR 2001 SC 61, which has been cited and applied by the learned Single Judge in the order dated 15.10.2012. So far as the contention with regard to the prejudice caused to the appellant on account of the first impugned order is concerned, this court is of the opinion that having regard to the settled position of law and having regard to the nature and entitlement of the co-owner to the undivided share in the property, any question of challenging the sale of an undivided share of the property would not arise. An undivided owner like the first respondent, in the absence of any legal impediment or prior encumbrance would not be precluded from parting with his title as in the present instance. In any event the challenge sought to be made to the sale was considerably delayed. The sale took place on 24.12.2007, the suit was filed on 14.08.2007 and the application for amendment was made in September, 2011. If the plaintiff/appellant was aggrieved by such sale it was open to her to challenge it on whatsoever ground available to her within the prescribed period of limitation. Consequently, given the overall conspectus of circumstances and the nature of relief sought in the proceedings and on an overview of Order 2 rule 2 of the CPC as well as provisions of RFA (OS) No.121/2013 Page 6 Section 6 of the Specific Relief Act, it is amply clear that the attempted challenge to the sale was barred we see no reason to take a different view in the matter. There is no illegality or infirmity in the impugned order dated 13.10.2012 of the learned Single Judge.

6. As far as the final order dated 8.7.2013 is concerned, in our opinion the learned Single Judge had held that since the decree of declaration in respect of the inability or so-called inability or disability of the first defendant/respondent from selling the undivided portion did not survive, the challenge to the transfer or any other consequential relief could not have been agitated and no triable cause of action survived. This court finds no infirmity in the same and, therefore, affirms the impugned orders and the dismissal of the suit. The appeal is, therefore, dismissed.

S. RAVINDRA BHAT, J

(JUDGE) NAJMI WAZIRI, J (JUDGE) SEPTEMBER 24, 2013 pkv