The second aspect of the matter raised by the learned counsel for the respondents, however, needs careful consideration. It is true that the purchasers of undivided interest of a coparcenery can have no right to retain exclusive possession of a portion of the coparcenery property on the basis of sale in their favour but they can certainly claim a right in equity to insist or compel non-alienating members not to dispossess them without recourse to law. The relief of injunction is essentially an equitable relief which now is also governed by statute such as Specific Relief Act. The relief claimed being essentially an equitable relief, the right in equity existing in a purchaser to protect his possession till filing of a suit for general partition, can be granted to him even in a suit instituted by him of the present nature. In the Ful Bench case (AIR 1973 Madh Pra 222) (supra) the equitable right of protecting possession, pending filing of a suit for general partition, was recognised in a suit brought by the non-alienating members for exclusive or joint possession of the joint property sold to the purchasers; but, in my opinion, the principles of equity, justice and good conscience would permit such a protection being granted even in a purchaser's suit for mandatory injunction. If the purchaser has been placed in possession of a portion of coparcenery property, he can be allowed to be dispossessed only through a process of the Court and not by permitting the alienating members to take law into their own hands by use of physical force.
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When the
purchaser of undivided interest of coparcenary property is in
possession of a portion of a joint property he can compel the non
alienating members not to dispossesses him without recourse of
law. Therefore, the grant of equitable relief to protect his
possession till the filing of the suit for joint partition and a suit for
mandatory injunction is permissible
Madhya Pradesh High Court
Maharu And Ors. vs Dhansai And Ors. on 21 February, 1991
Equivalent citations: 1991 (0) MPLJ 464, AIR 1992 MP 220
Bench: D Dharmadhikari
1. This second appeal is by the defendants, against whom a decree of mandatory injunction has been granted by the two Courts below.
2. Admittedly, the appellants are members of a coparcenary. The respondent (plaintiffs) by registered sale deed dated 13/5/1981 (Ex. P/I) purchased from the appellant No. 1, Maharu, the alleged manager of the coparcenery, two acres of land out of khasra No. 5/1-k total area 7.39 acres. The plaintiffs as purchasers claimed to have been placed in possession of the lands purchased by them. The cause of action for the suit was said to have been arisen because the defendants (i.e. appellants Nos. 2 to 4), under a claim that the property was an undivided coparcenery property, tried to take forcible possession of the lands from the plaintiffs/purchasers. The two Courts below held that the purchasers' possession can be protected by grant of a decree of mandatory injunction.
3. For the purpose of this second appeal facts not in dispute, and on which the findings of the two Courts are conclusive as binding, are that the suit lands form part of a joint coparcenery property consisting of the appellants as its members. The appellant No. 1, Maharu, could transfer only his undivided interest in the suit lands. There is concurrent finding of the two Courts below that the purchasers were placed in possession of two acres of land out of Khasra No. 5/ 1-k which was sold in their favour by the alienating coparcener, the appellant No. 1,
4. Legal question for decision in this second appeal is whether a purchaser of an undivided interest of a coparcenery is entitled to grant of mandatory injunction against the other members of the coparcenery to restrain them from joint possession and common enjoyment of the property alienated and what is the remedy in such a situation of the purchaser who has been placed in possession of a specific property by the alienating member of the coparcenery.
5. The opinion expressed on the above question by the first appellate Court in para. 15 of its judgment is as under:--
"Reference to the property being ancestral or being proved it to be so, in my opinion, will not help the appellant/defendants to nonsuit, the plaintiff in the instant proceedings. They may have separate remedy to secure appropriate relief with respect to joint possession or for that matter set aside the sale deed. But in no case their endeavour to forcibly dispossess the vendee can be appreciated. The plaintiff Dhansai is entitled to protect his right to be in possession for which relief of permanent injunction was the only remedy available. I, therefore, agree with the findings recorded by the learned Civil Judge and hold the judgment and decree passed by him."
6. In this second appeal the following substantial questions of law have been framed for decision:--
(1) Whether, in the facts and circumstances of the case, the plaintiff had no right to remain in possession of the suit land and their remedy was to bring a suit for general partition?
(2) Whether, otherwise also, the decree passed in favour of the plaintiffs is contrary to settled principles of law and requires modification?
7. The contention of the learned counsel appearing for the appellants, as members of the coparcenery, is that the plaintiffs, as purchasers of an undivided interest of a coparcener can have no larger rights than what the alienating member possessed and that right is only of joint possession and for seeking a partition of the family property. Learned counsel, therefore, urged that the purchaser who steps into the shoes of alienating member is only entitled to be placed in joint possession of the coparcenery property and seek general partition so as to claim in equity allotment of the alienated property to the share of his vendor, if that is possible. The purchaser in no case can, however, claim injunction restraining the non-alienating coparceners from common use and enjoyment of the joint family property. Reliance is placed on a single Bench decision of Naik, J. in Narayan v. Mahadeorao, 1971 MPLJ 239 and Full Bench decision of this Court inRamdayal v. Manaklal, 1973 MPLJ 650 : (AIR 1973 Madh Pra 222). On the aforesaid decisions of this Court, the appellants contended that the remedy of purchaser of an undivided interest of a coparcenery is only to bring a suit for general partition but he has no right or title to bring a suit for mandatory injunction.
8. Learned counsel appearing for the respondents placed reliance on an unreported single Bench decision of this Court in Second Appeal No. 162 of 1979, decided on 19-11-1984 in which the purchasers were granted a similar relief of injunction. Relying on the aforesaid decision learned counsel for the respondents/ purchasers urged that where the purchaser has been placed in possession of a specific portion of a coparcenery property, the non-alienating members have no right to take law into their own hands and forcibly dispossess the purchasers. The remedy of the non-alienating members of the coparcenery, in such a situation, he submits, is to bring a suit for possession or for general partition:
9. Before deciding the question arising in the case it is necessary to restate the settled law with regard to the alienation of coparcenery property. The Full Bench (AIR 1973 Madh Pra 222) (supra) of this Court has held that, according to the Mitakshra law, as administered in Madhya Pradesh, a coparcener can alienate for value his undivided interest in coparcenery property without the consent of the other coparcener, but he has no right to alienate, as his interest in any specific property belonging to the coparcenery, for no coparcener can before partition claim any such property as his own; and if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. The Full Bench opines that if the purchaser has obtained possession, non-alienating coparceners are entitled to sue for and recover possession of the property for the benefit of the joint family including the vendor. The remedy of the purchaser is only to file a suit for general partition. If a suit is brought by the alienating members against the purchaser to reclaim the property to the coparcenery, there is only an equitable right, which can be granted to the purchaser to protect possession, by staying execution of the decree for a specified period to enable the purchaser to bring a suit for general partition. The Full Bench in the aforesaid case was, in fact, considering the question as to under which circumstances the equitable right of staying the execution of the decree in favour of the purchaser, to enable him to bring a suit for general partition, can be granted. The Full Bench was of the view that if the property sold is less than the share of the vendor or approximately equal to his share then in such a situation the aforesaid equitable relief can be granted to the purchaser to protect his possession pending decision of his suit for general partition.
10. From the statement of law by the Full Bench it can no longer be a subject of debate that the present purchasers could only obtain under the sale an undivided interest of the alienating coparcener and a right to claim general partition by way of suit. The purchaser only steps into the shoes of the transferor and is invested with all the rights and is subject to all the disabilities of the transferor. He at best, is entitled to only joint possession with the non-alienating co-owners and if resisted he may recover joint possession by a suit. He is, in fact, only bound by the arrangements, if any, as to exclusive possession by different co-owners entered into, before he acquired the interest in the joint property. In this case there is nothing on record to show that his vendor, under a mutual arrangement amongst the coparceners was in exclusive possession of the land transferred by him. Even under the principles of Section 44 of the Transfer of Property Act the transferee from a co-owner acquires the transferee's right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same and subject to the conditions and liabilities affecting, at the date of transfer, the share or interest transferred to him. The aforesaid section also only assures to transferee's right to joint possession or common enjoyment of the property but does not confer on the transferee any right to exclusive possession even where the transferor was in such a possession. There are a few cases such as Sukh Dev v. Pari, AIR 1940 Lahore 473-474 and Chanderbhan v. Jailal, AIR 1964 Punjab 435 which take a view that if there existed any arrangement inter se between the coparceners or co-owners under which one of them is in exclusive possession of a portion of joint property, a transferee from him, is entitled to enjoy the benefits of exclusive possession by virtue of the transfer in his favour.
11. In the instant case, however, there is no pleading of any such inter se arrangement between the coparceners. It is also not the case of the purchasers that the alienating member who placed them into possession, was in exclusive possession and enjoyment of the suit land sold in their favour. In a situation obtaining as in this case the purchasers, therefore, had only a right to remain in joint possession of the coparcenery property and to work out their rights by bringing a suit for general partition and claim in that suit allot ment of the alienated property to the share of their vendor. The purchasers can claim no larger right than what their vendor, as member of the coparcenery, possessed.
12. The second aspect of the matter raised by the learned counsel for the respondents, however, needs careful consideration. It is true that the purchasers of undivided interest of a coparcenery can have no right to retain exclusive possession of a portion of the coparcenery property on the basis of sale in their favour but they can certainly claim a right in equity to insist or compel non-alienating members not to dispossess them without recourse to law. The relief of injunction is essentially an equitable relief which now is also governed by statute such as Specific Relief Act. The relief claimed being essentially an equitable relief, the right in equity existing in a purchaser to protect his possession till filing of a suit for general partition, can be granted to him even in a suit instituted by him of the present nature. In the Ful Bench case (AIR 1973 Madh Pra 222) (supra) the equitable right of protecting possession, pending filing of a suit for general partition, was recognised in a suit brought by the non-alienating members for exclusive or joint possession of the joint property sold to the purchasers; but, in my opinion, the principles of equity, justice and good conscience would permit such a protection being granted even in a purchaser's suit for mandatory injunction. If the purchaser has been placed in possession of a portion of coparcenery property, he can be allowed to be dispossessed only through a process of the Court and not by permitting the alienating members to take law into their own hands by use of physical force.
13. In view of the discussion aforesaid, the present appeal by the members of the coparcenery only deserves to be partially allowed. The decree granted by the two Courts below is modified by incorporating the following terms therein, in the light of the decision of the Full Bench (supra).
The decree for mandatory injunction granted in favour of the respondents/purchasers shall be operative only for a period of six months from the date of passing of the decree in this appeal and if before the expiry of that period the purchasers bring a suit for general partition then the injunction would continue until disposal of that suit but if no such suit is brought within the period above specified then the injunction granted under the decree shall stand automatically vacated.
14. In view of the partial success of the appeal the parties will bear their own costs of this appeal.
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