Whether mortgaged property belonging to joint family can be sold in auction?

 Upon hearing the learned Counsel, we find it quite shocking that against the upset price of Rs. 41,97,550/-, the property has been sold only for Rs. 5,50,000/-. It is an admitted fact that the property belonged to all the family members and the said property was not mortgaged by all, but was mortgaged only by a few family members to secure the debt of Respondent No. 6.

9. The above facts, which are not disputed, clearly reveal irregularities and therefore, the sale in favour of Respondent No. 10 must be set aside, but Respondent No. 10 should also be compensated as he had paid the purchase price of Rs. 5,50,000/- on 16.6.1998 to the Respondent Bank.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3812 of 2016.

Decided On: 29.03.2016

Olinda Femandes

Vs.

Goa State Co-operative Bank Ltd. and Ors.

Hon'ble Judges/Coram:

Anil R. Dave and A.K. Goel, JJ.

Citation:(2016) 13 SCC298

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When injunction suit filed by one co-owner against other co-owner is tenable?

"On a consideration of the judicial pronouncements on the subject we are of the opinion that;

(i) A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of the co-owner out of possession.

ii) Mere making of construction or improvement of,in the common property does not amount to ouster;

iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction prevent the diminition of the value and utility of the property;

iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction prevent such act which is detrimental to his interest.

In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner."

8. A perusal of the above quoted principle extracted by the Division Bench makes it abundantly clear that co-owner who is not in possession of any part of the property cannot seek an injunction against another co-owner unless any act of the person in possession of the property causes prejudice or is adverse to the interest of the co-owner who is in possession. Even raising of construction or improvement on any property does not amount to prejudice to the interest. In any case, it has no where been pleaded that the j raising or construction or doing any act by the defendant-respondents would diminish | the utility of the joint property.

Punjab-Haryana High Court

Ashok Bansal And Ors. vs Gurdas And Anr. on 25 February, 2002

Bench: M Kumar

Citation:2002 (4) Civil LJ 891

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When one co-owner can raise construction without consent of other co-owner?

A very important question has arisen as to whether the defendants could re-construct the building without plaintiff's consent when he alleged to be a co-owner of the property in question. Law on this point is well settled that a co-owner without the consent of the other owner can not raise construction to the exclusion of the other owner. But as discussed above, the position in the case in hand is not so. The plaintiff has admitted that the partition did take place by oral understanding. The only objection to such partition raised is that the same was not obtained through a decree from the Court. Prima facie the reading of the plan shows that because of mutual understanding the parties divided their properties in equal shares except the portion marked 'A' on the plan. Therefore, legal position that the co-owner can not appropriate the joint land to himself against the consent of the other co-owner does not apply to the facts of this case.

Delhi High Court

Ram Narain vs Ved Prakash on 8 November, 1994

Equivalent citations: 1994 IVAD Delhi 862, 56 (1994) DLT 692

Bench:Ms. Usha Mehra, J.

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