SARLA AGGARWAL Vs. ASHWANI KUMAR AGGARWAL

JUDGEMENT

(1.) PROPERTY No. 2, East Park Road, Karol Bagh, New Delhi was jointly owned by two A.P. Aggarwal & sons HUF and Gajanand Aggarwal & sons HUF. The property measures 2400 square yards. A.P. Aggarwal & sons HUF sold 1200 square yards of the suit property to defendant No. 2, by way of a sale deed. During pendency of the present suit, defendant No. 1, who is the son of late Shri Gajanand Aggarwal and is a member of Gajanand Aggarwal & sons HUF sold his share measuring 350 square yards in the suit property to defendant No. 2 by way of a sale deed. The plaintiff and two other sons of late Shri Gajanand Aggarwal are also alleged to have entered into an agreement to sell their share in the suit property to defendant No. 2. It is an admitted position that the share of defendant No. 1 in the suit property comes to 350 square yards on death of Gajanand Aggarwal.

(2.) THE prayer made in the suit was for a declaration that defendant No. 1 (sole defendant at that time), namely, Shri Ashwani Kumar Aggarwal had no right to sell undivided share until and unless the property is divided by metes and bounds or otherwise. The plaintiff is now seeking to amend the plaint so as to allege that transfer of 350 square yards of the suit property by defendant No.1 Shri Ashwani Kumar Aggarwal, who is her son, to defendant No. 2, during pendency of the suit is hit by the doctrine of lis pendens enshrined in Section 52 of Transfer of Property Act and is accordingly seeking cancellation of the sale deed executed by defendant No. 1 in favour of defendant No. 2.

(3.) SECTION 44 of Transfer of Property Act which deals with transfer by one of the co-owners of an immovable property reads as under:-