KAMLA BAI Vs. NATHURAM SHARMA

JUDGEMENT

(1.) The petitioner / defendant No.1 feeling aggrieved and dissatisfied with the order passed by the Trial Court under Order 39 Rule 1 & 2 C.P.C dated 28.06.2012 which is affirmed in Misc. Civil Appeal No. 20/2012 by Learned District Judge, Bhind, has filed this petition under Article 227 of the Constitution.

(2.) Summarize and admitted facts are as under :- The suit property was originally owned by deceased Prabhudayal and upon his death devolved upon the plaintiff and the defendants. The plaintiff is one of the sons, whereas defendant No.1 ( present petitioner ) is widow of another son. Other defendants are daughters of deceased Prabhudayal. All the four, i.e. plaintiff and defendants No. 1, 2 & 3 are having 1/4 share each in the property. The plaintiff / respondent No.1 instituted a suit before the Trial Court against the defendant Nos. 1, 2 & 3 stating that there is certain property of deceased Prabhudayal and after his death, 1/4 share of the said property is devolved to each of the parties by way of succession. It is contended in this suit that without getting the partition done, defendants are trying to sell the suit property which will be detriment to the interest of plaintiff because they have a preferential right on the said property under section 22 of Hindu Succession Act, 1956 ( HS Act). The suit is filed on twin grounds. Firstly, on the ground of preferential right to purchase the property flowing from Section 22 of HS Act and secondly, on the ground that unpartitioned property cannot be sold. Along with the plaint, an application seeking injunction was also filed. The petitioner filed written statement and also reply to the application seeking temporary injunction. The Trial Court allowed the application and granted temporary injunction by order dated 28.06.2012. Petitioner preferred an appeal under Order 43 Rule 1 before the Learned District Judge. The learned District Judge dismissed this appeal by order dated 17th October, 2012. These orders dated 28.06.2012 and 17.10.2012 are called in question in the present petition.

(3.) Shri Vivek Jain, learned counsel for the petitioner advanced two fold submission. Firstly, it is contended that in view of judgment of this Court in (Chain Singh Vs. Ramchandra and Ors,1992 RN 277 and (Madan Singh Vs. Papulal,2006 RN 207, the provision of section 22 of Hindu Succession Act has no application on agricultural land. Secondly, it is contended that Learned District Judge has rejected the appeal on the basis of judgment of Supreme Court in the case of (Hardeo Rai Vs. Sakuntala Devi & Ors, 2008 7 SCC 46. By taking this Court on certain paragraphs of this judgment, it is contended that judgment speaks otherwise. Shri Jain submits that it is held that even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of other coparceners cannot get possession, but may sue for partition. It is further contended that for the purpose of assigning one's interest in the property, it is not necessary that partition by meets and bounds amongst the coparceners must take place. If intention is expressed to partition the coparcener property, the share of each coparcener becomes clear and ascertainable and therefore, the Court below has erred in rejecting the appeal on the basis of this judgment.