Civil application to sell 5 acres of a suit property where the appellants' share was contested. Court allowed sale on condition of depositing proceeds with banks covering dues.
Permission granted to sell 5 acres of the suit property with conditions to deposit sale proceeds with creditor banks.
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IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO.1688 OF 2011 IN
FIRST APPEAL NO.1319 OF 2007
Narendra S. Mundada & Anr. ...Applicants. v/s. Mrs. Subhadra Kamthe & Ors. ...Respondents.
Mr. D.A.Nalawade i/by Ravindra A. Lokhande ,advs. For the Applicants. Mr. Jaydeep S. Deo, adv. For the Respondent Nos.1 to 3.
CORAM : J.H. BHATIA, J. DATED : AUGUST 23 , 2011.
P.C.
in the First Appeal No.1319 of 2007 filed by the original plaintiffs. Respondent nos.1 to 3 in this application are the original plaintiffs and the appellants. They filed Special Civil Suit No.1260 of 1999 claiming 1/15th share each in suit property gat no.739 admeasuring 5 Hectares 94.2 R. According to the plaintiffs, defendant nos.3 and 4 are their brothers and they had 6/15th share each in the property, as it is ancestral joint family property. They challenged the sale of the property in favour of the defendant nos.1 and 2 under the alleged power of attorney executed by the plaintiffs and their brothers. Suit was for partition and
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separate possession to the extent of share of the plaintiffs. Suit was dismissed and they preferred First Appeal No.1319 of 2007. Appeal is admitted and pending for final hearing. Earlier original defendant nos. 1 and 2, i.e., the present applicants had filed Civil Application No.5829 of 2008 seeking leave to sell five acres of land out of 14 acres. In that application, permission was refused by this Court on 29th July, 2009, as at that time, it was represented that the plaintiffs as well as their brothers had 1/5th share each. Original defendant nos.1 and 2 have filed the present application again seeking leave to sell 12 acres of land out of the total land on the ground that the several loans have been obtained from several banks and the banks are likely to take action under the Securitization Act. Defendants and their families are suffering from serious ailments and they want to clear all the dues to get rid of the action under the Securitization Act.
3 After some discussion, the learned counsel for the applicants agree that if the permission is granted for the sale of 5 acres of land, purpose may be served. The learned counsel for the original plaintiffs/respondents opposed this request. According to him, the Power of Attorney, on the basis of which, the suit property was purchased by the defendant nos.1 and 2, was forged and bogus. According to him, if
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permission is granted for sale of the land, interest of the plaintiffs will not be protected.
4 It is material to note that according to the plaintiffs themselves, it was joint family property and each of the plaintiffs had 1/15th share while their brothers had 6/15th share. In view of this, total share of all the three plaintiffs is only 1/15th . When the earlier application was rejected on 29th July, 2009, it was represented that each of the plaintiffs had claimed 1/5th share, which was not correct. The learned counsel for the applicants has pointed out that the defendant nos.3 and 4 are the brothers of the plaintiffs and hold 6/15th share each. According to the plaintiffs themselves, they are signatories to the sale deed and they did not challenge the sale deed. In view of this, the dispute is restricted to the share of the plaintiffs, which is 1/5th in the total land, area being 5 Hectares 94.2 R, which is slightly less than 15 acres. If the applicants are allowed to sell 5 acres of land, still interest of the plaintiffs can be fully protected, even if they succeed in the appeal and the suit is decreed. The learned counsel for the applicants also makes a statements that the complete sale proceeds will be deposited with the different banks to whom amounts are due.
5 In view of the above, applicants/original defendant nos.1
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and 2 are hereby allowed to sell 5 acres of land out of the suit property,
with condition that they shall deposit sale transactions with the creditor banks within two weeks after the completion of sale transaction and shall
submit details of the sale transaction as well as deposits made with the
banks, within four weeks thereafter.
(J.H. BHATIA,J.)
1 issue framed by the court
Whether leave to sell 5 acres of disputed suit property should be granted to the applicants bearing a title defect pending resolution.
Narendra S. Mundada & Anr.
Mrs. Subhadra Kamthe & Ors.
J.H. BHATIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
