Can a co-sharer sell his share of joint property to a third party subject to the result of the partition suit?
Coram: Justice R.Rajesh Vivekananthan
A co-sharer can sell his share of joint property to a third party subject to the result of the partition suit.
Yes. A co-sharer can sell his share of joint property to a third party and the said alienation is subject to the result of the partition suit. Where the plaintiff's own case is that she is only a co-sharer entitled to a fractional share, a sale deed executed by the other co-sharers of the joint property will not bind her, and the trial court was bound to consider that position before decreeing the suit. (¶12)
Code of Civil Procedure, 1908 — O.XX r.4(2) — O.XX r.5 — O.IX r.13 — Limitation Act, 1963 — s.5 — Ex parte decree without reasons — Sufficient cause — Condonation of delay — Code of Civil Procedure, 1908 — O.XX r.5 — Ex parte decree — Reasoned order still required — Held: Every judgment must contain a concise statement of the case, the points for determination and the reasons for the decision, and an ex parte judgment must equally answer the requirements of a reasoned order. (¶12) Code of Civil Procedure, 1908 — O.XX r.5 — Co-sharer's alienation — Subject to the partition suit — Held further: A co-sharer may sell his share of joint property to a third party and the alienation is subject to the result of the partition suit; it does not by itself bind the other co-sharer. (¶12) Limitation Act, 1963 — s.5 — Sufficient cause — Conduct of the earlier counsel — Held further: The conduct of the earlier counsel and the circumstances in which the defendants remained ex parte constitute sufficient cause within the meaning of section 5 of the Limitation Act. (¶13, 15) Limitation Act, 1963 — s.5 — Liberal approach — Limitation pitted against merits — Held further: Where rejection of an apparently meritorious matter on limitation is pitted against a decision on merits, the Court is entitled to take a liberal approach. Delay condoned subject to costs. (¶17, 18)
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