• Temporary injunction on sale of property

our late father&his late brother having joint land property undivided but 50% each share. our cousins are objecting for sale and have obtaintained an interrim injunction for maintaing the statusco till 26/2/2015. please advcice us how should we proceed.
Asked 2 years ago in Property Law from Kolkata, West Bengal
1. Your or your father cannot be restrained of claiming your respective due share. I am sure the injunction is imposed on sale and not on getting your share.

2. To get back your share file a suit for partition if the same is not already filed wherein you can claim your due share.

3. Unless and until decree is passed the court is not going to lift injunction order.

4. However you may make out of court settlement and get a compromise decree passed about your respective share and boundary of the same.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
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Hello,
1) Although an injunction was obtained as you have a legitimate share in the property jointly owned by your late father it can not be taken away by anyone.

2) To get your due share in the property you need to file for partition making the objecting cousins  respondents as they are objecting to the partition.

3) Once the partition is ordered you will have no problems getting the stay vacated as all you will need is to file a petition along with a copy of the order of partition.

4)If you have not yet filed  for partition, send a legal notice demanding partition and if they still do not co- operate  go ahead with Partition Suit.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1. The order of injunction issued by the HC is absolute and has to be obeyed. 

2. It appears from your query that the stay order has been  passed against selling the property. If interim injunction has been issued and you are aggrieved by it then you may challenge it in the High Court. 

3. You have the right to contest the lawsuit filed by your cousins. 

4. The stay is not likely to be lifted by the court which has issued it till the disposal of the case.

5. Grant of stay by the court does not prejudice your right to cull out your lawful share in the property by filing for partition in the court.
Ashish Davessar
Advocate, Jaipur
18266 Answers
451 Consultations
5.0 on 5.0
Hi, as the temporary injunction is operating against you so you can't sell the land you have to maintain status quo.

(2) Contest the case on merits and vacate the interim order filling  objection to interim application and also file application for vacating the stay  and  file written statement.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) under section 44 of transfer of property act a co owner has right to sell his share in the property .

2) once sale is made buyer steps into the shoes of the co owner and has right to demand partition of the property . 

3)in the present case your cousins have obtained a stay restraining you from selling the property 

4) you have to contest the suit on merits . file your detailed reply and draw attention to provisions of section 44 of TP Act 

5) you can file suit for partition for division of property by metes and bounds
Ajay Sethi
Advocate, Mumbai
23405 Answers
1230 Consultations
5.0 on 5.0
1. You have the right to sell your share of the jointly owned property and in that event your buyer can file a partition suit,

2. However, before selling the said property you shall have to pre-empt it i.e. offer to sell it to the co-owners at the same price at which your buyer has agrred to buy from you,

3. Since, injunstion has already been granted on the sale of the entire property, you should now file a partition suit,

4. Once the property has been partitioned, you can apply for vacating the stay order applicable  on your partitioned property and sell the same after pre-empting the same as mentioned above.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
Partition is the solution for getting a remedy in this situation because your father’s late brother has 50% of share in that property. So first fix the share then sold your (father’s) share in the property. Now you can't sell the property, you have to maintain status quo . 

Remedy 

File suit for partition 
If possible settle the Injunction suit amicably or contest suit on merits 
If you have dare need of transfer the property then execute a sale deed after the event buyer can file a partition suit.
Ajay N S
Advocate, Ernakulam
1918 Answers
19 Consultations
5.0 on 5.0

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