My mother owns an ancestral agricultural land alongwith her brother. Now daughter-in-law of my mother's brother has filed a divorce suit against him and his son. That suit has reached delhi high court and in Sep 2014 - the high court gave an order that the defendants can't sell any property before informing the court. The order is as following: "Counsel for the defendants submits that the defendants have no intention of selling the suit properties. In case the subject properties are to be sold, the court will be informed in advance. This arrangement will continue till the application [I.A. under Order 39 Rules 1 and 2 CPC] is considered" In Jan 2015 my mother also became a defendant in that divorce suit on the request of plaintiff (my mother's brother's daughter-in-law) because plaintiff wanted a share in the ancestral agricultural land. Now we want to sell our undivided share in the agricultural land because we are getting a good offer for that. The divorce case is still pending in the high court and there have been no new orders regarding the agricultural land since above Sep 2014 order. Would my mother be bound by the order issued in Sep 2014 before she even became a defendant? Is there a legal clause in CPC which states that the orders given prior to summoning new defendants wouldn't apply to them and any relevant judgments that uphold this? We don't want to take even a small risk of contempt of court. Please advise should we go ahead with the sale and any legal precautions we can take.
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Your mother is not bound by order of September 2014 as she was not party defendant at that point of time
2) you can if you so desire inform the court of your plans to sell your share in property.
3) no contempt of court would be committed by your mother if she sells her share in property
See in this case since the mother is made party and order is of earlier of that it would be wise to seek permission of the court citing the order to sale your undivided share since that would not effect the ongoing suit in any manner.
1.The order of the high court apparently looks like illegal and not maintainable under the eye of law.
2. So if the order is still in force then file a petition seeking vacating the said order and on its rejection file SLP in Supreme Court.
3. The wife has no share in the property of husband and let alone in the property of her in laws and hence there is no way the restraint order can be allowed to be enforceable upon your mother.
4. So file a petition in high court seeking modification of the said order . You will get favorable order soon.
if the said order is for the said suit land or property then they are bound and they need to challenge your order in appellate court or set aside the decree in same court.
though the order is not binding upon your mother as she is a party to the suit now and has knowledge about the order, therefore, can't make a sale NOW,
order seems illegal and my advice is to file an application to vacate the stay order and on its dismissal appeal to the Supreme Court of India,
At what stag suit is at present. You can submit application in court that your mother owns this much share in land and absolutely free to use it in any manner.
Order is applicable to you, after becoming defendant. And am not getting, why land issue came in divorce case. Is there any grand child to them ?
And order of HC is not barring but only pre inform of sale. So no contempt. Just inform the court.
Since she has been impleaded as a necessary party to the suit she is bound by the present status of the suit, she cannot claim that the existing orders were passed even before she made as a party to the suit hence it would not be applicable to her. Since the entire property has been as suit schedule property, she cannot go for selling her share of property, especially when her share of property was not divided and she had been in separate possession of the same.
If she had been in separate possession of her share in the property and there is no restriction order against her share in the property then she can proceed with the selling of her share in the property to the prospective buyer.
Thanks for your response. I am not able to understand if what the court noted amounts to stay order or not. It appears to me that the court just noted an undertaking by other defendants that they won't sell the property. Court didn't say that the defendants can't sell their property it just noted that the other defendants (not my mother) are saying that they won't sell their share. Seems to me that this is an undertaking not a stay order. And since it wasn't given by us not sure why you say that it would be applicable to us. Please read the order again: "Counsel for the defendants submits that the defendants have no intention of selling the suit properties. In case the subject properties are to be sold, the court will be informed in advance. This arrangement will continue till the application [I.A. under Order 39 Rules 1 and 2 CPC] is considered" Also plaintiff (son of daughter in law of my mother's brother) can claim share in his father's or grandfather's property. What right does he have in the undivided share of grandfather's sister's property?
I have already advised on this account and you can follow the same.
See to know the share history of the property and on what basis she is claiming has to be seen.the defendant advocate has agreed for this arrangement to avoid going into merits at this stage if you want to sale seek permission clarify order and sale.
The court has passed an order in general which is common to all the defendants restraining them from selling the suit schedule properties without the permission of court, any steps taken to sell her share in the property by your mother may be considered as contempt of court, moreover her share of property has not been identified yet out of the suit schedule property, any move taken by your mother especially during the pending litigation may be viewed seriously by court.
Since your mother's share in the property has not been divided or partitioned yet, it becomes common property, your mother's share cannot be taken away by the plaintiff, in fact the plaintiff cannot claim any share out of his father's share in the property if his father is living.
If it's an Ancestral property and if he is a legal heir then he will have share
1) said order would not be applicable to your mother as no undertaking was given by her and recorded by court
2) grandson has no share in property of grand father sister
It is certainly an undertaking and binding on person who given it. Grand son has no claim in GF and father`s property.
And when undertaking was given, you were not party to the suit. Still inform the court before any sale.
Dear sir
Yes if the order is related to the land your mother want to sell then she would be bound by the order of the court as the order is related to the immovable land not the person.
