• Suit for permanent injunction restraining interference vs injunction against alienation

I am a plaintiff in a case of permanent injunction restraining the defendants from interfering in our peaceful possession . The said property was gifted by mother to me and my brother in 2012. My mother acquired the property from her father through registered sale deed in 1973 for a valuable consideration. My grandfather also acquired the property in 1944 through registered sale deed. The said property was formed & obtained after permission of Government in 1937. 100% genuinely formed property. When I filed the case of permanent injunction not to interfere in our peaceful possession the defendants just filed a vakalath and did not attend the case . Now it is for plaintiff evidence stage. Instead of appearing for this case they have filed a false counter case against my mother and me and my brother. They have narrated that it is ancestral property and my mother has obtained falsely. We have filed written statement. Both the cases are pending in the same court hall. Can two cases be filed against the same subject matter? Principle law of justice? Refer case law ? Can father sell property to daughter ? Refer case law. we cant afford to manage two cases. How do I represent my case myself personally? Procedure? I am educated in finance and accounts field . I know taxation laws and hence law..
Asked 1 year ago in Property Law
Religion: Muslim

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6 Answers

The subject matter of their case is different to that of your case hence their case is maintainable.

You have to fight that case on merits with the support of documentary evidence in your support.

T Kalaiselvan
Advocate, Vellore
89977 Answers
2492 Consultations

Both cases can be clubbed together 

 

2) they are at liberty to file counter suit 

 

3) father is always at liberty to sell property to daughter 

 

4) you must engage a local lawyer and file detailed reply denying the allegations 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

Dear Client,

I want to let you know that,

It is permissible under Indian law to bring two different suits based on the same subject matter if the relief sought in each is different and not barred by the principles of res judicata as applied by a competent court (Section 11, Code of Civil Procedure,1908). Since your suit is on permanent injunction restraining interference, whereas the counter claim by defendants involves an averment that the property is an ancestral one, if they give rise to different questions of law each may be allowed to proceed with the court dealing with each case on their respective merits.

With regard to the contention of the defendants that the property is an ancestral one, a registered sale deed as in the case of acquisition made by your grandfather in the year 1944 would certainly break the chain. This would mean your mother bought the property as self-acquired, not ancestral. A father can sell property to his daughter by way of executing a sale deed, if it is his self-acquired property, and the rules are stipulated under Section 54 of the Transfer of Property Act, 1882. It has been held in a series of judgments by the courts that once the property is acquired by purchase, it cannot be termed as ancestral property (See S. Sai Reddy v. S. Narayana Reddy, AIR 1991 SC 2086).

You could represent yourself under Order III Rule 1 of the CPC, whereby parties are allowed to represent themselves. To adequately represent, ensure you have all documentary evidence, be it a sale deed, and prepare to argue on facts and legal principles, more so on the point of whether the property is ancestral or self-acquired.

Thank you.Hope this answers your query.

Anik Miu
Advocate, Bangalore
11014 Answers
125 Consultations

 

Dear Sir,

There is a procedure to club both the cases as parties and subject matter in both the cases is one and the same. Better file a miscellaneous Civil application separately under section 151 CPC before Hon’ble Principal District Judge who may direct the trial Court judge to club both the cases and conduct simultaneously.

Kishan Dutt Kalaskar
Advocate, Bangalore
6230 Answers
499 Consultations

  1. In your suit only Vakalath is filed. You can press for ex parte evidence and obtain decree against defendant for not to interfere in your possession.
  2. By filing suit for injunction not alienate, your possession is admitted by the plaintiff in his suit.
  3. Reliefs in both the suits are distinct, such suit is maintainable.
  4. Father can sell an immovable property  to daughter, if it is self acquired. He can also sell his share in ancestral property.
  5. You can very much contest your case.

Ravi Shinde
Advocate, Hyderabad
5125 Answers
42 Consultations

 - As per Muslim Law, there is no distinction between the self acquired or ancestral property. 

- Further, A Muslim is allowed to give away his entire property, whether the property is self acquired or ancestral, during his lifetime by gift, but only one-third of the total property can be bequeathed by WILL.

- Since, your mother acquired the property by way of registered sale deed, then she was having her right to transfer the same by way of gift deed to anyone 

- Further, as there is a registered sale deed in favor of mother , then it cannot be challenged after the demise of her father. 

- Yes, two cases can be filed on the same subject matter if the cause of action is different, however, two suits touching the same cause of action is not maintainable. 

- If the property is self acquired property of the father , then he has right to sell it to any person including daughter without the consent of others. 

Mohammed Shahzad
Advocate, Delhi
15814 Answers
242 Consultations

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