• Can we move an application just to inform the High Court

My mother jointly owns an agricultural land alongwith her brother. This land was self-acquired by father of my mother. And since then it has passed on undivided to future generations. It is a vacant land and hasn't been partitioned or possessed by any party so far. Further my mother's father is no longer alive.

Now grandson of my mother's brother has filed a partition suit against his father (alive), grandfather (alive) and my mother claiming that this is an ancestral land and he is entitled to his share. That suit has reached delhi high court and in 2014 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"

Now we want to sell our undivided share in the agricultural land and we want to comply with above order of the court in order to avoid the risk of contempt of court. The next scheduled date of hearing for the case is on 6 Aug 2019. But we don't want to wait that long as we have a buyer with good purchase offer at the moment. 

Can we move an application just to inform the court of our intention to sell our undivided share? We are not asking for any relief/permission from the court - so someone told us that such an application for purely informing the court (without seeking any relief) isn't possible. We don't want to ask for permission of the court because the court order doesn't require us to do so and we can get caught in legal delay till the permission is granted.

If such an application is possible can we move it as an urgent application (that gets heard the same day)? If not, how else can we inform the court without explicitly asking for permission.
Asked 6 years ago in Property Law
Religion: Hindu

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20 Answers

You should file in application under order 7 rule 11 for rejection of plaint as the said property is the self acquired property of your maternal grandfather and hence he cannot claim any share during the lifetime of his father. You should also audios documentary evidence to show that the the subject property is a self acquired property and not a ancestral property under any circumstances. If you are able to do that, his case would be dismissed.

Also, you cannot sell the property  without taking the permission of the court as the order clearly states that if the subject property  is sold permission of the court would be required and if you do so without taking prior permission, you will be held liable for contempt of court.

 

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

You can file an affidavit that you are selling your undivided share in land 

 

since the courts are closed fir summer vacations file it after reopening of court 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

A miscllaneous application seeking permission in main matter can be filed before the court it will be taken up by the court see an application in form of informing and seeking permission for formality can be filed.

See court will give notice to other parties urgent application without notice to other party is not possible.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

If there is an order from the Civil Court under Order 39 Rule 1 This is temporary injunction and condition food by the court must be followed in that case you have to inform the court that you are intending to sell the property any third position in the High Court must have some purpose and seeking the direction from the High Court as the injection has not been contested in High Court so there is no point that you are going to the high court to get the high court direction in this regard and there is no point of informing the high court if you are not seeking any direction

Vimlesh Prasad Mishra
Advocate, Lucknow
6851 Answers
23 Consultations

Yes you can move an application. Yes you can make it urgent the say of opponents will be called for the same

Prashant Nayak
Advocate, Mumbai
34514 Answers
249 Consultations

It would be better for you to take proper legal guidelines by showing complete files of your case to an advocate so that you can take a right path to handle your issues.

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

1. You will have to move an application and the application will have to be allowed by the court. 

2. Just informing the court will not help 

3. File an application in the pending case and take the permission of the court otherwise you will be liable for the contempt of the court. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

You need to find buyer details from the property dealer mention details in the affidavit together with sale consideration to be received by you 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

First of  all  since  the  next date of hearing  is  in  the  month  of August, you  cannot file any petition now without filing a petition for  hearing advance.

First the hearing advance petition after serving copies to all opposite parties is to be decided by  court. 

Then the court will  pass an order  for the hearing of next date in a short duration.

On that  date you  may have  to file  the  petition seeking  court  permission  to sell your  undivided share in the  property by serving  copies  to opposite  party.

The plaintiff will then object to this very strongly  since  the  suit  is   not  decided  yet it would  be  prejudice to  permit the petitioner to sell her share in the property.

This will lead to more legal complication and he may even bring an injunction restricting you from alienating the property in any manner which will put a seal to all your thoughts about it in future too.

You may discuss at length with your advocate and decide further course of action.

 

T Kalaiselvan
Advocate, Vellore
89976 Answers
2492 Consultations

You have not properly understood the court order.

It is a misinterpretation.

Just information to court will not solve the problem.

Moreover you may have to follow the procedures properly, it is not as easy as you think about it.

 

You may discuss with your advocate properly on this before deciding anything hastily.

 

 

T Kalaiselvan
Advocate, Vellore
89976 Answers
2492 Consultations

That means that you will have to file an application and the application will be heard by the court and the court will allow the application.

this is the usual cource that take place in case of such orders.

 

regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

Also the person purchasing the property will step into your shoes and will be subjected to the outcome of the litigation 

 

regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

1) you must have received an offer from buyer 

 

2) in affidavit it can be mentioned that you have received an offer from buyer to purchase your undivided share at x amount 

 

3) that you are selling your share for x amount subject to full payment being received by you within y period 

 

4) ther is no stay order passed by court restraining sale of your undivided share . You were not party to suit proceedings when order was passed . You were only made party later 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

The court order is that you have to inform the court about the selling of property before selling it, hence in the legal language it is nothing but  seeking permission of court to sell the property before selling it. The court is not restricting you to sell the property but it is insisting that you have to inform court about it, you cannot just like that inform court about your intention to sell it, you have to file a petition before court in this regard, the court will hear the objections of the opposite party and then only it will decide to permit you to sell the property on merits in your side.

You must understand the court language to that of the general language which will make more difference.

 

 

T Kalaiselvan
Advocate, Vellore
89976 Answers
2492 Consultations

Dear sir

It is not possible to just move an application and sell the land as it will be contempt of courts order. 

You have to ask for permission from the court for selling your share of land. 

As it is stated in the order that 

This arrangement will continue till the application 
[I.A. under Order 39 Rules 1 and 2 CPC]
is considered"

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

Modification of order would take more than 2-3 court hearings 

 

2) you have to take out notice of motion 

 

3) disposal of motion may take 2 years or so depending upon pendency of cases before the HC 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

There's nothing wrong in applying for seeking to amend the prayer.

If the amendment is in your interest and justifiable then you may proceed as per the advice received from your advocate who may take decision based on the prevailing circumstances.

T Kalaiselvan
Advocate, Vellore
89976 Answers
2492 Consultations

You can in affidavit mention that you have received an offer for purchase of your share in property for x amount and that you intend to sell your share to him . The objective being to make full disclosure of all facts to the court 

 

2) if you don’t disclose the details court can always take the stand that your affidavit is devoid of material particulars 

 

3) never suppress any material facts . 

 

4) you can increase offer amount if prices increases . Make revised offer due to increase in prices 

Ajay Sethi
Advocate, Mumbai
99775 Answers
8145 Consultations

1. Buyer's details are not required to be disclosed before the court until and unless the deal is finalized and you have received earnest money for the sale of the property.

 

2. Original offer would be legally binding to you. It cannot be increased.

Siddharth Jain
Advocate, New Delhi
6617 Answers
102 Consultations

1. There are certain procedures prescribed in the law to follow in this regard and not as per your will and wish.

2. The original offer will be binding.

T Kalaiselvan
Advocate, Vellore
89976 Answers
2492 Consultations

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