Shri Yeshwant Keshav Vaigankar; and His wife and Mrs. Yoshovita Yeshwant Vaigankar vs Shri Ramesh Keshav Vaigankar and Others

N. A. Britto, J.—This is defendants Second Appeal arising from R.C.S. No. 82 of 2003. Heard learned Counsel on behalf of the parties.

The dispute between the parties who are brothers is as regards property surveyed under No. 79/46 admeasuring 200 sq. meters. The case of the plaintiff is that the said property was purchased by their father by deed dated 10-12-1936. The case of the defendants is that there was an oral partition and the suit property was allotted to the defendants. The trial Court dismissed the suit filed by the plaintiff but the learned first Appellate Court reversed the Judgment of the trial Court and decreed the suit holding that the property was one of the co-ownership and therefore the defendants could not be allowed to change the nature of the suit property.

It appears that the defendants were constructing a boundary wall to the suit property and it is the contention of Mr. D. Pangam, learned Counsel appearing on behalf of the defendants that the said construction was being done only to protect the property and therefore no injunction could be issued against the defendants and in this regard Mr. Pangam has placed reliance on the case of Mehanga Singh and others v. Balbir Singh(, (2003) 9 SCC 226) . Learned Counsel has further submitted that the defendants even being co-owners of the said property could have constructed upon the same and the remedy of the plaintiff was to seek partition and in this regard Mr. Pangam has placed reliance on the case of Kochkunju Nair Vs. Koshy Alexander and Others, .

On the other hand, Mr. Sudin Usgaonkar, learned Counsel on behalf of the plaintiff has placed reliance on Section III and particularly article 1270 of the Civil Code, 1867 and more particularly on Clause 4 thereof which provides that none of the share holders are entitled, without the consent of others to do alterations in the immovables even if they deem it useful, nor compel to arrogate the movables and immovables of the Society. Learned Counsel has further submitted that, the decisions cited would be inapplicable to the facts of the case, considering the law in force in this State.

In reply, Mr. Pangam, learned Counsel has submitted that Clause 1 of the said Article provides that all the share holders are invested with equal power of administration and the acts performed by one shall be binding on others, save their right to raise objection until the acts do not produce legal effect. Learned Counsel therefore submits that the construction of a boundary wall could be considered to be an act of administration.

In the first case referred to herein above the principle which emerges is that both the parties having been the co-owners of the well no injunction could have been granted restraining the co-owners from repairing the well and drawing water from it. The second case was decided entirely in a different context but the Apex Court did note that ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property, he has a right to be put in possession thereof. All the three essentials are satisfied in the case of a co-owner of land. All co-owners have equal rights and coordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of other co-owner or co-owners. Each co-owner has, in theory, interest in every infinitesimal portion of the subject-matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others. The Apex Court also referred to a three Judge Bench decision in Sri Ram Pasricha Vs. Jagannath and Others, where the following statement of law appears:-

Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place.

The juridical concept of common property has been defined by Article 2175 of the Civil Code, 1867 which, inter alia, provides that common property is a property which belongs to two or more persons simultaneously .Article 2177 deals with prohibition of disposal of common property by one co-owner and there is already a pronouncement of this Court on that aspect in the case reported in 1999 GLT(1) 177. Article 2179 of the Code deals with the use and administration of common property and states that it would be regulated by Articles 1249 onwards of the Civil Code, and, Article 1270 provides that in the absence of expression stipulation in the matter of administration the rules contained therein would be observed. As already seen, Clause 4 of Article 1270, inter alia, provides that none of the co-owners are entitled without consent of others, to do alterations in the immovables, even if they deem it useful. Clause 5 also provides that in the case of conflict of opinions, the business of administration would be transacted by majority irrespective of their shareholding, etc. Once, it is held that the suit property belonged to the parents of the plaintiff and the defendants, and thus a common property belonging to both the parties to the suit, one party cannot be allowed to erect a compound wall or boundary wall on a specious plea that it was part of an administration of a common property, without the consent of others. As already seen every co-owner has a right to enjoy and possess the property which is common and erection of a compound wall would be a wily way to keep out the other co-owners from enjoyment and possession and even administration of the same. Considering the extent of the property, the construction of the boundary wall could also be seen as an attempt to oust the other co-owners from possession and enjoyment of the common property. Construction of a compound wall is certainly an alteration of the immovable property which could not be done by one co-owner without the consent of other co-owners. Viewed thus, the defendants could not have been allowed to proceed with the construction of the compound wall as the property belonged to both the parties. There is no substantial question of law involved in this Second Appeal and therefore the same is hereby dismissed.