When Can A Co-Owner Maintain An Injunction Suit To Protect His Co-Ownership Right Over Property? Kerala High Court Enumerates

The Kerala High Court has recently laid down the instances when a co-owner can maintain a suit for injunction to protect his co-ownership right over a property. 

Justice A. Badharudeen was adjudicating upon a matter where one co-owner was attempting to construct a building in the co-ownership property during the pendency of the final decree proceedings before a trial court.

The plaintiff in the said suit who was another co-owner of the property had not agreed to such a construction.

The Court found that construction could not be permitted without the knowledge or consent of other co-owners and added that such construction may cause prejudice to the right of enjoyment of the other co-owners as they wish on separation of shares.

Justice Badharudeen was called upon to answer the following two questions:

(i) is there any rigid and unwavering tenet that no injunction can be granted against one co-owner at the instance of other co-owner?

(ii) if it is a flexible principle, to what extent injunction can be granted against one co-owner at the instance of the other co-owner?

After perusing the relevant judgments on the issue, the Judge held that there is no rigid or an unwavarable tenet that no injunction can be granted against one co-owner at the instance of other co-owner.

Pursuant thereto, he issued the following guidelines.

Instances when a co-owner can maintain an injunction suit to protect his co-ownership right:

1. If one co-owner prevents the other from enjoying the common property, the affected co-owner can certainly approach the Court for appropriate relief including prohibitory injunction to protect his co-ownership right so that one co-owner can enjoy his right over the common property without hindrance to the other co-owner/co-owners. 
2. one co-owner out of the many has no right to build on which is joint property, without the consent of others, notwithstanding that, the erection of such building may cause no direct loss to other joint owners or its stature can be termed as `improvement', since on separation of sharers, one co-owner's right to enjoy his share shall not be hassled by such building. 
3. A co-owner cannot be permitted to erect building in the common property without the consent of other co-owners, since one co-owner on separation of his share has every right to enjoy his property even as barren land for having gentle breeze or otherwise without a building therein.
4. One co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property, absolutely and simply, because he is a co-owner.
5. Before an injunction can be issued, the plaintiff has to establish that he would sustain, by the act he complains, which materially would affect his position as co-owner or his enjoyment or accustomed user of the joint property would be inconvenienced or interfered with by the said act of another co-owner.
6. What relief to be granted in such Suits shall be decided by the court having jurisdiction guided by consideration of justice, equity and good conscience, after appraisal of the attending circumstances, the nature of injury caused and on weighing the balance of convenience. 
7. If one co-owner feels or apprehends obstruction in the matter of enjoyment of his co-ownership right, he can very well institute a Suit restraining the other co-owner from obstructing the enjoyment within the sphere of co-ownership right, without disturbing the similar right of the other co-owner/co-owners, even without opting for partition.

Accordingly, the plea was disposed of.

Advocates Arun Babu and B. Dipu Sach Deev appeared for the petitioner while the respodents were represented by Advocate B. Mohanlal. 

Case Title: J. Rajendran Pillai v. B. Bhasi & Ors.

Citation: 2022 LiveLaw (Ker) 86

Click Here To Read/Download The Order