1. Dispute over title and transfer of joint property — claim of exclusive ownership via gift and family settlement versus claim of undivided joint ownership. (Para 2 , 3 , 6 , 7 , 8 , 10 )
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2024 Supreme(SC) 768
SUPREME COURT OF INDIA
SUDHANSHU DHULIA, PANKAJ MITHAL, JJ.
Sk. Golam Lalchand – Appellant
Versus
Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes and Others – Respondents
Civil Appeal No. 4177 of 2024
Decided On : 10-09-2024
Important Points
IMPORTANT POINT
Agreement to sell – Co-owner alone is not competent to transfer entire property without getting his share determined and demarcated so as to bind other co-owners.
Agreement to sell – Co-owner alone is not competent to transfer entire property without getting his share determined and demarcated so as to bind other co-owners.
Subject
Property Law - Title and Ownership
Act Referred
Headnote
Transfer of Property Act, 1882 – Section 44 – Specific Relief Act, 1963 – Section 31 – Agreement to sell – Suit seeking possession of property – Suit was decreed disbelieving family settlement and holding that there was no partition of property – Since suit property has many co-owners including plaintiff-respondents, defendant-appellant could not have acquired right, title and interest in whole of suit property solely on the basis of sale deed executed by co-owner – Co-owner alone was not competent to transfer entire property without getting his share determined and demarcated so as to bind other co-owners – Sale deed, if at all, in accordance with Section 44 of Transfer of Property Act, 1882 may be a valid document to the extent of share of co-owner in property and defendant-appellant is free to take remedies to claim appropriate relief either by suit of partition or by suit of compensation and damages against co-owner – Section 31 of Specific Relief Act, 1963 uses word ‘may’ for getting declared instrument as void which is not imperative in every case, more particularly when person is not a party to such an instrument – Defendant-appellant has rightly been restrained by decree of injunction in acting in derogation of propriety rights of co-owners until and unless partition takes place – Judgments and orders of High Court and of First Appellate Court upheld. (Paras 21, 23, 25 and 26)
Facts of the case:
Title Suit No.212/2006 filed by plaintiff-respondent was dismissed by the court of first instance as he failed to prove his possession but in appeal decree was reversed and suit was decreed disbelieving the family settlement and holding that there was no partition of the property. Judgment and order of First Appellate Court was affirmed by High Court in Second Appeal.
Findings of Court:
Suit property which is undivided is left with co-owners to proceed in accordance with law to get their shares determined and demarcated before making a transfer.
Result : Appeal dismissed.
Judgement Key Points
What is the extent of transferability of undivided co-owned property where one co-owner attempts to transfer the entire property without partition?
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Mr. Rauf Rahim, Sr. Adv. Mrs. Ankita Gupta, Adv. Mr. Ali Asghar Rahim, Adv. Mr. Shekhar Kumar, AOR
For the Respondent(s): Mr. Pijush K. Roy, Sr. Adv. Ms. Kakali Roy, Adv. Mr. Rajan K. Chourasia, AOR
For the Appellant(s) : Mr. Rauf Rahim, Sr. Adv. Mrs. Ankita Gupta, Adv. Mr. Ali Asghar Rahim, Adv. Mr. Shekhar Kumar, AOR
For the Respondent(s): Mr. Pijush K. Roy, Sr. Adv. Ms. Kakali Roy, Adv. Mr. Rajan K. Chourasia, AOR
Table of Contents
2. Whether a co-owner could transfer the entire undivided property based on an unproven gift and family settlement versus the property remaining joint and undivided. (Para 7 , 8 , 11 )
3. No evidence produced to prove the gift, relinquishment of rights by sisters, or family settlement; property remained joint and undivided among co-owners. (Para 14 , 15 , 16 , 17 , 18 , 19 )
4. A co-owner cannot transfer the entire undivided property without partition by metes and bounds; transfer is valid only to the extent of the transferor's share. (Para 20 , 21 , 24 , 25 )
5. Appeal dismissed; decree of injunction upheld, restraining the purchaser from acting in derogation of co-owners' rights until partition. (Para 25 , 26 )
6. Can a co-owner sell the entire undivided property?
No, a co-owner is not competent to transfer the entire undivided property without getting their share determined and demarcated. Such a transfer does not bind other co-owners. (Para 20 , 25 )
7. What is the legal status of a sale deed for an entire undivided property executed by one co-owner?
Under Section 44 of the Transfer of Property Act, 1882, such a sale deed may be valid only to the extent of the transferor's share in the property. (Para 21 )
8. Is the formal cancellation of a sale deed mandatory for a person who is not a party to the instrument to seek relief?
No, under Section 31 of the Specific Relief Act, 1963, declaring an instrument void is discretionary, particularly when the person seeking relief was not a party to the instrument. (Para 23 )
JUDGMENT :
PANKAJ MITHAL, J.
1. Heard Shri Rauf Rahim, learned senior counsel for the appellant and Shri Pijush K. Roy, learned senior counsel for the respondent No. 1.
2. The dispute in this Civil Appeal is about the property measuring more or less 6 Cottahs 1 Chittack and 30 sq. ft. along with 17 rooms (about 4395 sq. ft. which comprises of tile sheds/huts) situate at 100/3 Carry Road, Howrah.
3. The plaintiff-respondent Nandu Lal claims that he had acquired rights in the aforesaid property through his father late Salik Ram along with his other brothers and that Brij Mohan, his cousin, the son of his uncle late Sita Ram, had no exclusive right to sell the property in favour of anyone much less to one of the tenants S.K. Golam Lalchand, the defendant-appellant.
4. The Title Suit No. 212/2006 filed by the plaintiff-respondent Nandu Lal was dismissed by the court of first instance as he failed to prove his possession but in appeal the decree was reversed and the suit was decreed disbelieving the family settlement and holding that there was no partition of the property. The judgment and order of the First Appellate Court was affirmed by the High Court in Second Appeal.
5. Aggrieved by the judgment and order of the First Appellate Court and its affirmation by the High Court vide judgment and order dated 06.07.2021, the defendant-appellant has preferred this appeal.
6. The facts in brief are that the suit property was admittedly purchased by the two brothers namely, late Sita Ram and late Salik Ram in 1959 from one Sahdori Dasi and both of them had equal rights in the said property.
7. It is alleged that one of the brothers late Salik Ram gifted his share in the suit property to his brother late Sita Ram who allegedly became the absolute owner of the entire property. The aforesaid late Sita Ram died intestate in 1975 leaving behind his son Brij Mohan and three daughters who appear to have relinquished their rights in the suit property in favour of their brother Brij Mohan. It is also alleged that the suit property under the family settlement was settled in favour of Brij Mohan.
8. On the other hand, plaintiff-respondent Nandu Lal alleges that his father late Salik Ram made no gift of his share in the suit property in favour of late Sita Ram and that there is no family settlement as alleged by the other side. Therefore, Brij Mohan, the son of late Sita Ram, had no right to transfer the whole of the property in favour of one of the tenants, defendant-appellant S.K. Golam Lalchand and the sale deed in this regard dated 19.05.2006 is void.
9. Upon the aforesaid sale of the entire suit property by Brij Mohan to defendant-appellant S.K. Golam Lalchand, the plaintiff-respondent Nandu Lal filed Title Suit No. 212/2006 for declaration and permanent injunction claiming that the defendant-appellant S.K. Golam Lalchand could not have acquired any right, title and interest in the suit property by virtue of any sale deed, if any, executed by Brij Mohan and that he has no right to dispossess other tenants from the suit property and, therefore, he, his men and agents be restrained from taking forcible possession of any tenanted portion and from causing any disturbance in the possession of the plaintiff-respondent Nandu Lal.
10. The plaintiff-respondent Nandu Lal alleged that the suit property was admittedly the joint property of both late Sita Ram and his father late Salik Ram. Late Salik Ram never made any gift of his share in the suit property in favour of late Sita Ram. There was no family settlement settling the suit property in favour of Brij Mohan, son of late Sita Ram. Since the property has not been partitioned, Brij Mohan could not have sold the same in entirety.
11. The suit was contested by the defendant-appellant S.K. Golam Lalchand as well as Brij Mohan on the allegation that late Salik Ram, sometime in 1960, gifted his share in the suit property to late Sita Ram. Thus, late Sita Ram became the absolute owner. Upon his death in 1975, the propert
