IMPORTANT POINT
Important Point : A co-owner can sell property exceeding their share with the implied consent of other co-owners, as established by their conduct and absence of objection.

JUDGMENT :

(M.W. Chandwani, J.)

1. Correctness of the judgment and decree dated 18.01.2008 passed by the Civil Judge, Junior Division, Nagpur in Regular Civil Suit No.1758/2003 and modified by the judgment and decree dated 13.03.2009 by the District Judge, Nagpur in Regular Civil Appeal No.211/2008 is under challenge in this second appeal.

2. Appellant and respondents are real brothers and sisters being born to Namdeorao and Mirabai (since deceased). The suit property was originally owned by deceased Namdeorao and Mirabai jointly. They constructed six rooms on the suit property. Namdeorao died prior to Mirabai. To pay the loan and development charges, Mirabai sold half portion of the terrace above the six rooms for a consideration of Rs.80,000/- to her son respondent no.1 by registered sale-deed dated 15.04.2002 and again she sold remaining half portion of the terrace to respondent no.3 by registered sale-deed dated 16.03.2002. After purchasing the suit property, respondent nos.1 and 3 made construction on the terrace out of their own funds. Mirabai, by will-deed dated 16.03.2002 bequeathed one room each to her sons i.e. appellant and respondent nos.1 to 4 and one room to both her daughters i.e. deceased Manda and respondent no.6 – Lalitha. After the death of Mirabai, the appellant and respondent no.4 – Gyaneshwar started collecting rent from the tenant of the room which was given to respondent no.1. Therefore, respondent no.1 filed a suit bearing Regular Civil Suit No.1758/2003 for partition and separate possession. The appellant and respondent no.4 denied the claim of respondent no.1 and came up with a case that deceased Mirabai did not have an exclusive right to dispose of the rooms by willdeed dated 16.03.2002 as well as to dispose of the terrace by way of sale-deeds. Respondent no.3 supported the claim of respondent no.1. The trial Court decreed the suit and declared that appellant and respondent nos.1 to 4 and 6 as well as deceased Manda are entitled for 1/6th share of the suit property alongwith possession and appointed a Court Commissioner to effect the partition.

3. Feeling aggrieved with the decree of the trial Court, the appellant preferred an appeal before the District Judge. By judgment and decree dated 13.03.2009, District Judge-5, Nagpur though upheld the findings of the trial Court but held that the trial Court has not distributed the share of the parties properly. The District Judge modified the decree by holding that the appellant and respondent nos.1 to 4 and 6 and legal heirs of deceased Manda are entitled for 1/7th share in the suit property i.e. six rooms and accordingly partly allowed the appeal. The appellant was not satisfied with the finding of the trial Court as well as the appellate Court that deceased Mirabai had a right to sell the property to the extent of more than what falls in her share. Therefore, this second appeal came to be filed.

4. The second appeal has been admitted on the following substantial question of law.

“(1) Whether a co-owner has a right to sell more property than which falls to his share with the implied consent of the other co-owners?”

5. Having heard learned counsels for the respective parties and having gone through the record and proceedings of the Courts below as well as the impugned judgment and decree, it transpires that after the death of Namdeorao, co-owner of the suit property Mirabai not only sold the entire terrace to respondent nos.1 and 3 by registered sale-deed but also bequeathed entire six rooms by executing will-deed dated 16.03.2002. Both the Courts below have concurrently held that the mother was competent to sell entire terrace to respondent nos.1 and 3 and also held that will-deed executed by Mirabai has been duly proved. While admitting the appeal, the only question framed is with regard to the authority of Mirabai to sell the terrace to respondent nos.1 to 3 of more area than that owned by her.

6. Thus, the question arising here is that, after the death of co-