Co-owners in a property can only transfer their share; deeds beyond their share are void. Courts can declare instrument void without explicit challenge when addressing concurrent rights.

JUDGMENT AND ORDER :

DEVASHIS BARUAH, J.

Heard Mr. S.P. Roy, the learned counsel appearing on behalf of the appellants. Mr. D. Mozumdar, the learned Senior Counsel assisted by Mr. S. Biswas, the learned counsel appears on behalf of the respondents.

2. This is an appeal filed challenging the judgment and decree dated 16.11.2010 passed in Title Appeal No. 7/2008 by the learned Court of the Civil Judge, Darrang, Mangaldai (hereinafter referred to as, “the learned First Appellate Court”) whereby the appeal was dismissed thereby affirming the judgment and decree dated 30.06.2008 passed by the learned Munsiff No. 1, Mangaldai (hereinafter referred to as, “the learned Trial Court”) in Title Suit No. 03/2007.

3. It is seen from the records that the learned Coordinate Bench of this Court vide an order dated 01.07.2011 formulated 2 (two) substantial questions of law which are reproduced herein under:

“1. Whether a donee and the subsequent transferees acquire good title to the share of property of the donor/co-owner making a gift deed which is partly adjudged void to the extent of the share of the other co-owners?

2. Whether the Courts below are right in decreeing the suit without a decree for partition?”

4. The question arises in the instant proceedings, as to whether, the 2 (two) substantial questions of law so formulated vide the order dated 01.07.2011 are substantial questions of law involved in the present appeal.

5. For ascertaining the same, this Court finds it relevant to take note of the brief facts which led to the filing of the present appeal. For the sake of convenience, this Court would refer to the parties in the same status as they were before the learned Trial Court.

6. A perusal of the plaint reveals that the 4 (four) plaintiffs, along with the defendant No. 2 were the successor-in-interest of one Umesh Das (since deceased). The defendant No. 1 as well as the proforma defendant Nos. 2, 3, 4, 5, 6 and 7 were the successor-in-interest of one Kamal Das (since deceased). It is an admitted fact, as would be seen from the pleadings of both the parties, that a plot of land admeasuring 4 Kathas which is described in the Schedule to the plaint and identified by a rough sketch, belonged to Late Umesh Das and Late Kamal Kanta Das. On 28.03.1985, the defendant No. 1 along with the defendant No. 2 sold out 2 Kathas of land vide a registered deed of sale in favour of the defendant No. 4. It was alleged that the said sale deed dated 28.03.1985 was executed secretly behind the back of the plaintiffs and further, that the plaintiffs were in possession of the part of the land which belonged to Late Umesh Das. It is further mentioned in the plaint that the defendant No. 1 while transferring the said land vide the registered deed of sale dated 28.03.1985 mentioned therein that he got his right from his father on the basis of a registered deed of gift.

7. It is further seen from the averments made in the plaint that on 10.01.1989 the defendant No. 4 sold 1 Katha 16 Lechas of land covered by Dag No. 279 (O)/280(N) to the defendant No. 3 for a sale consideration of Rs. 20,000/- and it has been also averred in the plaint that the same was also done secretly and behind the back of the plaintif