A co-owner has the right to alienate his share, and a relief not claimed in the plaint cannot normally be granted.

1. Whether a co-owner is entitled to alienate his undivided share without acknowledging the rights of other co-owners in the sale deed ? This is the substantial question of law propounded in this Second Appeal. According to the appellant, such a document is void, at the least voidable, and is liable to be cancelled under Section 31 of the Specific Relief Act, 1963.

2. Heard the learned counsel for the appellant and perused the records.

3. Facts relevant for resolution of the dispute are as follows:

Plaint schedule property, having an extent of 10 cents, was obtained in kudikidappu right by Kochukunju Pillai Neelakanta Pillai (in short, 'Pillai') as per a purchase certificate issued by the Land Tribunal concerned in accordance with the provisions of the Kerala Land Reforms Act, 1963. Pillai was a Hindu, governed by Hindu Succession Act, 1956. During his life time, his wife expired. In 1978, the acquirer of kudikidappu right died. He is survived by five children. Plaintiff/appellant is one of his sons. Second defendant is the brother of the plaintiff. Appellant contended that after the death of father, his right title and interest in the plaint schedule property devolved on his children. They are holding the property in co-ownership right. While so, without knowledge and consent of the appellant, the sale deed in question, Ext.A1, was executed by Chellamma, mother of the first defendant (sister of the appellant), Sadasivan Nair and Govindan Nair (brothers of the appellant). According to the appellant, the recitals in Ext.A1 sale deed would not reveal that the property was outstanding in co-ownership with the assignors and the appellant. In other words, his co-ownership right was suppressed in the document. It is his contention that Ext.A1 was executed to defeat his interest over the property.

4. Defendants 1 and 2 filed a written statement admitting the fact that the property involved in the assignment is a co-ownership property. It is true that in Ext.A1 deed, the right of the appellant was not mentioned. But at the same time, it is to be mentioned that there is no recital in Ext.A1 negating the right of appellant over the property. According to the stand taken by the contesting defendants, the appellant could have claimed partition, instead of filing a suit for cancellation of the document and injunction. Maintainability of the suit is seriously challenged by the contesting defendants.

5. The trial court decreed the suit finding that there is no legal force for Ext.A1 and it does not bind the plaintiff/appellant. In the first appeal, the lower appellate court set aside the decree passed by the trial court. Interestingly, even without a demand, the lower appellate court generously granted a decree of declaration of the appellant's 1/5th right over the property and a permanent prohibitory injunction. Tenor of the prohibitory injunction is rather strange. The court granted a relief of prohibitory injunction against the defendants from committing "damage or mischief" in the property till partition.

6. Dissatisfied with the decree of the lower appellate court, the appellant has come up in this second appeal.

7. Rudimentary knowledge of the law relating to co-ownership (tenancy-in-common) will show that the suit as framed cannot be legally maintained. Where the aggregate of rights, which form the ownership, is held and enjoyed by one person, then he is the sole owner of the property. In that event, he may enjoy all those rights exclusively or he may assign or part with some of the them. The sole owner can assign a limited right by way of lease, mortgage etc., thereby limiting his ownership over the property. Still, he will have ownership, but subject to the derivative title created. If the assignment is of some interest or share of ownership itself, both the assignor and the assignee become holders of co-ordinate interest in the property and they become co-owners. Another instance wherein a co-ownership is created is the