A vendor must have the right to sell property for a sale deed to be valid; otherwise, it is considered null and void.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

Heard the learned counsels appearing on behalf of the parties.

2. This appeal has been filed by defendant nos. 6 and 7 of the suit against the judgment and decree dated 28.02.2023 (decree signed on 13.03.2023) passed by learned Civil Judge, Senior Division, Chandil in Title Suit No. 13 of 2014 whereby the suit has been decreed and the sale-deed executed by defendant no. 5 (the power of attorney holder of defendant nos. 1 to 4) in favour of the defendant nos. 6 and 7 has been set-aside.

Arguments on behalf of the Appellants

3. Learned counsel for the appellants has submitted that the core issue involved in this case is related to issue no. 4 as framed by the learned trial Court which is as under:

whether the plaintiffs are entitled for a decree declaring that the registered sale deed no. 687 dated 06.03.2012 executed by defendant no. 5 in favour of defendant nos. 6 and 7 is null and void and did not confer any right in favour of the defendants?

4. The learned counsel submits that the aforesaid issue has been decided by the learned trial Court vide paragraph 20 of the impugned judgment. He further submits that the learned trial Court has considered primarily the point as to whether the vendor of the property had the right to sell the property. The court found that Exhibit 20 and 20/1 which was the deposition in Title Suit No. 42 of 1982 was relevant. A reference was made to the deposition of Joyesh M. Thakkar in the said case where he had submitted that the property was purchased from joint family fund by his father who expired in the year 1972 and in the said suit, he also asserted that in the year 1973, there was a partition in the family wherein his uncle Indu Lal G Thakkar had participated and the property in question fell in the share of Indu Lal G Thakkar. A reference was also made to Exhibit- C in Title Suit No. 42 of 1982 which has been marked as exhibit-16 in the present suit. The deposition of the mother of Joyesh M. Thakkar namely Sabita M. Thakkar in the earlier suit was also exhibited in the present suit which was marked as exhibit- 20/1 wherein in she referred to exhibit-C (exhibit-16 in the present suit) as the document of partition.

5. The learned counsel for the appellants has also submitted that primarily on the basis of the deposition in the Title Suit No. 42 of 1982 and the exhibits thereunder, the learned trial Court held that the property involved in the aforesaid sale-deed did not fall in the share of the vendor of the property and consequently held that the vendor had no right to sell the property and it was held to be null and void.

6. The learned counsel has referred to the plaint wherein in paragraph 8 it has been mentioned that after the death of Mani Kant G. Thakkar, there was family partition of joint family properties amongst the 3 brothers of Mani Kant G. Thakkar and the widow, son and daughters of Mani Kant G. Thakkar. He submits that this statement was denied by defendant nos. 1, 2, 5, 6 and 7 in their written statement vide paragraph 22 which is quoted as under:

“22. That the statements made in para 8 and para 9 of the plaint are totally false, incorrect and wrong and hereby denied by the answering defendants as because there was no any such Family Partition with respect to the land of the said Mauza- Kanderbera nor the half portion of the Schedule-A land ever been allotted and given in the share of Indulal G. Thakkar nor he possessed the said land till his death nor the plaintiff came in possession of the land at any point of time after the death of Indulal G. Thakkar.”

7. The learned counsel has thereafter referred to Exhibit-16 which was exhibit-C in the previous suit [Title Suit No. 42 of 1982] and has submitted that by no stretch of imagination the said document can be a document of partition. Admittedly, the same is an un-registered document and on bare perusal of Exhibit 16, it is apparent that it was not signed by sons and daughters of Sabita M. Thakkar and fu