A sale-deed executed by one co-owner is valid to the extent of their share and cannot be deemed null without a partition suit to define ownership rights.

JUDGMENT :

Anubha Rawat Choudhary, J.

Heard the learned counsels appearing on behalf of the parties.

2. This second appeal has been filed against the judgment and decree dated 19.02.2004 (decree signed on 28.02.2004) passed in Title Appeal No. 23 of 1995 by learned Addl. District and Sessions Judge, Fast Track Court No. I, Gumla whereby the learned 1^st appellate court reversed the judgment and decree dated 22.02.1995 (decree signed on 06.03.1995) passed by learned Sub-Judge-III, Gumla in Title Suit No. 41 of 1990.

3. This appeal was admitted for final hearing vide order dated 18.05.2006 on the following substantial questions of law:

“(a) Whether the plaintiff has got any locus standi to file the suit?

(b) Whether the suit for declaration of the sale deed dated 29.06.1990 as illegal is maintainable in absence of prayer for partition of the joint estate of common ancestor Gokul Kumhar and recovery of possession from Chandrika Singh?”

4. While addressing the 1^st substantial question of law, the learned counsel for the respondent nos. 1 and 2 has submitted that the original plaintiff was the co-sharer of the suit property and the previous partition with respect to the joint family property was not proved and therefore, it cannot be said that the plaintiff did not have the locus to file the suit.

5. Learned counsel for the appellants does not dispute this fact that the original plaintiff was the co-sharer of the suit property as per the findings recorded by the learned courts and he has fairly submitted that under such circumstances, it cannot be said that the original plaintiff did not have the locus standi to file the suit as a portion of the entire property was sold by the defendant no. 1 – the co-sharer.

6. In view of the aforesaid submissions the original plaintiff claiming to be the co-sharer of the property had the locus standi to file the suit. The 1^st substantial question of law is accordingly answered.

7. With respect to the 2^nd substantial question of law, the learned counsel for the appellants has submitted that the property admittedly belonged to the common ancestor namely, Gokul Kumhar and the subject matter of the suit was challenge to sale-deed dated 29.06.1990 executed by one of the co-sharers of the property. The learned counsel has also submitted that the appellant no. 1 herein is the purchaser of the property and the appellant no. 2 is the wife of appellant no. 1 and was defendant no. 5 in the suit and is also a co-owner of the suit property.

8. The learned counsel further submitted that the defendant no. 1 was also a co-owner of the suit property and in view of section 44 of Transfer of Property Act, the sale by the defendant no. 1 in favour of defendant no. 2 cannot be said to be void ab initio, rather the purchaser of the suit property has a right to seek partition and get share of the vendor earmarked and even the original plaintiff who had challenged the sale-deed dated 29.06.1990 could have claimed partition and if any portion was sold in excess of the share of the vendor of the defendant no. 2, this aspect of the matter also could have been taken care of in the partition suit. He has submitted that the learned 1^st appellate court while reversing the judgment of the learned trial court has declared the sale- deed no. 1817 dated 29.06.1990 as null and void and such finding is contrary to law and in disregard to the provision of section 44 of Transfer of Pr