A co-owner has the inherent right to alienate undivided shares in joint property, consistent with statutory provisions, even in the face of conflicting executive instructions.

JUDGMENT :

ANANDA CHANDRA BEHERA, J.

1. This writ petition under Articles 226 and 227 of the Constitution of the India, 1950 has been filed by the petitioner praying for quashing the letter No.5554 dated 25.10.2024 of the Collector, Cuttack and to direct the Opposite Parties to execute and register the sale deed of the petitioner concerning the transfer of his shares in Plot No.1932, 1933 and 1934 under Khata No.435/143 and 435/203 in Mouja Cuttack Town under Unit No.14.

2. The case of the petitioner in this writ petition is that, he (petitioner) being an old man, in order to meet his self-medical treatments, he (petitioner) decided to sell his shares in Plot Nos.1932, 1933 and 1934 and gave proposal for sale of the same to one Karunakar Rath for consideration amount of Rs.40,00,000/- (Forty Lakh Rupees only), to which, Karunakar Rath accepted and agreed to purchase.

Accordingly, the petitioner executed the deed for selling his shares in the above three Plots in favour of his vendee Karunakar Rath and applied for slot booking for registration of that sale deed before Sub-registrar, Cuttack (O.P. No.3), but, the slot for registration could not be booked through oral expressions made by the sub-Registrar, Cuttack (O.P. No.3) that, the Plot Nos.1932, 1933 and 1934 are the joint properties of the petitioner (vendor) and his other co-sharers and when, the petitioner is interested only to sell his shares in the said three plots covered in that sale deed, (those have not been partitioned/divided between the petitioner and his co-sharers till yet through any metes and bounds partition), then, due to the restrictions imposed by the Collector, Cuttack in its letter No.5554 dated 25.10.2024, he (petitioner) cannot transfer his shares through sale deed in the Plot Nos.1932, 1933 and 1934 under Khata No.435/143 and 435/203 in Mouja Cuttack Town under Unit No.14 in favour of Karunakar Rath, for which, the deed of sale executed by him (petitioner) in order to transfer his sharers in Plot Nos.1932, 1933 and 1934 cannot be registered before him (O.P. No.3)

For which, without getting any way, the petitioner filed this writ petition against the Opposite Parties including O.P. No.3 praying for quashing the letter No.5554 dated 25.10.2024 of the Collector, Cuttack and to direct the O.P. No.3 to register the sale deed for transferring his shares in Plot Nos.1932, 1933 and 1934 under Khata No.435/143 and 435/203 in Mouja Cuttack Town under Unit No.14 in favour of Karunakar Rath, even though, the said plots are the joint and undivided properties of the petitioner and his co-sharers. Because, the petitioner has his shares in the said plots, for which, he (petitioner) is legally entitled to alienate/transfer his shares in the said plot Nos.1932, 1933 and 1934 in favour of his vendee Karunakar Rath.

3. I have already heard from the learned counsel for the petitioner and learned Standing Counsel for the State on behalf of the Opposite Parties.

4. Section 44 of the Transfer of the Property Act, 1882 does not prohibit any co-owner for alienation of his/her undivided interest in the joint properties.

On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:-

(i) In a case between Dilip Kumar Sahoo Vrs. Smt. Malati Rout & Others reported in 2013 (Supp.1) OLR 410 that, neither Section 4 of the Partition Act nor Section 44 of the Transfer of Property Act prohibits the sale of undivided interest by a co-owner. However, where, the sale is in respect of the dwelling house belonging to undivided family, the purchaser cannot claim separate possession.

(ii) In a case between Ganapath Sahu & Another Vrs. Smt. Bulli Sahu & Others reported