Co-owners may alienate their undivided property interests without others' consent unless restricted by valid statutory law, not by executive instructions.

JUDGMENT :

A.C. Behera, J.

This writ petition under Section 226 & 227 of the Constitution of India, 1950 has been filed by the petitioners praying for quashing the Order dated 01.03.2025 (Annexure-1) passed by the Sub- Registrar, Athagarh (Opposite Party No.2) refusing to register the sale deed presented by the petitioners for registration on the ground that, they (petitioners) are trying to alienate their joint and undivided properties from Plot No.381 under Khata No.133 in Mouza-Mahidharpur of Athagarh Tahasil in the district of Cuttack without the consent of their other co-owners indicating specific boundaries of the proposed land to be sold annexing sketch map assigning the reasons that, the petitioners are the co-owners of plot No.381 along with others, for which, transfer of their undivided interest in Plot No.381 without the consent of their other co-owners is not permissible under law.

2. Heard from the learned counsel for the petitioners and the learned ASC for the State.

3. On the aspect of alienation of undivided interest of one co-owner without the consent of other co-owners has already been clarified by this Court in a decision between Damodar Mishra Vs. State of Odisha & Others decided in WP(C) No.4340 of 2025 on dated 03.04.2025 that,

“As per Section 44 of the T.P. Act, 1882, a co- sharer/co-owner has his/her inherent right to alienate his/her share/interest in the Joint and Undivided properties to the extent of his/her share. Therefore, even there will be any sale of specific portion of land in the joint and undivided properties by one co-owner of the same indicating boundaries thereof, still then, the said transfer/sell would be deemed as a transfer of share of the vendor in the said joint and undivided property.

Any executive instruction or circular issued by any authority including Government contrary to the statutory law envisaged under Section 44 of the T.P. Act, 1882 restricting a co-owner/co-sharer to alienate his/her undivided share/interest in the joint and undivided property shall be deemed as non-est. Because, executive instructions and circulars have no applicability where statutory law governs the field.”

4. By applying the propositions of law enunciated in the aforesaid decision between Damodar Mishra Vs. State of Odisha & Others decided in WP(C) No.4340 of 2025 to the impugned order dated 01.03.2025 (Annexure-1) passed by the Sub-Registrar, Athagarh (Opp. Party No.2) refusing to register the deed for sale of the petitioners, it is held that, the said order dated 01.03.2025 (Annexure-1) passed by the Sub-Registrar, Athagarh (Opp. Party No.2) is not in conformity with the law. For which, there is justification under law for making interference with the same through this writ petition filed by the petitioners.

Therefore, the writ petition filed by the petitioners is allowed.

5. The order dated 01.03.2025 (Annexure-1) passed by the Sub- Registrar, Athagarh (Opp. Party No.2) refusing to register the deed for sale of the petitioners for alienation of their undivided interest in plot No.381 is quashed.

6. The Sub-Registrar, Athagarh (Opp. Party No.2) is directed to register the deed for sale of the petitioners according to The Registration Act, 1908 and The Registration Rules thereof, if through such deed, the petitioners transfers their shares in their undivided plot No.381 under Khata No.133 in Mouza-Mahidharpur under Athagarh Tahasil without indicating boundaries thereof and without the consent of their co-owners, if such a deed for sale complying the above criterias is presented by the petitioners along with the certified copy of this Order before the Sub- Registrar, Athagarh (Opp. Party No.2), the Sub-Registrar Athagarh (Opp. Party No.2) shall act upo