A co-sharer in a joint property can only sell his or her own share, and a sale of the entire property by one co-sharer without the consent of the others is void.

G.C.Mittal, J.

1. There were three sets of co-sharers in 151 Kanals 12 Marlas of land. In this litigation, we were concerned with the land shown in possession of one set. That set consisted of three brothers, namely, Hem Raj, Jagdish Rai and Banarasi Dass, who were jointly shown in possession of 48 Kanals 15 Marlas of land, out of total holding of 151 Kanals 12 Marlas of land, having equal shares amongst themselves. By a sale deed dated 12th June, 1957, Banarsi Dass sold the entire land consisting of 48 Kanals 15 Marlas in favour of Arjan Singh, Jit Singh, Puran Singh and Ram Singh sons of Mukand Singh for Rs. 5,000/- and gave possession of entire 48 Kanals 15 Marlas of land to them. On 6th May, 1960, Hem Raj and Jagdish Rai filed the present suit for possession of 2/3rd share of 48 Kanals 15 Marlas of land to them. On 6th May, 1960 Hem Raj and Jagdish Rai filed the present suit for possession of 2/3rd share of 48 Kanals 15 Marlas on the plea that only 1/3rd share was owned by Banarsi Dass and, therefore, Arjan Singh and others became owners of 1/3rd share only. The suit was contested by the vendees and Banarsi Dass was proceeded against exparte. The trial Court found that the plaintiffs were owners of 2/3rd share of 48 Kanals 15 Marlas of land or 2/9th share in the total holding of 151 Kanals 12 Marlas of land, but held that on the basis of oral family partition Banarsi Dass was sole owner of the property sold. The trial Court also found that the venees were bona fide purchasers for consideration and therefore, their sale was protected under section 41 of the Transfer of Property Act. The sold land was under mortgage and it was held that the vendees had redeemed mortgage on payment of Rs. 3,200/-. With the aforesaid findings, the suit was dismissed. On plaintiffs appeal, the lower appellate Court came to the conclusion that the plaintiffs were proved to be owners of 2/3rd share of the land in dispute and that no partition was proved. The lower appellate Court had allowed additional evidence in the form of production of two registered mortgage deeds dated 30th July, 1951 and 22nd June, 1956, which showed that the land in dispute was mortgaged by the plaintiffs and Banarsi Dass, wherein it was admitted that they had 1/3rd share each. The lower appellate Court concluded that there was no merit in the plea of oral partition of the year 1953-54 as till 22nd June, 1956, all the three brothers admitted the property in dispute to be owned by them jointly. It also concluded that the vendees were not bona fide purchasers, as the plaintiffs were recorded as owners in the revenue records not only upto the date of sale but even till the filing of the suit. Since the vendees had redeemed the entire mortgage, therefore, a decree for possession was passed on payment of Rs. 2134/-. The vendees have come to this Court in second appeal.

2. After hearing the counsel for the parties I am of the view that it is clearly proved on the record of the case that the plaintiffs are owners of 2/3rd share of 48 Kanals 15 Marlas of land and owner of 2/9th share in 151 Kanals 12 Marlas of land. The two plaintiffs along with their third brother Banarsi Dass were shown in exclusive possession of 49 Kanals 15 Marlas of land, which land was held by them in equal shares and the sale of the entire land by Banarasi Dass had to be treated as if he was selling his 1/3rd share since he had no authority to sell the shares of his two brothers. This result would follow subject to the decision on the point whether the vendees can take protection of section 41 of the Transfer of Property Act as bona fide purchasers. It is not disputed that at the time of sale in the year 1957 as also at the time of filing of the suit in the year 1969, the plaintiffs were duly recorded as owner along with Banarsi Dass. Under the Land Revenue Act if partition of agricultural land takes place even by consent of the parties, it is recognised only when report is made to the Patwari and