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IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.34204 Of 2021

(Through video conferencing mode)

Shree Daitari Datta

&

Petitioner

Mr. R.N.Parija, Advocate

-versus-

State of Odisha and others

&

Opposite parties

Mr. R.K.Tripathy, ASC

CORAM: JUSTICE ARINDAM SINHA

Order No.

ORDER

12.01.2022

01.

1.

Mr. Parija, learned advocate appears on behalf of petitioner. He

submits, his client wants to sell his coparcenary property. The

registering authority cannot refuse as bound by clarification dated 9^th

June, 2017, issued by Board of Revenue, Odisha, Cuttack. The

clarification is at anneucre-3. He relies on paragraphs 5 and 6 of the

clarification. Said paragraphs are reproduced below:-

< 5. The Hon9ble High Court of Orissa in the matter

of Sitamani Rath Versus IGR and Others vide their

judgment dated 19.02.2015 in this connection have

made it clear under paragraph 7 to the extent that the

buyer without consent of his other coparceners cannot

create possession except however he or she has right

to sue for partition. That apart, the Hon9ble Court has

made it amply clear that there is absolutely no

prohibition in sale of a coparcener9s undivided

property and as such there cannot be any obstruction

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in registering such documents by the Registering

Officer.

6.

In view of the above, if the seller or mortgagor

in a sale deed or mortgage document, prefer to

transfer the undivided proportionate share in the

joint-hold property without the consent of the other

coparceners by involving the power under section 44

of the Transfer of Property Act, 1882 without giving

boundaries of transacted share, the document shall be

registered as per the existing provisions of the

Registration Act.=

2.

Mr. Tripathy, learned advocate, Additional Standing Counsel

appears on behalf of State and submits, the clarification was issued

pursuant to judgment mentioned therein, passed in respect of the

coparceners interest in land. This cannot be extended to, inter alia,

homestead since the right under the Partition Act, 1893, may be

involved.

3.

Petitioner will present his document for registration to opposite

party no.3. Said opposite party will ascertain whether the subject matter

of the document is covered by the clarification. If that is so, the

document will be registered. Otherwise there will be issued refusal

memo stating the reasons. Neither Act of 1882 nor Act of 1893 bare

transfer by co-owner.

4.

The writ petition is disposed of.

(Arindam Sinha)

Judge

Prasant