Ramdas vs Sitabai & Ors

Ramdas ....Appellant

Versus

Sitabai & Ors. ....Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal arises out of a Judgment and Order passed by the High

Court of Bombay, Nagpur Bench while disposing of a second appeal

filed by the appellant herein (Mr. Ramdas) who has been arrayed as

defendant No.3 in the original suit. The said suit was filed by the

plaintiff -Sitabai (respondent No.1 herein) seeking for a decree of

partition and for delivery of possession of her share in the suit

property. It was alleged in the plaint that the deceased Sukha had a

son, namely Sudam who was impleaded as defendant No.1 in the suit

and a daughter (plaintiff-Sitabai). The plaintiff-Sitabai, therefore, is

the sister of the defendant No.1-Sudam.

2. Sukha died on 07.12.1977 and at the time of his death he left behind

him the following properties :

1

Village Survey No. Area (H.R)=Acre Padoli 19 2.56 = = 6.40 Padoli 46 5.47 = = 13.50 Lakhampur 22 4.40 = = 11.00 Kosara 80 2.43 = = 6.08 Total 14.86 = = 37.15

The aforesaid properties which are four in number constitute the

suit property.

3. In the said suit the plaintiff-Sitabai claimed to be a co-sharer to the

extent of half share in the said suit property for the reason that the

plaintiff-Sitabai and the defendant No.1-Sudam are the only legal

heirs of deceased Sukha. It was contended by the plaintiff-Sitabai that

the defendant no. 1-Sudam had sold Gat No. 19 area admeasuring

2.56HR of Mouza Padoli to defendant no. 3-Ramdas for a

consideration of Rs. Rs.75,000/-. It was further stated in the plaint that

the defendant No.1-Sudam had also executed a sale deed in favour of

the defendant No.3-Ramdas on 19.03.1980 without the consent of the

plaintiff-Sitabai. It was contended that the said sale deed is void and

not binding on the plaintiff-Sitabai since the said transaction was done

without the knowledge and consent of the plaintiff-Sitabai. It was

further contended that the plaintiff-Sitabai is entitled for equal share

i.e. = shares in the suit property including Gat No. 19 and the

defendant no. 1-Sudam had no right and title to sale the same without

2 the consent of the plaintiff-Sitabai. Therefore, the plaintiff-Sitabai

prayed for a decree for partition and for recovery of possession.

4. The suit was contested by the defendants including defendant No.3-

Ramdas (the appellant herein). Defendant no. 3-Ramdas in his written

statement admitted that he had purchased the aforesaid land from

defendant no. 1-Sudam by registered sale deed dated 19.03.1980.

However, it was stated that the defendant No. 1-Ramdas had informed

him that he (i.e. defendant No. 1) is the exclusive owner of the

aforesaid land. Defendant No. 3-Ramdas further stated that he had

purchased the aforesaid land for valuable consideration and the

plaintiff-Sitabai was aware of this transaction. He also stated that the

aforesaid was a self-acquired property of the defendant No.1 and

therefore the same was not open for partition.

5. On the basis of the pleadings of the parties, 13 issues were framed and

all the parties led their evidence. The trial court recorded the evidence

and heard the parties. The trial court after going through the evidence

on record held that the aforesaid four properties were the self-acquired

properties of Sukha. The trial court also found that it is an admitted

fact that price of Gat No.19 is very high. Consequently, it was

ordered that the share of the plaintiff could very well be adjusted from

the land bearing Gat No.46 of Mauza Padoli and in case if her share is

not satisfied then the plaintiff can very well settle her share from the 3 consideration received from the defendant no. 3-Ramdas. A decree

was passed by the trial court holding that the plaintiff is entitled for <

shares of the suit property and that the defendant No.1 is entitled for >

shares in the suit property.

6. Aggrieved by the said decision of the trial court, the plaintiff

(respondent no. 1 herein) filed an appeal before the Court of

Additional District Judge.

7. The Additional District Judge heard the appeal and by judgment and

order set aside the judgment of the trial court and declared that the

plaintiff is entitled to half share in the suit property consisting of 4

plots as mentioned hereinbefore. It was further held that the sale deed

executed by the defendant No.1-Sudam in favour of the defendant

No.3-Ramdas is not binding on the plaintiff-Sitabai. The defendant

No.3-Ramdas was further directed to hand over the possession of the

land bearing Gat No. 19 area admeasuring 2.56H of Mouza Padoli

purchased by him to the legal heirs of the defendant No.2.

8. Being aggrieved by the aforesaid decision of the first appellate court,,

a second appeal was filed in the Nagpur Bench of the Bombay High

Court. In the said second appeal, after hearing the counsel appearing

for the respective parties the High Court disposed of the appeal by

way of a consent decree wherein the judgment and decree of the ADJ

4 was modified to the extent that one half share of the property already

sold by defendant No. 1-Sudam to defendant No. 3 and the one half

share of the plaintiff-Sitabai could be left intact. In terms of the

aforesaid consent decree, the High Court modified the judgment and

decree passed by the ADJ in the following manner :-

"It is hereby declared that the Sale-Deed executed by deceased Defendant No.1 Sukha in favour of Defendant No.3 Ramdas in Null and void and not binding on plaintiff to the extent of her one-half share in Gat No.19, and it shall be valid and binding upon present Respondent Nos. 2 and 3, in so far as one-half share of Sukha sold on 19th March, 1980 by him to the present Appellant."

9. In terms of the aforesaid judgment and order of the High Court, a

direction was issued to the defendant No.3-Ramdas to hand over

possession of the property bearing Gat No. 19 area admeasuring

2.56H of Mouza Padoli to plaintiff-Sitabai to the extent of her one half

share thereof. The High Court also observed that the plaintiff-Sitabai

is at liberty to initiate appropriate proceedings for delivery of

possession. With the aforesaid modification the second appeal was

partly allowed.

10.The defendant No.3-Ramdas (appellant herein) still being aggrieved

by the aforesaid judgment and decree passed by the High Court filed

the present appeal which was admitted and this Court issued notice in

the matter.

5

11.We have heard the learned counsel appearing for the parties who have

taken us through the records of the case in support of their rival

submissions. Contentions of the counsel for the appellant was that the

defendant no. 1-Sudam had sold Gat No. 19 area admeasuring 2.56H

of Mouza Padoli to him (appellant herein) for a consideration of Rs.

Rs.75,000/-. It was contended that the aforesaid property belonged to

defendant No.1-Sudam exclusively and the said property was sold to

them (appellant herein) by a registered sale deed dated 19.3.1980. So,

the plaintiff-Sitabai is not entitled for any relief with respect to the

aforesaid property.

12.It was also submitted that it being an admitted position that the

appellant herein had purchased the entire land bearing Gat No. 19 area

admeasuring 2.56H of Mouza Padoli, the plaintiff-Sitabai is not

entitled to any decree for partition in respect of the said property.

Another submission for the counsel appearing the appellants was that

at least on the ground of equities the appellant is entitled to be

declared as owner as being in possession of the property in question

i.e. Gat No. 19 area admeasuring 2.56H of Mouza Padoli and the

plaintiff-Sitabai's claim with regard to the half share in all four plots

may be adjusted in the remaining three properties.

6

13.We have considered the aforesaid contentions in the light of the

relevant records. All the four properties which constitute the suit

property belonged to Sukha who was the absolute owner of the said

four property. After the death of Sukha, all the aforesaid four property

was jointly owned and possessed by the plaintiff-Sitabai and

defendant No.1-Sudam as the natural heirs and legal representatives of

the deceased Sukha.

14.It could not also be disputed that all the aforesaid 4 plots of land

which are the suit property were joint property and therefore, the

plaintiff-Sitabai and defendant No. 1-Sudam owned and possessed

half undivided share each in all the 4 properties. The defendant No.1-

Sudam who is the brother of the plaintiff-Sitabai could not have

therefore sold the entire Gat No. 19 area admeasuring 2.56H of Mouza

Padoli in favour of the defendant No. 3-Ramdas (appellant herein) in

as much as the aforesaid land was undivided and the plaintiff-Sitabai

and defendant No. 1-Sudam were two co-sharers in the said property.

In that view of the matter, the High Court was correct and legally

justified in declaring the plaintiff-Sitabai as the owner and holder of

half of the shares in all the four aforesaid properties which are

undivided. The defendant No.1-Sudam being a co-sharer could not

have sold by a registered sale deed more than his share nor could he

have delivered possession till the said property is partitioned by the

7 parties amicably or through the intervention of the Court according to

their share. It is settled law under the Transfer of Property Act, that a

purchaser cannot have a better title than what his vender had. The

possession which is claimed by the defendant No. 3-Ramdas

(appellant herein) in respect of the entire land bearing Gat No. 19 area

admeasuring 2.56H of Mouza Padoli was also illegal and without

proper sanction of law. So long as the property is joint and not-

partitioned, the defendant no. 3-Ramdas (appellant herein) is not

entitled to get possession of the said land. Even otherwise, the

appellant herein having purchased the land from defendant No.1-

Sudam could be entitled to be declared at the most to the extent of half

share of the said piece of land having stepped into the shoes of his

vendor and could not have asked for and claimed ownership and

possession over the entire land of Gat No. 19 admeasuring 2.56 H.R.

15. Without there being any physical formal partition of an undivided

landed property, a co-sharer cannot put a vendee in possession although

such a co-sharer may have a right to transfer his undivided share.

Reliance in this regard may be placed to a decision of this Court in

M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966

SC 470], wherein this Court stated as follows:

"Now, it is well settled that the purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue 8 for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co- parcener whose share he had purchased."

16. It may be mentioned herein that the aforesaid findings and the

conclusions were recorded by the Supreme Court by placing reliance

upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs.

Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487],

wherein this Court held as under:-

"All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour (Emphasis added)

17. In view of the aforesaid position there could be no dispute with

regard to the fact that an undivided share of co-sharer may be a subject

matter of sale, but possession cannot be handed over to the vendee unless

the property is partitioned by metes and bounds amicably and through

mutual settlement or by a decree of the Court.

18. Our attention was also drawn to the grounds taken by the appellant

in his memorandum of appeal before the High Court wherein the

appellant himself got framed a question of law to the following extent : -

9

"Whether the learned First Appellate Court has not committed perversity in holding that registered sale- deed dtd.19-3-1980 (Ex.248) executed without obtaining the permission of Smt. Sitabai, present respondent no.1 (original plaintiff) and thus null and void in its' entirety and not binding on her at least to the extent of the share of executant (Deceased Deft. No.1)?"

19. Therefore, what the appellant has claimed is only half share of the

said property. The said issue has been considered at length by the High

Court in its impugned judgment. The High Court has recorded the

statement made by the counsel appearing for the defendant No.3-

Ramdass (appellant herein) that the action of the Additional District

Judge in declaring that the said sale deed as null and void was not proper

to the extent of the shares of plaintiff- Sitabai in the Gat No. 19 area

admeasuring 2.56H of Mouza Padoli. Therefore, the fact that the

plaintiff-Sitabai was entitled to her half share in the aforesaid property is

an admitted position and on that basis the consent decree was passed.

Even otherwise, we are of the considered opinion that the appellant herein

having purchased only undivided share in the aforesaid property could

not have purchased, owned and claimed for more than half share in the

said property nor the appellant could have claimed possession in respect

of the entire property. The appellant herein has further claimed relief on

the ground of equity. However, we do not find any reason to hold in

favour of the appellant even on the ground of equity as the appellant

herein himself is responsible for his act in purchasing undivided share in

10 a part of the suit property without the knowledge and consent of the co-

sharer. Besides, indisputably and as held by the Trial Court, the land in

Gat No. 19 is extremely valuable and, therefore, the question of equity

does not arise as we would be doing injustice to one having title and

ownership if we accept the prayer of the appellant.

20. Consequently, we find no reason to interfere with the judgment and

order passed by the High Court and therefore we are of the considered

view that the decrees passed by the first appellate court and the High

Court are in accordance with law. The same are affirmed. Accordingly,

we issue a direction to appellant herein to handover possession of field

Gat No. 19 area admeasuring 2.56H of Mouza Padoli, Tahsil & Distt.,

Chandrapur to the plaintiff-Sitabai within a period of three months from

today failing which the plaintiff-Sitabai would be entitled to initiate

appropriate proceedings for execution of the decree in which case

possession of the half portion of the aforesaid property shall be made and

given in favour of the plaintiff-Sitabai.

21. In terms of the aforesaid observations and directions this appeal is

dismissed with costs.

.....................................J. [Dr. Mukundakam Sharma]

.....................................J. 11 [Dr. B.S. Chauhan]

New Delhi, May 29, 2009

12