Supreme Court of India
GAJARA VISHNU GOSAVIversusPRAKASH NANASAHED KAMBLE & ORS.
- Citation
- 2009 INSC 1143
- Decided
- 16 September 2009
- Disposal
- Dismissed
Holding
An undivided share of a co‑parcener may be sold, but possession cannot be transferred to the vendee unless the property is partitioned by metes and bounds, either by a court decree or by settlement among the co‑sharers.
Summary
The appellant purchased the western half of a jointly held property from the heir of a co‑parcener, claiming ownership and possession. The respondents argued that the property had never been partitioned, that the heir was not a necessary party, and that the sale deed could not confer possession. The trial court, affirmed by the appellate courts, held that without a partition the appellant's possession was unlawful and dismissed the suit. On appeal, the Supreme Court examined whether an undivided share in joint possession can be transferred with possession. It held that while an undivided share may be sold, the vendee cannot be granted possession until the property is partitioned by metes and bounds, either by court decree or settlement among co‑sharers. Consequently, the appeals were dismissed.
Issues considered
- Can a purchaser of an undivided share in jointly held property obtain possession without a partition?
- Is a sale deed of a co‑parcener's share valid when the property has not been partitioned?
- Does the absence of a necessary party (the original co‑parcener) invalidate the suit?
- Is the purchaser entitled to specific performance or only to a right to seek partition?
Subjects
property lawpartitionjoint ownershipsale of undivided sharepossessionspecific performanceco‑parcenertransfer of property
Judgment
[2009] 14 (ADDL.) S.C.R. 569
,,
. GAJARA VISHNU GOSAVI A
v.
PRAKASH NANASAHED KAMBLE & ORS.
(Civil Appeal No. 1292-1293 of 2002)
SEPTEMBER 16, 2009
B
[DALVEER BHANDARI AND DR. B.S. CHAUHAN, JJ.]
J
TRANSFER OF PROPERTY:
Property in joint and common possession - Partition not C,
effected - A part of the property sold by heir of one or the co-
parceners - Purchaser filing suit for possession - Suit
dismissed - Held: In a given case an undivided share of a
co-parcener can be a subject matter of sale/transfer, but
..... -4 possession cannot be handed over to the vendee unless the D1
property is partitioned by metes and bounds, either by the
decree of a court in a partition suit, or by settlement among
the co-sharers - In the instant case, all the three courts below
have recorded the finding of fact that there had been no
partition of the suit property - Such concurrent finding does Ei
not require interference as there is nothing on record to show
+
that it was perverse, being based on no evidence or contrary
, to the evidence on record.
Kartar Singh vs. Harjinder Singh AIR 1990 SC 854;
1
Ramdas vs. Sitabai & Ors. JT 2009 (8) SC 224; M. V. S. F
Manikayala Rao vs. M. Narasimhaswami & Ors. AIR 1966 SC
470 and Sidheshwar Mukherjee vs. Bhubneshwar Prasad
Narain Singh & Ors. AIR 1953 SC 487, referred to
Case Law Reference: G
AIR 1990 SC 854 referred to para 9
JT 2009 (8) SC 224 referred to para 9
569 H
570 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
A AIR 1966 SC 470 referred to para 9
AIR 1953 SC 487 referred to para 9
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
1292-1293 of 2002.
B
From the Judgment & Order dated 21.3.2000 of the High
Court of Judicature at Bombay in Second Appeal No. 183 of
2000.
WITH
c
C.A. No. 1293 of 2002.
Vijay Kumar, Vishwajit Singh for the Appellant.
The following Order of the Court was delivered 1-- .....
D
ORDER
1. These appeals have been filed against the judgment
and order of the Bombay Hi~h Court dated 21.3.2000 by which
Second Appeal No.183 of 2000 filed by the appellant has been
E
dismissed and judgments and orders of the Trial Court as well
as the First Appellate Court have been affirmed.
•
"'
2. The facts and circumstances giving rise to this case are
that appellant filed Civil Suit No.6/87 seeking declaration that
F she was owner of the western half part of the suit property, i.e.
city Survey no.83 and in actual physical possession thereof; and
further for restraining the defendants/respondents to cause any
obstruction to her possession over the said property and also
for possession of the other part of the property.
G
3. The said relief was claimed on the basis that the entire "'"
CTS no.83 was originally owned by Krishna Kamble and Maruti
Kamble. Both brothers had been living separately and were
using their respective half part in the suit premises. Krishna
Kamble was in possession of eastern half part of the said
H
-·<
GAJARA VISHNU GOSAVI v. PRAKASH NANASAHED 571
.~
KAMBLE & ORS.
"' '
property. Krishna Kamble died leaving only one son Shripati A
who died leaving only heir i.e. daughter Housabai. Maruti had
two sons, namely, Genu and Dadu. Dadu died issueless. Genu
had three sons, namely Ganapati, Nana and Shankar. Ganapati
died issueless. Shri Prakash Nanasaheb Kamble, defendant
no.1 is the son of Nana and defendant no.2 Manik Shankar 8
Kamble is the son of Shankar. AppellanVplaintiffpurchased the
property of Krishna Kamble from legal heir Housabai Sitaram
) Chavan as she became owner of the said property after the
death of her father Shripati. In fact, said Housabai had sold her
share to one Anjirabai Guruling Kamble by registered sale c
deed dated 13.1.1976. After the death of the said purchaser
Anjirabai, her husband Guruling Kamble became the owner of
the said property and from him the plaintiff/appellant had
purchased the same vide registered sale deed dated 4.7.1984.
·- Thus, she claimed the ownership of the property i.e. western
~ D
half part of the suit property. It is further claimed by the appellant/ I
plaintiff that she had spent huge amount and raised construction
of four rooms after taking the permission of the Nagar Parishad.
In absence of the appellant/plaintiff, defendant/respondent nos.3
and 4 occupied the suit property at the instigation of defendant/
respondent nos.1 and 2 and in spite of several requests· the E
possession of the said property was not handed over to her.
Hence, the suit was filed on 4.7.1984 for the aforesaid reliefs.
4. DefendanVrespondent nos.1 and 2 contested the suit
on various grounds, inter alia, that Housabai was a necessary F
party. As she had not been impleaded as defendant/
respondent, the suit could not be entertained for want of
necessary party. The property had never been partitioned. The
sale deed executed by Housabai could not be valid and the
same was liable to be dismissed. 6
5. On the basis of the pleadings, the trial Court framed
various issues, including whether the plaintiff/appellant was in
lawful possession and had valid title over the suit property, and
as to whether the defendants/respondents had encroached
H
...
572 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
~
A upon the said property. The parties led evidence and after
considering the same, the triat Court came to the conclusion
that no partition had ever taken place. Therefore, Housabai
could not claim any specific share in the property. She could
be a co-sharer in common and joint possession. As the partition
B had never been effected, the question of handing over of the
possession either to the present appellant/plaintiff or her
vendee could not arise. Therefore, her possession was merely
a forcible possession and was not valid and the suit was ~
dismissed vide judgment and decree dated 19.12.1991. The
c trial Court observed that at the most on the basis of the sale
deed Anjirabai and thereafter appellant/plaintiff could become
the owner in common alongwith defendants/respondents in
respect of the suit property but as there was no partition, the
appellant/plaintiff could not be in lawful possession.
D I- -·
6. The said findings of fact had been affirmed by the First
Appellate Court in Regular Civil Appeal No.104 of 1992
decided.on 13.8.1999, as well as by the High Court vide
impugned judgment. Hence, this appeal.
E 7. Shri Vijay Kµmar, learned counsel appearing for the
appellant has raised all the issues which had been raised
before the courts below and submitted that as the appellant had •
been a bona fide purchaser for consideration and had been
put in possession by her vendee Anjirabai who had purchased
F the suit property vide registered sale deed from Housabai, the
suit ought to have been decreed and has tried to persuade us
taking through the pleadings as well as the depositions to allow
the appeals.
8. Be that as it may, three courts have recorded the
G concurrent findings of fact that partition had never been given
effect to in· respect of the suit property. Therefore, Housabai
could transfer her share. But the question does arise as to
whether without partition by metes and bounds, she could put
her vendee Anjirabai in possession.
H
GAJARA VISHNU GOSAVI v. PRAKASH NANASAHED 573
KAMBLE & ORS.
9. In Kartar Singh vs. Harjinder Singh, AIR 1990 SC 854, A
this Court held that where the shares are separable and a party
enters into an agreement even for sale of share belonging to
other co-sharer, a suit for specific performance was
maintainable at least for the share of the executor of the
agreement, if not for the share of other co-sharers. It was further : B
observed:
"As regards the difficulty pointed out by the High Court,
namely, that the decree of specific performance cannot be
granted since the property will have to be partitioned, we C
are of the view that this is not a legal difficulty. Whenever 1
a share in the property is sold, the vendee has a right to ·
apply for the partition of the property and get the shc:ire ·
demarcated."
In recent judgment in Ramdas vs. Sitabai & Ors. JT 2009 (8) D
SC 224 to which one of us (Dr. S.S. Chauhan J.) was a party
placing reliance upon two earlier judgments of this Court in .
M. V. S. Manikaya/a Rao vs. M. Narasimhaswami & Ors. AIR '
1966 SC 4 70; and Sidheshwar Mukherjee vs. Bhubneshwar
Prasad Narain Singh & Ors, AIR 1953 SC 487, this Court E
came to the conclusion that a purchaser of a co-parcener's
undivided interest in the joint family property is not entitled to
possession of what he had purchased. He has a right only to
sue for partition of the property and ask for allotment of his
share in the suit property. F
10. There is another aspect of the matter. An agricultural
land belonging to the coparceners/co-sharers may be in their
joint possession. The sale of undivided share by one co-sharer
may be unlawful/illegal as various statutes put an embargo on
fragmentation of holdings below the prescribed extent. G
11. Thus, in view of the above, the law emerges to the
effect that in a given case an undivided share of a co-parcener
can be a subject matter of sale/transfer, but possession cannot
be handed over to the vendee unless the property is partitioned H
-
574 SUPREME .COURT REPORTS [2009] 14 (ADDL.) S.C.R. '
A by metes and bounds, either by the decree of a Court in a • I
j
partition suit, or by settlement among the co-sharers.
12. In the instant case, all the three courts below ha_'{e
recorded the finding of fact that there had been no.partition of
B the suit property. Such concurrent finding does not require
jnterference as there is nothing on record to show that it ,was
. perverse, being based on no evidence or contrary to the
evidence on record.
13. In view of-the above, we do not find any ground to
c interfere with the impugned judgment. Appeals are accordingly
dismissed.
\
R.P. Appeals dimissed. ;,
\ • T
~
r•'
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