Holding

A co‑sharer may transfer only his undivided share; a sale of the whole undivided property without the other co‑sharer's consent is void to the extent of that co‑sharer's share, and the purchaser cannot obtain possession of more than his share until partition.

Summary

The suit was filed by Sitabai seeking partition and possession of four plots left by her father Sukha, claiming a half share as a co‑sharer with her brother Sudam. Sudam had sold one of the plots (Gat No.19) to Ramdas without Sitabai's consent. The trial court awarded shares, the first appellate court declared Sitabai entitled to a half share and voided the sale, and the High Court modified the decree, holding the sale void only to the extent of Sitabai's half share. The Supreme Court held that a co‑sharer can transfer only his undivided share; a sale of the whole undivided property without the other co‑sharer's consent is void to the extent of that co‑sharer's share, and the purchaser cannot claim possession of more than his share until a partition is effected. Consequently, the appellant was directed to hand over possession of Sitabai's half share of the disputed plot, and the appeal was dismissed.

Issues considered

Whether a co‑sharer can sell the entire undivided property without the consent of the other co‑sharer.
Whether the sale deed is void to the extent of the other co‑sharer's share.
Whether the purchaser can claim possession of the whole property pending partition.
Whether equity can favor the purchaser despite the voidness of the sale.

Legislation cited

Transfer of Property Act, 1882

Subjects

PartitionCo‑ownershipUndivided shareSale of co‑parcener's shareTransfer of Property ActPossessionEquityVoid sale

Judgment

'
[2009] 9 S.C.R. 1106
r
A RAMDAS
V.
·slTABAI & ORS.
(Civil Appeal No .. 6508 of 2005)
MAY 29, 2009
B
[DR. MUKUNDAKAM SHARMA AND DR. S.S. ..
~
CHAUHAN, JJ.] J -<

Partition - Suit for partition and possession - Of four plots
•
c - Claiming half share -Defendant Co-sharer selling one plot
, without consent of the plaintiff - Trial Court holding that the
plaintiff was entitled to only ~ share - First appellate court
holding the plaintiff entitled to Y2 share - Declaring the sale
as void, direction to purchaser to hand-over possession of the
D plot to the co-sharers - High Court in sec·ond appeal,
modifying the decree holding that sale to the extent of share
of the plaintiff void - Direction to purchaser to hand-over the
possession of half share to the plaintiff - On appeal, held:
y
-
Plaintiff was entitled to Y2 share in all 4 plots - The co-sharer
E could not have sold the property more than his share, nor
could have delivered possession till the partition of the
property - The Court even under equity cannot give the sold )(
plot to the vendee and adjust the share of the co-sharers from
the remaining three plots as the sold plot was extremely
F valuable - Transfer of property.
Respondent No. 1 filed a- suit seeking decree of
partition against her brother defendant No. 1 in the
property (4 plots) left behind by their father, claiming to
be co-sharer to the extent of half share. It was contended
G that defendant No.1 had sold one plot in its entirety to i
defendant No. 3 (appellant) without ·her consent, and thus
the sale was void and not binding on her. She also
prayed for recovery of possession. Trial court passed a

H 1106
RAMDAS v. SITABAI & ORS. 1107

decree holding that the plaintiff was entitled to Y.. share A
of the suit property and defendant No. 1 was entitled to
=(
L
o/.. share.

In appeal, first appellate court held that the plaintiff
was entitled to half share; that sale by defendant No. 1
8
in favour of defendant-appellant was not binding on her.
Defendant-appellant was directed to hand over the
possession of the purchased· property to the co-sharers .

. Second appeal was filed by appellant. High Court
disposed of the appeal by way of a consent decree C
whereby the decree by first .appellate court was modified
holding that the sale to the appellant was null and void
and not binding on the plaintiff to the extent of half share
in that plot. High Court further directed the appellant to
hand over the possession of the plot to the plaintiff to the D
~ extent of her half share. Hence the present appeal.

Dismissing the appeal, the Court

HELD: 1. Without there being any physical formal
partition of an undivided landed property, a co-sharer E
cannot put a vendee in possession although such a co-
sharer may have a right to transfer his undivided share.
)
[Para 15) [1114-F-G]

M. V. S. Manikayala Rao vs. M. Narasimhaswami and F
Ors. AIR 1966SC 470; Sidheshwar Mukherjee vs.
Bhubneshwar Prasad Narain Singh and Ors. AIR 1953 SC
487, relied on.

2. All the 4 plots of land which are the suit property
were joint property and therefore, the plaintiff and G
defendant No. 1 owned and possessed half undivided
share each in all the 4 properties. The defendant No.1
who is the brother of the plaintiff could not have therefore
sold the piece of land in its entirety in favour of the
H
~
t
,
1108 SUPREME COURT REPORTS [2009] 9 S.C.R. '
'

~
A defendant-appellant, in as much as the aforesaid land was
undivided and the plaintiff and defendant No. 1 were two
co-sharers in the said property. High Court, therefore,
was correct and legally justified in declaring the plaintiff
as the owner and holder of half of the shares in all the
B four properties which are undivided. The defendant No.1
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 parties amicably or through the intervention of the
·~
....I:-
I

c court. (Para 14] [1113-G-H; 1114-A-C]
3. ltis 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-appellant in respect of the entire land was also
D illegal and without proper sanction of law. So long as the
y
property is joint and not-partitioned, the defendant- · ,.._
appellant is not entitled to get possession of the said
land. Even otherwise, the appellant having purchased the·
land from defendant No.1 could be entitled to be declared
E 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. [Para 14] (1114-C-F] V'

F 4. The appellant 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. [Para 19]
[1116-D-E]
G
J...
5. There is no reason to hold in favour of the
appellant even on the ground of equity, as the appellant
himself is responsible for his act in purchasing undivided
share in a part of the suit property without the knowledge
H and consent of the co-sharer. Besides, indisputably and
RAMDAS v. SITABAI & ORS . 1109

..._
as held by the trial court, the land forming part of the sale A
deed is extremely valuable and, therefore, the question
of equity does not arise as the court would be doing
injustice to one having title and ownership if it accepts
the prayer of the appellant. (Para 19] [1116-E-G]
B
Case Law Reference:

....... ..\ AIR 1966 SC 470 Relied on Para 15
<
AIR 1953 SC 487 Relied on Para 16
l

CIVIL APPELLATE JURISDICTION : Civil Appeal No. c
6508 of 2005.

From the Judgment & Order dated 8.4.2004 of the High
Court of Judicature at Bombay, Bench at Nagpur in Second

.. ~
Appeal No. 359 of 2003.

Ashok Srivastava, Satyajit A. Desai, Anangha S. Desai,
Venkateswara Rao Anumolu for the Appellants.
D

Subhash Paliwal, AK. Sanghi for the Respondents.
-· The Judgment of the Court was delivered by
E

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 F
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 G
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 H
1110 SUPREME COURT REPORTS (2009] 9 S.C.R.
f
A he left behind him the following properties :

Village Survey No. Area (H.R)=Acre

Padoli 19 2.56 = = 6.40

B Padoli

Lakhampur

Kosara
46

22

80
5.47 = = 13.50

4.40 = = 11.00

2.43 = = 6.08
>-- .
"'
c 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-
D sharer to the extent of half share in the said suit property for r
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 +.
E 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
F 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. Yz shares in the
suit property including Gat No. 19 and the defendant no. 1-
G Sudam had no right and title to sale the same without the f
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

H
RAMDAS v. SITABAI & ORS. 1111
[DR. MUKUNDAKAM SHARMA, J.]

defendant No.3-Ramdas (the appellant herein). Defendant no. A
" 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. B
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. c
5. On the basis of the pleadings of the parties, 13 issues
:4
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 D

- "f
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 E
share from the consideration received from the defendant no.
3-Ramdas. A decree was passed by the trial court holding that
,. the plaintiff is entitled for X shares of the suit property and that
the defendant No.1 is entitled for% shares in the suit property.
F
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 G
Ji
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 H
1112 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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
B
Bench of the Bombay High Court. In the said sec.and 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 was
modified to the extent that one half share of the property already
c 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 t<=
judgment and decree passed by the ADJ in the following
manner:-
D
"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
E 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
F 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
G 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
H and this Court issued notice in the matter.
RAMDAS v. SITABAI & ORS. 1113
[DR. MUKUNDAKAM SHf.RMA, J.]
~ 11. We have heard the learned counsel appearing for the A
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 B
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. c
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 D
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 E
plots may be adjusted in the remaining three properties.

.,._ 13. We have considered the aforesaid contentions in the
I..
light of the relevant records. All the four properties which
constitute the suit property belonged to Sukha who was the F
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.
G
~
.. 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 H
1114 SUPREME COURT REPQRTS [2009) 9 S.C.R.

)
A the plaintiff-Sitabai could not have therefore sold the entire Gat
No. 19 area admsasuring 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
B 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 t i
being a co-sharer could not have sold by a registered sale
c deed more than his share nor could he have delivered
possession till the said property is partitioned by the parties
amicably or through the intervention o( 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-
D
Ramdas (appellant herein) in respect of the entire land bearing
Gat No. 19 area admeasuring 2.56H of Mouza Padoli was 3lso
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
E 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
F 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
G possession although such a co-sharer may have a right to
transfer his undivided share. Reliance in this regard may be f.
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:
H
RAMDAS v. SITABAI & ORS. 1115
[DR. MUKUNDAKAM SHARMA, J.]
~
"Now, it is well settled that the purchaser of a co-parcener's · A
.... , undivided interest in the joint family property is not entitled
to possession of what he had purchased. His only right is
to sue 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." B

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 tn
Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain
Singh & Ors. [AIR 1953 SC 487), wherein this Court held as
c
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 D
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 ma~e in his
favour (Emphasis added) E
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 F
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 G
..,,, law to the following extent : -

"Whether the learned First Appellate Court has not
committed perversity in holding that registered sale-deed
H

..
1116 SUPREME COURT REPORTS [2009] 9 S.C.R.

)
A 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 )?"
B
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)
"
c 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
D aforesaid property is an admitted position and on that basis 't
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 _
E said property nor the appellant could have claimed possession
in respect of the entire property. The appella~t herein has further
claimed relief on the ground of equity. However, we do not find -<I-
any reason to hold in favour of the appellant even on the ground
of equity as the appellant herein himself is responsible for his -·
F act in purchasing undivided share in a part of the suit property
without the k~owledge 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
G 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 ...-.'
H
RAMDAS v. SITABAI & ORS. 1117
[DR. MUKUNDAKAM SHARMA, J.]

law. The same are affirmed. Accordingly, we issue a direction A
to appellant herein to handover possession of field G&t 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 B
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 C
this appeal is dismissed. with costs ..

K.K.T. Appeal dismissed.