Case Note & Summary
The dispute concerns a property measuring about 6 cottahs 1 chittack and 30 sq. ft. with 17 rooms at 100/3 Carry Road, Howrah. The property was purchased jointly by two brothers, late Sita Ram and late Salik Ram, in 1959. The plaintiff-respondent Nandu Lal, son of Salik Ram, claimed that his father never gifted his share to Sita Ram, and that there was no family settlement. He alleged that Brij Mohan, son of Sita Ram, had no exclusive right to sell the entire property to the defendant-appellant S.K. Golam Lalchand, a tenant, via a sale deed dated 19.05.2006. Nandu Lal filed Title Suit No.212/2006 seeking declaration and permanent injunction. The trial court dismissed the suit for failure to prove possession, but the first appellate court reversed, disbelieving the family settlement and holding no partition. The High Court affirmed in second appeal. The Supreme Court framed the issue of whether Brij Mohan alone could transfer the entire property. The Court noted that the original sale deed of 1959 was in joint names, and no evidence of gift or family settlement was produced. The property remained undivided joint property. Brij Mohan's sisters had not relinquished their shares. Thus, Brij Mohan could not sell the whole property. The sale deed was valid only to the extent of Brij Mohan's share under Section 44 of the Transfer of Property Act, 1882. The Court rejected the argument that the plaintiff must seek cancellation of the sale deed, as Section 31 of the Specific Relief Act, 1963 is not imperative. The appeal was dismissed, upholding the injunction against the appellant from acting in derogation of co-owners' rights until partition.
Headnote
A) Property Law - Co-ownership - Transfer of Joint Property - Section 44, Transfer of Property Act, 1882 - A co-owner cannot transfer the entire undivided joint property without partition by metes and bounds. The sale deed executed by Brij Mohan in favour of the appellant is valid only to the extent of Brij Mohan's share, and the appellant cannot claim rights over the shares of other co-owners. (Paras 20-21) B) Evidence - Gift and Family Settlement - Burden of Proof - The party alleging a gift or family settlement must prove it by producing the relevant deed or other cogent evidence. In this case, the alleged gift by Salik Ram to Sita Ram and the family settlement in favour of Brij Mohan were not proved, as no gift deed or settlement document was adduced. (Paras 14-16) C) Specific Relief - Declaration of Void Instrument - Section 31, Specific Relief Act, 1963 - The word 'may' in Section 31 indicates that seeking a declaration that an instrument is void is not imperative in every case, especially when the person seeking relief is not a party to the instrument. The plaintiff's failure to seek cancellation of the sale deed does not disentitle him to relief. (Para 23)
Issue of Consideration
Whether Brij Mohan, son of late Sita Ram, alone was competent to transfer the entire suit property by way of sale deed dated 19.05.2006 in favour of defendant-appellant S.K. Golam Lalchand.
Final Decision
The Supreme Court dismissed the appeal, upholding the judgments of the High Court and the First Appellate Court. The Court held that Brij Mohan alone was not competent to transfer the entire undivided joint property. The sale deed is valid only to the extent of Brij Mohan's share under Section 44 of the Transfer of Property Act, 1882. The appellant is restrained from acting in derogation of the rights of other co-owners until partition. No order as to costs.
Law Points
- Co-owner cannot transfer entire joint property without partition
- Section 44 of Transfer of Property Act
- 1882
- Section 31 of Specific Relief Act
- 1963 is not imperative
- Gift and family settlement must be proved by evidence
