Rameshbhai Ramjibhai Sorathiya vs Dilipbhai Kalyanji Patel on 1 April, 2019

[Cites 12, Cited by 0]

Gujarat High Court

Rameshbhai Ramjibhai Sorathiya vs Dilipbhai Kalyanji Patel on 1 April, 2019

Equivalent citations: AIR 2019 GUJARAT 194, AIRONLINE 2019 GUJ 139

Bench: J.B.Pardiwala

       C/FA/538/2015                                         CAV JUDGMENT



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 538 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================

1    Whether Reporters of Local Papers may be allowed to              YES
     see the judgment ?

2    To be referred to the Reporter or not ?                          YES

3    Whether their Lordships wish to see the fair copy of the          NO
     judgment ?

4    Whether this case involves a substantial question of law          NO
     as to the interpretation of the Constitution of India or any
     order made thereunder ?

5    Circulate this judgment in the subordinate judiciary.

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            RAMESHBHAI RAMJIBHAI SORATHIYA & 1 other(s)
                             Versus
               DILIPBHAI KALYANJI PATEL & 4 other(s)
==========================================================
Appearance:
MR MEHUL SURESH SHAH, SENIOR ADVOCATE WITH MR DIGANT M
POPAT(5385) for the Appellant(s) No. 1,2
MR DAKSHESH MEHTA(2430) for the Defendant(s) No. 1
MR DIPEN K DAVE(3296) for the Defendant(s) No. 2,3,4,5
MR. RUSHANG D MEHTA(6989) for the Defendant(s) No. 1
==========================================================

 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                             Date : 01/04/2019
                              CAV JUDGMENT

1. This First Appeal under Section96 of the Code of Civil Procedure, 1908 [for short 'The C.P.C.'] is at the instance of the original defendants nos.5 and 6 and is directed against the judgment and decree dated Page 1 of 19 C/FA/538/2015 CAV JUDGMENT 26/02/2015 passed by the Additional Senior Civil Judge, Bardoli in the Special Civil Suit No.1 of 2011.

2. The facts giving rise to this First Appeal may be summarized as under: 2.1 The respondent no.1 - original plaintiff instituted the Special Civil Suit No.1 of 2011 in the Court of the Additional Senior Civil Judge, Bardoli and prayed for the following reliefs:

1. As the registered sale deed No.2560 executed on 15/11/2010 by the respondents nos.1 to 4 in favour of respondents nos.5 - 6 is without my consent though I am a member of the joint family and as the sale deed does not bear my signature, it is void ab initio. Therefore, declare that as I - the plaintiff possess and occupy the said property and as the possession of this property has not been handed over to respondents nos.5 - 6, this sale deed is null and void.

2. Pass decree declaring the saledeed dated 15/11/2010 void as it is unlawful and without consideration and not enforceable.

3. Pass permanent injunction order against the respondents that they shall not cause any damage or harm to the sugarcane crop, farm house, agricultural equipments, tractor, trailer etc and trees and greenery and shall not cause any hindrance or obstacle in my possession and shall not alienate my possession without following due legal procedure.

4. Pass permanent injunction order against the respondents that they shall not carry out or enter into any transactions of sale, gift, lease or any other kind with respect to this property.

5. Pass permanent injunction order against the respondents that they shall not forcibly drive me - the plaintiff out from the suit property without following due legal procedure.

6. Declare that the sale deed, executed by respondent no. 1 to 4 with respect to the undivided property without demarcation of share on actual spot and without obtaining permission of block division of the suit property, is unlawful and it is not binding to me - the plaintiff.

Page 2 of 19 C/FA/538/2015 CAV JUDGMENT

7. Declare that till the suit property is divided and demarcation of boundary is done, the respondent no. 5 and 6 are not entitled to get possession from me - the plaintiff.

8. Order the respondents to pay the cost of this suit.

2.2 In the very same suit filed by the respondent no.1, the appellants herein and the other defendants preferred a counter claim. The counter claim and the reliefs prayed in the counter claim reads thus:

Counter claim of Respondent No. 1 to 6 in this case is as follows.

Counter claim of the Respondents against the Plaintiff in this suit is as follows. This counter claim is separate and in addition to the contentions and prayers raised in the reply of the Respondent and it may be considered to be in addition to the reply filed in this suit. Counter claim on behalf of Respondent Nos. 1 to 6 is as follows.

(1) A suit has been filed by the Plaintiff in connection with the land situated at Moje Village Mota, Taluka Bardoli, bearing Account No. 811, Block No. 68, Survey No. 42, 43, 45, admeasuring Hectare 6--73 Aare 81 Sq.mt, Aakar Rs. 69.60 and we the Respondents have filed a reply for the same. The said disputed land bearing Block No. 68, which is a very fertile and cultivable land from the very beginning, is our ancestral property. We Respondent Nos. 1 to 4 are also the joint owners of the said land and we the Respondents and Plaintiff are the cosharers of the said land. The said land has not been partitioned. We the Respondents are entitled to receive total 80% share of the said disputed land.

(2) Father of the Plaintiff and Respondent was farming and cultivating the said disputed land till he died in the year 1997 and thereafter, the said land was given for cultivation to our relative of Kharvasa and he cultivated the said land for about three to four years. Thereafter, as financial condition of Dilipbhai was not good and he was facing difficulty in maintaining his family and as Respondent No. 2 was an old aged widow, the Plaintiff and Respondent No. 2 in this suit had been cultivating the said land having joint ownership of all of us, so that it would be helpful for them. But as per the oral agreement with the Plaintiff, it was decided that the share of the Respondents in the proceeds from the said land may be given to our mother Revaben and accordingly, the Plaintiff in Page 3 of 19 C/FA/538/2015 CAV JUDGMENT this case had given accounts of the yields for one or two years in the beginning. Thereafter, the Plaintiff had been delaying in giving accounts of the yields from the land by showing various excuses.

(3) The Plaintiff in this case has been living in a foreign country for the last two to three years and we all the relatives got together and thought about selling out the said disputed property, wherein the Plaintiff himself was also present. At that time, an oral agreement took place between us the Respondents and the Plaintiff and the Plaintiff had given consent for the same. Therefore, we Respondent Nos. 1 to 4 had decided to sell out our share in the said land to Respondent Nos. 5 and 6, but later on, the Plaintiff changed his mind. Therefore, as the said land was neither divided nor the share thereof was given to us, we Respondent Nos. 1 to 4 had to sell out our share of 80% of the said land to Respondent Nos. 5 and 6 by registered sale deed, as the last option. Thus, we the Respondents have sold out our undivided 80% share of the disputed land to Respondent Nos. 5 and 6 by registered sale deed after taking the consideration for the same. We the Respondents, being the owner of the said property, have sold out our share and such transaction of sale has been done with knowledge and consent of the Plaintiff. We the Respondents have not sold out the share of the Plaintiff and in these circumstances, the sale deed executed by Respondent Nos. 1 to 4 in favour of Respondent Nos. 5 and 6 is true and correct. As we Respondent Nos. 5 and 6 have purchased 80% undivided share of Respondent Nos. 1 to 4 on 15/11/2010 by executing registered sale deed No. 2560, we Respondent Nos. 5 and 6 are also the owner of the said property. The plaintiff of this case, with mala fide intention to not give the share to the respondents, though the respondents are the true owners of the property and with intention to not give the yield out of the property, has filed false criminal complaint against us whenever we demanded our shares. The plaintiff has filed the present false suit as an owner against the respondents in order to usurp the property alone and to not give our share and to get sympathy of the Hon'ble Court. As stated by the plaintiff, the respondent no.1 to 4 have requested to the plaintiff frequently to give them their share in the property but due to rise in the price of the said land, his intention changed and therefore, though we, the respondents are the joint owners of the said land, he has filed this false suit to prevent us from entering and enjoying our share in the said land. Therefore, we the respondents also have to file counter claim for declaration and partition regarding property of Page 4 of 19 C/FA/538/2015 CAV JUDGMENT Block No.68 and for permanent injunction that the plaintiff or any other person, do not transfer or assign and do not prevent us from entering and enjoying our rights in the said property.

(4) Cause of this counter claim: The plaintiff of this case was delaying to give our share in the said property in order to usurp the same on various excuses and was not taking any decision and as a last option, as per the oral understanding took place between the plaintiff and respondents, we sold our 80% share to the respondent no.5 and 6 under the knowledge and consent of the plaintiff and thereafter, the plaintiff changed his mind and preferred the present suit as if he is sole owner of the said land and to deprive us from enjoying our rights in the said land. Therefore, this counter claim is filed within limitation along with reply of the suit.

(5) As the present counter claim is for declaration, permanent injunction and partition, estimate of the suit is considered at Rs.16,17,200/ and accordingly, court fee stamp of Rs.31,390/ is affixed on it and as the subject land is agricultural land, its revenue assessment is estimated as 1392/ for twenty putts considering Rs.69.60 per putt and therefore, court fee stamp of Rs.200/ is affixed on it.

Moreover, as this suit is for declaration and permanent injunction, estimating it of Rs.1000/, court fee stamp of Rs.100/ is affixed on it. Thus, this counter claim is filed affixing total court fee stamp of Rs.31,690/.

(6) This counter claim is based on the documents produced by the respondents.

(7) The respondents have right to file this counter claim as the plaintiff has filed false suit making false representation regarding suit property.

(8) The respondents pray that: (1) To declare that, the suitland situated in block No.68 of mouje: Mota is jointly owned as ancestral property of the respondents Nos.1 to 4 and the Plaintiff, and 80% of the undivided share has been continued in the name of wethe respondents by virtue of cosharer of this property.

(2) We, the respondents Nos.1 to 4 have sold our 80% undivided share of the disputed land to the respondents Nos.5 and 6 through a Registered Sale Deed. Hence, be pleased to declare that, the said sale is legal.

Page 5 of 19 C/FA/538/2015 CAV JUDGMENT

(3) Be pleased to divide the 80% undistributed share of the disputed land situated in Block No.68 of Motani village continued in the name of Respondents Nos.1 to 4 and direct to hand over its possession in favour of Respondents Nos.5 and 6.

(4) Be pleased to declare that, weRespondents Nos. 5 and 6 are the owners of the land in dispute as we have purchased 80% of the undistributed share of the land of Respondents Nos.1 to 4 through Registered Sale Deed on 15/11/2010 and also direct to hand over the possession of said land to Respondent No.5 and 6 after getting it apportioned.

(5) To pass the permanent injunction order that, the Plaintiff of this case shall not transfer, assign or cause to transfer, assign the disputed land of block No.68 and shall not obstruct or cause to obstruct weRespondents entering this land.

(6) Considering the overall factual scenario of the suit, the Hon'ble Court may deem it fit to grant further relief/s; over and above the relief prayed for in the suit.

(7) Order the plaintiff to pay the cost of this suit.

2.3 The Civil Court upon final adjudication of the suit as well as the counter claim, passed the following final order.

:: FINAL ORDER ::

"The Suit of the Plaintiff and Counter Claim of the Defendants is partly allowed.

The sale deed no. 2560, produced vide exhibit no. 186, executed by Defendants nos.1 to 4 in favour of Defendants nos.5 and 6 on 15/11/2010 is held null and void.

As document at exhibit no. 186 is held null and void, Defendants nos.5 and 6 are permanently restrained from causing any kind of obstruction to the Plaintiff and Defendants nos.1 to 4 in the suit property based on the aforesaid document or making any kind of transaction in respect of the said property.

It is held that the suit land bearing block no. 68, situated at mouje Mota, Taluka Bardoli, District Surat, is undivided land of the joint family, and the Plaintiff and Defendants nos.1 to 4 are holding joint Page 6 of 19 C/FA/538/2015 CAV JUDGMENT share therein. Therefore, Plaintiff and Defendants nos.1 to 4 are ordered to maintain status quo in respect of the aforesaid suit land untill aforesaid land is apportioned as per the law.

As Suit and Count Claim have been disposed of as per aforesaid order, the order dated 22/03/2013 passed in connection with the application of the Plaintiff under exhibit no.5 shall be deemed to be disposed of.

Parties to bear the cost of the suit and counter claim."

2.4 Thus, it appears from the materials on record that the dispute between the parties is with respect to an agricultural land bearing Khata No.811, Block No.68, Survey Nos.42, 43 and 45 situated at VillageMota, Taluka Bardoli. The land was originally owned by Kalyanbhai Premabhai Patel. Kalyanbhai Premabhai Patel passed away on 21/10/1997. The respondent no.1 - original plaintiff and the respondents nos.2 to 5 - original defendants nos.1 to 4 are the children of Late Kalyanbhai Premabhai Patel. It is the case of the original plaintiff that the suit property is an undivided ancestral property. On demise of Kalyanbhai Premabhai Patel, his children are now the owners of the land by way of succession. It appears that the respondent no.1 - original plaintiff is residing in the United States of America. The original defendants nos.1 to 4 are also residing outside India. The original defendants nos.1 to 4 transferred their undivided share in the suitproperty in favour of the appellants herein by way of a registered saledeed bearing registration no.2560, Exh.186, dated 15/11/2010. The plaintiff instituted the suit against his two brothers and two sisters redressing the grievance that as the suitproperty has not been partitioned in accordance with law and in metes and bounds, the defendants nos.1 to 4 could not have transferred their undivided share in the suitproperty in favour of the appellants herein. It is the case of the plaintiff that without his consent, such a sale deed could not have been executed by the defendants nos.1 to 4 in Page 7 of 19 C/FA/538/2015 CAV JUDGMENT favour of the defendants nos.5 and 6.

2.5 The Civil Court framed the following issues vide Exh.16.

1. Whether the plaintiff proves that the disputed property is the property owned by undivided family in joint name by the plaintiff and the respondents?

2. Whether the plaintiff proves that there is no signature of the plaintiff on sale deed no.2560 executed on 15/11/2010 by the respondents nos.1 to 4 in favour of respondents nos.5 - 6 and as it is not binding to the plaintiff, therefore, this sale deed is ab initio void?

3. Whether the plaintiff proves that he has possession of the disputed lands and the possession of the property has not been handed over to anyone?

4. Whether the plaintiff proves that the respondents are not entitled to get the possession of the property?

5. Whether the plaintiff proves that this suit is not barred by the Limitation Act?

6. Whether the plaintiff is entitled to get relief as prayed in para

- 16?

7. Whether the respondents nos.1 to 4 prove that they have 80% share in the disputed land?

8. Whether the respondents prove that it is required to do demarcation of boundary in disputed property?

9. Whether the respondents nos.5 and 6 prove that they have become owners of the land purchased with the sale deed?

10. Whether the respondents are entitled to get relief as prayed in para - 8 of the counter claim?

11. What order and decree?

2.6 The issue framed by the Civil Court came to be answered as under: Page 8 of 19 C/FA/538/2015 CAV JUDGMENT

1. In the affirmative.

2. In the affirmative.

3. Partly affirmative.

4. Partly affirmative.

5. In the affirmative.

6. Partly affirmative.

7. Partly affirmative.

8. In the affirmative.

9. In the nagative.

10. Partly affirmative.

11. As per final order.

2.7 The Civil Court came to the conclusion that the saledeed executed by the defendants nos.1 to 4 in favour of the appellants herein could be termed as null and void. The Civil Court by placing reliance on Section4 of the Partition Act took the view that in the first instance, the coowners should have filed a suit for partition and should have got their respective share in the suitproperty determined and only thereafter, the respective share could have been transferred in favour of the third party. The Civil Court recorded a finding that the appellants herein - original defendants nos.5 and 6 cannot be termed as bonafide purchasers of the property for value without notice. The Civil Court also thought fit to reject the counter claim, more particularly, the prayer of the appellants herein to partition the property so that the individual share of the defendants nos.1 to 4 and the plaintiff could be determined.

SUBMISSIONS ON BEHALF OF THE APPELLANTS:

3. Mr. Mehul Suresh Shah, the learned senior counsel appearing with Mr. Digant Popat, the learned counsel for the appellants Page 9 of 19 C/FA/538/2015 CAV JUDGMENT vehemently submitted that the Civil Court committed a serious error in holding that the saledeed Exh.186 executed by the defendants nos.1 to 4 of their undivided share in the suitproperty in favour of the appellants herein is a nullity. Mr. Shah submitted that Section4 of the Partition Act has no applicability in the present case. He submitted that Section4 of the Partition Act deals only with dwelling house. Section4 of the Partition Act has nothing to do with an agricultural land.

4. Mr. Shah further submitted that a cosharer has a right to transfer his undivided share in the property. He submitted that all that the appellants did was to purchase the undivided interest of the defendants no.1 to 4 as coparceners in the joint property. In such circumstances, according to Mr. Shah, the saledeed Exh.186 is absolutely valid and could not have been cancelled.

5. Mr. Shah submitted that as the appellants purchased the undivided share of the defendants nos.1 to 4 in the suitproperty, a counter claim was filed by all the defendants to partition the suit property in metes and bounds. Mr. Shah submitted that the Civil Court committed an error in rejecting the counter claim or rather allowing the counter claim in part by holding that the defendants nos.1 to 4 and the original plaintiff should with mutual understanding partition the property. In such circumstances referred to above, Mr. Shah prays that there being merit in this First Appeal, the same be allowed. Mr. Shah prays that the judgment and decree passed by the Civil Court declaring the saledeed Exh.186 as a nullity, be quashed and set aside and the counter claim may be allowed and the reliefs prayed for in the counter claim may be granted.

Page 10 of 19 C/FA/538/2015 CAV JUDGMENT

SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1 - ORIGINAL PLAINTIFF:

6. Mr. Dakshesh Mehta, the learned counsel appearing for the original plaintiff vehemently submitted that no error not to speak of any error of law could be said to have been committed by the Civil Court in passing the impugned judgment and decree.

7. Mr. Mehta submitted that without there being any physical formal partition of an undivided property, a cosharer cannot put a stranger in possession. Mr. Mehta would submit that the appellants herein are absolutely strangers so far as the family of Late Kalyanbhai Premabhai Patel is concerned. Mr. Mehta submitted that the Civil Court committed no error in placing reliance on Section4 of the Partition Act. In such circumstances referred to above, Mr. Mehta prays that there being no merit in this First Appeal, the same may be dismissed.

ANALYSIS:

8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the Civil Court committed any error in passing the impugned judgment and decree.

9. At the outset, I may state that Section4 of the Partition Act has no application in the present case. Section4 of the Partition Act reads thus: Section4. Partition suit by transferee of share in dwelling house.--

(1) Where a share of a dwellinghouse belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any Page 11 of 19 C/FA/538/2015 CAV JUDGMENT member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2) If in any case described in subsection (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub section (2) of the last foregoing section.

10. Section4 talks about the share in a dwelling house. Section4 of the Partition Act is with the object, interalia, of preserving the integrity of the property. Section4 has the manifest object of preserving the status of undivided family qua the dwelling house as well as its integrity by preventing the outsiders from intruding upon the same and provides that where a share of the dwelling house belonging to an undivided family has been transferred to a stranger and he has instituted a suit for carving out the same for being allotted to him against the undivided family, the Court, shall on an application by any member of the family who is a share holder, permit him to buy out the share of the stranger purchaser at a valuation to be made by the Court.

11. On a dissection of Section 4, it is manifest that the following conditions must exist before the right of preemption can be claimed thereunder, viz., (i) there must be a dwelling house in existence belonging to an undivided family; (ii) a share thereof should have been transferred to a person who is not a member of such family, (iii) the transferee should sue for partition, that is to say, claim partitioning of his share. In absence of any of those conditions the provisions of the section are not attracted. Thus, where the dwelling house has been divided by the members of the family according to their shares and separate allotments have been amongst themselves, the right to buy out Page 12 of 19 C/FA/538/2015 CAV JUDGMENT a strangerpurchaser becomes extinguished. As held in the case of Boto Krishna Ghose Vs. Akhoy Kumar Ghose and Others reported in AIR 1950 Cal 111 "undivided family" means a family not divided, who owns a dwelling house, which has not been physically partitioned according to the shares. The essence of the expression is that the house itself should be undivided amongst the members of the family and the emphasis is on the 'undivided character' of the house and it is this attribute of the house, which imparts to the family the character of 'undivided family'. The expression "share of a dwelling house belonging to an undivided family" in Section4, which seems to have been adopted from Section44 of the Transfer of Property Act points to the same conclusion that the dwelling house must not have been divided amongst the members of the family by separate allotment. It is only after separating the shares and assigning specific portions to the coowners that the family becomes divided qua the dwelling house. Thus, when this stage is reached, Section4 ceases to apply. Cases may arise when shares have undergone numerical division resulting in disruption of status, but the members of the family retain common enjoyment and in such cases, it would seem having regard to the object of this piece of legislation indicated above, that the right to buy out a stranger transferee would subsist.

12. In the case on hand, the subject matter is not a dwelling house, but it is an agricultural land.

13. Although without there being any physical formal partition of an undivided landed property, a cosharer cannot put a vendee in possession yet such a cosharer definitely has a right to transfer his undivided share. Reliance in this regard may be placed to a decision of the Supreme Court in M. V. S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966 SC 470], wherein the Court stated Page 13 of 19 C/FA/538/2015 CAV JUDGMENT as follows: "5. ...Now, it is well settled that the purchaser of a coparcener's 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."

14. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon its earlier judgment in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein the Court held as under: "11. ...All that (vendee) purchased at the execution sale, was the undivided interest of coparcener 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 workout 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)

15. In Ramdas Vs. Sitabai And Others reported in (2009) 7 SCC 444, the Supreme Court observed in Paragraph19 as under: "19. In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of cosharer 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."

16. The Civil Court completely failed to keep the aforesaid position of law in mind before deciding the suit. I may also refer to a decision of the Supreme Court in the case of A. Abdul Rashid Khan (Dead) And Others Vs. P .A. K. A. Shahul Hamid And Others reported in (2000) 10 SCC Page 14 of 19 C/FA/538/2015 CAV JUDGMENT 636, wherein the Supreme Court dealt with the Sections10 and 22 of the Specific Relief Act, 1963. I may quote the relevant observations as contained in Paragraph14.

"14. Thus we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property agreement, then, even if other cosharer has not joined at least to the extent of his share, he is bound to execute, the sale deed. However, in the absence of other cosharer there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the Appellants in such property to other such contracting party. In the present case, it is not in dispute that the Appellants have 5/6 share in the property. So, the Plaintiffs suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court which requires no interference."

17. In the case on hand, the original plaintiff is not disputing the share of his two brothers and two sisters. His only objection is that without his consent and without the suitproperty being partitioned, his two brothers and two sisters could not have transferred their individual share in the suitproperty in favour of the appellants. This objection raised by the plaintiff is without any substance and not tenable in law. In such circumstances, I have no hesitation in coming to the conclusion that the Civil Court committed a serious error in declaring the saledeed Exh.186, dated 15/11/2010 as null and void. To put it in other words, the Civil Court committed an error in cancelling the saledeed, Exh.186. Once again at the cost of repetition, I state 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. At the same time, if he has purchased, then he has a right to sue for partition of the property and ask for allotment of his share in the suitproperty. This is exactly what has been prayed for in the counter claim. At this stage, I may refer to and rely upon a decision of the Supreme Court in the case of Gajara Vishnu Gosavi Vs. Prakash Nanasaheb Kamble And Others reported in Page 15 of 19 C/FA/538/2015 CAV JUDGMENT (2009) 10 SCC 654, more particularly, the observation made by the Supreme Court as contained in Paragraph13.

"13. ...Thus, in view of the above, the law emerges to the effect that in a given case an undivided share of a coparcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the cosharers."

18. The Principles of law applicable to the fact of this case, has been very succinctly explained by a Full Bench of the Punjab & Haryana High Court in the case of Bhartu Vs. Ram Sarup reported in 1981 PunLJ 204, wherein, a question of law, which the Full Bench was called upon to answer was as under: "Whether the sale of a specific portion of land described by particular Khasra numbers by a coowner out of the joint Khewat would be a sale of share out of the joint land and preemptible under Section 15(1)(b) of the Punjab Preemption."

19. While answering the aforesaid question of law, the Full Bench observed as under: "...When a cosharer is in possession exclusively of some portion of the joint holding, he is in possession thereof as a cosharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. It is also undisputed that a vendor cannot sell any property with better rights than he himself has. Consequently, when a cosharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession, what he transfers is his right as cosharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all the cosharers. It was on this basis that a Division Bench of the Lahore High Court in Sukhdev v. Parsi plaintiff and others, AIR 1940 Lahore 473, held that a cosharer who is in exclusive possession of any portion of a joint khata can transfer that portion subject to adjustment of the rights of the other cosharers therein at the time of partition and that other cosharer's right will be sufficiently safeguarded if they are Page 16 of 19 C/FA/538/2015 CAV JUDGMENT granted a decree by giving them a declaration that the possession of the transferees in the lands in dispute will be that of cosharers, subject to adjustment at the time of partition. As is wellknown, a declaratory decree is nothing but a judicial recognition of the existing rights and such a decree does not tend to create any rights. The passing of the declaratory decree, therefore, shows beyond doubt that what the vendee gets in the transfer from a cosharer is the right of that cosharer and not exclusive ownership of any portion of joint land. It is also undisputed that the right of preemption is available not only when a cosharer sells the whole of his share but also when he sells a portion thereof. When a coowner describes the land sold out of his share not in terms of a fractional share of the holding but in terms of measurement and khasra numbers even then he sells nothing but his rights as cosharer in the joint holding i.e. a portion of his share therein. The share in the joint holding according to the dictionary meaning also does not mean a fractional share and instead means a definite portion of property owned by a number of persons in common."

".....The rights of a transferee from a coowner are not entirely dependent on judicial decisions but are regulated by section 44 of the Transfer of Property Act which provides that where one or two or more coowners of the immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share or specified portion, exclusively in possession of the transferor. Again, it cannot be disputed that when a cosharer is in exclusive possession of the specified portion of the joint holding, he is in possession thereof as a cosharer and all the other cosharers continue to be in its constructive possession. By the transfer of that land by one coowner, can it be said that other co sharers cease to be cosharers in that land or to be in its constructive possession. The answer obviously would be in the negative because the right of the other cosharers is either to seek a declaration from the Court as held in Sukh Dev's case (supra) that the vendee is in possession only as a cosharer or can initiate proceedings for partition of the joint holding including the land transferred. If the other cosharers continue to be cosharers in the land transferred even though comprised of specific khasra numbers how can it be said that what is sold is something other than the share out of the joint Page 17 of 19 C/FA/538/2015 CAV JUDGMENT holding. That the sale of specific portion of land out of joint holding by one of the coowners is nothing but a sale of a share out of the joint holding, would be further elucidated if we take the example of a sale where a coowner sells the land comprised of a particular khasra number which is not in his possession but is within his share in the joint holding. For example, 'A' who is joint owner of one fourth share in the joint holding measuring 100 bighas sells the land measuring 10 bighas bearing khasra numbers 'X' and 'Y' which are not in possession. On the basis of this sale, the vendee can neither claim himself to be a transferee of the said land nor can he claim its possession from other coowners in possession thereof. The effect in law of such a transfer would be only that the vendee shall be entitled 10 bighas of land out of the share of his vendor at the time of partition or prior thereto a decree for joint possession to the extent of the land purchased by him. Consequently, the effect in law of sale of even of specified portion of joint land is that it is only a sale of portion of share by one of the coowners."

20. The next question, which I need to consider in this First Appeal is with regard to the counter claim. I am of the view that I should remit the counter claim to the Civil Court for fresh consideration. Having taken the view that the saledeed, Exh.186 is absolutely valid, the next step in the process should be to determine the share of the original defendants nos.1 to 4 and the plaintiff and thereafter, pass an appropriate decree of partition in accordance with the provisions of Order 20 Rule 18 of the CPC as the suitproperty is an agricultural land.

21. In my view, appropriate evidence will have to be led before the Civil Court by both the sides and the Civil Court will have to determine the individual share in the suitproperty. I am saying so because there are two married daughters also of Late Kalyanbhai Premabhai Patel. Whether the suitproperty is a self acquired property of Late Kalyanbhai or an ancestral property is one of the questions, which will have to be determined by the civil court. Accordingly, the shares will have to be determined.

Page 18 of 19 C/FA/538/2015 CAV JUDGMENT

22. In the result, this First Appeal succeeds in part. The judgment and decree passed by the Civil Court cancelling the saledeed, Exh.186 is hereby quashed and set aside. It is hereby declared that the saledeed bearing Registration No.2560, Exh.186, dated 15/11/2010 is a valid document. It is hereby further declared that the original defendants nos.1 to 4 had the legal right to transfer their undivided share in the suitproperty in favour of the appellants herein.

23. The judgment and decree so far as the counter claim is concerned, is also hereby quashed and set aside. The counter claim filed by the defendants is hereby remitted to the Civil Court for fresh adjudication. The parties shall lead appropriate evidence and get the share determined in accordance with law. Once the shares are determined, thereafter, appropriate decree of partition shall be passed by the Civil Court in accordance with the provisions of Order 20 Rule 18 of the CPC.

24. As the suit is of the year 2011, the Civil Court is directed to give top priority and see to it that the counter claim filed by the defendants is disposed of within a period of six months from the date of the receipt of this order. The disposal of the counter claim shall be reported to this Court.

(J. B. PARDIWALA, J) aruna Page 19 of 19

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