Gajara Vishnu Gosavi vs Prakash Nanasaheb Kamble & Ors on 16 September, 2009
executed by Awadhesh Singh (plaintiff) in favour of
Shyamjhari Devi. In all these sale deeds the plaintiff has admitted
the compromise of Partition Suit No. 38/66 and has stated that on
that basis he got the separate lands out of that he is selling these
lands. No doubt, undivided share of coparcener can be a subject
matter of sale, but possession cannot be handed over to the
vendee unless the property is partitioned by metes and bounds. In
the plaint of this partition suit, the plaintiff has executed the lands
covered in those sale deeds and has not made purchasers as party
Patna High Court FA No.207 of 2012 dt.02-08-2017 10
and in recitals it is mentioned that possession has already been
handed over. Thus, it clearly proves partition. Recitals of these
sale deeds prove partition. The learned counsel has relied upon a
judgment reported in 2009 (4) PLJR Supreme Court page
225 (para 11 to 13) in the matter of Gajara Vishnu
Gosavi....Appellant vs. Prakash Nanasahdev Kamble & Ors.
..Respondents. Here possession has been handed over which is
not possible in undivided share of a coparcener. Here share has
not been transferred rather separate lands with boundary have
been transferred. Mutual transaction between two members is
strong evidence of separation.