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IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.81 of 1995 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Kashinath Behera …. Appellant -versus- Nabin Behera and another ..... Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. Budhiram Das, Advocate. For Respondents- Mr. Hemant Kumar Mund, Advocate. Ms. Avinanda Mohanty, Advocate. CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :23.08.2024 :: Date of Judgment :04.09.2024 A.C. Behera, J. This second appeal has been preferred against the reversing judgment. 2. The appellant in this second appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.38 of 1988 and respondent No.1 before the First Appellate Court in the First Appeal vide T.A. No.13 of 1990. Page 1 of 20 {{ 2 }} The respondents in this second appeal were the defendants before the Trial Court in the suit vide T.S. No.38 of 1988. Out of the two defendants, the defendant No.2 (Satyabati Behera) was the appellant before the First Appellate Court in the First Appeal vide T.A. No.13 of 1990 and the defendant No.1 (Nabin Behera) was the respondent No.2 before the First Appellate Court in the First Appeal vide T.A. No.13 of 1990. 3. The suit of the plaintiff (appellant in this second appeal) before the
Legal Reasoning
Trial Court vide T.S. No.38 of 1988 against the defendants (respondents in this second appeal) was a suit for permanent injunction in alternative to declare that, the sale deed executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit properties as null, void and not binding upon him (plaintiff). 4. The suit properties are Ac.4.35 decimals under Khata No.67/53 in Mouza Barapadar under Khariar Tahasil in the District of Nuapada containing five plots vide Plot Nos.521, 522, 523, 524 & 525. As per the pleadings of the plaintiff, he (plaintiff) and the defendant No.1 are the co-sharers of the suit properties and they (plaintiff and defendant No.1) are guided and governed by Mitakshara School of Hindu Law. The suit properties were originally belonged to Sadasiva Page 2 of 20 {{ 3 }} Behera. After the death of Sadasiva Behera, the suit properties left by him (Sadasiva Behera) devolved upon his two sons i.e. plaintiff and Gangadhar (father of defendant No.1). Gangadhar died leaving behind the defendant No.1 as his sole successor. So, the share of Gangadhar in the suit properties devolved upon the defendant No.1. The plaintiff and defendant No.1 are the jointly recorded tenants of the suit properties. The suit properties have not been partitioned between them (plaintiff and defendant No.1) till yet through any metes and bounds partition. Due to the affect of drought in the year 1988, the defendant No.1 left the suit village for earning his livelihood in other places and while he left the suit village, he introduced the defendant No.2 for carrying on joint cultivation of the suit properties with the plaintiff on his behalf. But, after few months, the defendant No.2 created disturbances in the joint cultivation of the plaintiff and falsely claimed that, she (defendant No.2) has purchased some portions of the suit properties from the defendant No.1 and also claimed her title on the same. For which, without getting any way, the plaintiff approached the civil Court by filing the suit vide T.S. No.38 of 1988 against the defendants praying for injuncting the defendant No.2 permanently from creating any sort of Page 3 of 20 {{ 4 }} disturbances in his possession over the suit properties, in alternative to declare the sale deed, if any, executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit properties as null, void and the same is not binding upon him (plaintiff). 5. Having been noticed from the Trial Court in the suit vide T.S. No.38 of 1988, the defendants contested the same by filing their written statements separately and independently challenging the suit of the plaintiff. The defendant No.1 in his written statement denied any alienation of the suit properties by him to the defendant No.2 by stating that, he had mortgaged the suit properties to the defendant No.2, for which, the defendant No.2 has no reason to claim her title over the same. As per the pleadings of the defendant No.2 in her written statement, the suit properties were not the ancestral properties of the plaintiff and defendant No.1, but the suit properties were purchased jointly by the plaintiff and defendant No.1. After purchase, there was mutual domestic partition of the suit properties between the plaintiff and defendant No.1 through their family arrangements in the year 1985 and in such partition Ac.2.51 decimals of land out of the entire suit properties i.e. Ac.4.35 decimals had fallen into the share of the defendant No.1 and Page 4 of 20 {{ 5 }} the defendant No.1 has sold the same to her (defendant No.2) on dated 15.07.1987 by executing and registering the sale deed for consideration amount of Rs.12,000/- and delivered possession thereof to her (defendant No.2) and the said sale was made by the defendant No.1 in her favour for his legal necessities. Therefore, she (defendant No.2) is in possession over Ac.2.51 decimals of land out of the suit properties being the exclusive owner thereof. For which, the plaintiff is not entitled for the decree of injunction against her (defendant No.2) and the sale deed executed by the defendant No.1 in her favour in respect of the suit properties on dated 15.07.1987 is valid and proper and the same cannot be declared as null and void and the said sale deed is binding upon the plaintiff. So, the plaintiff is not entitled for any relief in the suit against her (defendant No.2). For which, the suit of the plaintiff is liable to be dismissed against her (defendant No.2) with costs. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 (five) numbers of issues were framed by the Trial Court in the suit vide T.S. No.38 of 1988 and the said issues are:- Page 5 of 20 {{ 6 }} I S S U E S (i) (ii) Whether the suit land originally belonged to one Sadasiv Behera? Whether there was any previous partition of suit land between the plaintiff and defendant No.1? (iii) Whether there is any cause of action to bring the suit? (iv) Whether the suit is undervalued? (v) To what other reliefs, the plaintiff is entitled to? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants in the suit vide T.S. No.38 of 1988, he (plaintiff) examined two numbers of witnesses from his side including him as P.W.1 and relied upon one document vide Ext.1 i.e. certified copy of the R.o.R. of the suit properties. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant No.2 examined 2 (two) witnesses on her behalf including herself as D.W.1 and exhibited series of documents from her side vide Exts.A to A/3. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered issue Nos.1, 2, 3 & 5 in favour of the plaintiff as issue No.4 was not pressed and basing upon the findings and observations made by the Trial Court in issue Nos.1, 2, 3 & 5, the Trial Court decreed the suit of the plaintiff vide T.S. No.38 of 1988 on contest against the defendants without cost as per its judgment and decree dated 28.04.1990 and Page 6 of 20 {{ 7 }} 11.05.1990 respectively and declared the sale deed dated 15.07.1987 vide Ext.A/3 executed by the defendant No.1 in favour of the defendant No.2 in respect of the Ac.2.51 decimals out of the suit properties is not binding upon the plaintiff and the same is declared as null and void and injuncted the defendant No.2 from entering into the suit land and from disturbing in the possession of the plaintiff over the suit properties assigning the reasons that, the suit properties are the coparcenary properties of the plaintiff and defendant No.1 and the said properties were jointly recorded under Khata No.67/53 in the names of the plaintiff and defendant No.1, for which, the alienation of Ac.2.51 decimals out of Ac.4.35 decimals from the suit properties by the defendant No.1 in favour of the defendant No.2 through registered sale deed dated 15.07.1987 (Ext.A/3) without the consent of the defendant No.1 is null and void. Therefore, that sale deed vide Ext.A/3 is not binding upon the plaintiff. As such, the defendant No.2 has no title over the suit properties. For which, she (defendant No.2) is to be injuncted from interfering in the possession of the plaintiff over the suit properties. 9. On being dissatisfied with the aforesaid judgment and decree dated 28.04.1990 and 11.05.1990 respectively passed by the Trial Court in T.S. No.38 of 1988 in favour of the plaintiff and against the defendant No.2, Page 7 of 20 {{ 8 }} she (defendant No.2) challenged the same by preferring the First Appeal vide T.A. No.13 of 1990 being the appellant against the plaintiff and defendant No.1 arraying them as respondents. 10. After hearing from both the sides, the First Appellate Court allowed that First Appeal vide T.A. No.13 of 1990 of the defendant No.2 and set aside the judgment and decree dated 28.04.1990 and 11.05.1990 respectively passed by the Trial Court in T.S. No.38 of 1988 in favour of the plaintiff and dismissed the suit vide T.S. No.38 of 1988 of the plaintiff as per its judgment and decree dated 18.01.1995 and 01.02.1995 respectively passed in T.A. No.13 of 1990 assigning the reasons that, the plaintiff and the father of the defendant No.1 had purchased the suit properties measuring an area of Ac.4.35 decimals. For which, they both had equal shares in the suit properties and the suit properties were neither ancestral nor the coparcenary properties of the plaintiff and defendant No.1 and after purchasing Ac.2.51 decimals from the suit properties through registered sale deed dated 15.07.1987 vide Ext.A/3, she (defendant No.2) has become the co-owner of the said properties and she (defendant No.2) is also in possession over the same. For which, the plaintiff is not entitled for injuncting the defendant No.2 from entering into the suit properties and the sale deed executed by the defendant No.1 Page 8 of 20 {{ 9 }} in favour of the defendant No.2 vide Ext.A/3 in respect of Ac.2.51 decimals of land out of Ac.4.35 decimals cannot be held as invalid and void under law, because there is no bar under law for alienation of the share of the defendant No.1 in the suit properties in favour of the defendant No.2. 11. On being aggrieved with the aforesaid judgment and decree dated 18.01.1995 and 01.02.1995 respectively passed by the First Appellate Court in T.A. No.13 of 1990 in dismissing the suit of the plaintiff vide T.S. No.38 of 1988 passed by the Trial Court after setting aside the judgment and decree of the Trial Court, he (plaintiff) challenged the same by preferring this second appeal being the appellant against the defendants arraying them (defendants) as respondents. 12. This second appeal was admitted on formulation of the following substantial question of law i.e.:- Whether the lower appellate Court committed gross error in holding that Ext.A/3, the sale deed executed by the defendant No.1 in favour of defendant No.2 validly conveyed a title in favour of defendant No.2 and whether such finding was contrary to the law laid down by this Court in Vol-69 (1990) CLT 529 with regard to the competency of a coparcener to alienate his interest in the coparcenery property without legal necessity or with a view to discharge any antecedent debts of the family? 13. I have already heard from the learned counsel for the appellant (plaintiff) and learned counsel for the respondent No.2 (defendant No.2). Page 9 of 20 {{ 10 }} 14. In support of the judgment and decree passed by the First Appellate Court for the dismissal of the suit of the plaintiff, the learned counsel for the respondent No.2 relied upon the ratio of the decisions reported in (1976) AIR (Orissa) 31; Dayalu Naryan Swamy Vrs. Kanika Ramaswamy Dora and others and (1981) AIR (Orissa) 74; Anirudha Padhan Vrs. Chhai Padhan and others. 15. It is the own case of the plaintiff as per his pleadings that, the suit properties originally belonged to his father Sadasiva Behera. When his father Sadasiva Behera died leaving behind him (plaintiff) and his brother Gangadhar (father of defendant No.1), then the suit properties left by him devolved upon them (plaintiff and his brother Gangadhar). As Gangadhar died leaving behind his son i.e. defendant No.1 Nabin Behera as his successor, then the share of Gangadhar in the suit properties devolved upon the defendant No.1. 16. When, it is the own case of the plaintiff that, the suit properties were the properties of his father Sadasiva Behera and when after the death of his father, the suit properties left by him (Sadasiva Behera) devolved upon him (plaintiff) and Gangadhar (father of the defendant No.1) simultaneously, then at this juncture, it will be seen, whether the suit properties, those were devolved upon the plaintiff and his brother Page 10 of 20 {{ 11 }} Gangadhar after the death of their father Sadasiva Behera were their coparcenary properties or not? On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision:- AIR 1997 (SC) 1251—Municipal Council, Mandsaur Vrs. Fakirchand and another—(Para 6)—Hindu Law— Coparcenary property—When brothers become owners of property only on the death of their father, that indicates, property was not coparcenary property, but undivided property of joint owners, who had inherited their father’s interest. When, as per own saying (pleadings) of the plaintiff, the suit properties were his father’s property and after the death of his father, he (plaintiff) and his brother i.e. Gangadhar (father of the defendant No.1) became the owners of the suit properties as the successors of their father, then in view of the principles law enunciated by the Apex Court in the ratio of the aforesaid decision, it is held that, the suit properties were not the coparcenary properties of the plaintiff and the father of the defendant No.1, but the suit properties were the joint and undivided properties of the plaintiff and the father of the defendant No.1, because they inherited the same after the death of their father, as the successors of their father. So, on the basis of the pleadings of the plaintiff, it is held that, the suit properties were not the coparcenary properties of the plaintiff and father of defendant No.1, but, the said properties were the joint and Page 11 of 20 {{ 12 }} undivided properties of the plaintiff and the father of the defendant No.1 and after the death of the father of the defendant No.1, the suit properties became the joint and undivided properties of the plaintiff and defendant No.1. 17. Even if, it will be accepted for a moment, accepting the pleadings of the defendant No.2 that, the suit properties were purchased jointly by the plaintiff and defendant No.1, still then, as per law, the suit properties were not the coparcenary properties of the plaintiff and defendant No.1, but the suit properties were the joint and undivided properties of the plaintiff and defendant No.1. Because, as per Section 45 of the T.P. Act, 1882, when two or more persons purchase the properties jointly through a sale deed without indicating their shares in the purchased properties in the sale deed, then as per law, all the purchasers in the sale deed become the joint owners of the purchase property having their equal share in the same. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decision:- 1989 (I) OLR 94—Indumati Dibya Vrs. Sashimani Dibya and others—(Para 7)—T.P. Act, 1882—Section 45—Joint transfer for consideration—Two persons who jointly purchase property shall be presumed to have equal share in the same. Page 12 of 20 {{ 13 }} Therefore, on both the ways as discussed above as per the pleadings and evidence of the parties, the suit properties were not the coparcenary properties of the plaintiff and defendant No.1, but the suit properties were the joint and undivided properties of the plaintiff and defendant No.1. 18. Section 44 of the T.P. Act, 1882 does not prohibit the transfer of the undivided interest in the properties by a co-owner like the defendant No.1 in favour of the defendant No.2. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision:- AIR 2016 (SC) 4564—Syscon Consultants P. Ltd. Vrs. M/s. Primella Sanitary Prod. P. Ltd. and others—Transfer by one co-owner of undivided interest in property is not prohibited. 19. As per the discussions and observations made above, when it is held that, the plaintiff and defendant No.1 were the joint owners of the suit properties and they were the co-owners of the suit properties and when as per Section 44 of the T.P. Act, 1882, one co-owner is not unauthorized under law to transfer his undivided interest in the suit properties, then at this juncture, it cannot be held that, the sale deed dated 15.07.1987 vide Ext.A/3 executed by the defendant No.1 in favour of the Page 13 of 20 {{ 14 }} defendant No.2 in respect of his undivided interest in the suit properties is invalid/void under law. It is the settled propositions of law that, when there is any transfer by one of the co-owner (co-sharer) in the joint and undivided properties, then his/her sale/transfer shall remain valid to the extent of his/her share, but not more than that of his/her share in the joint and undivided properties. So, in case of alienation/transfer made by any co-owner (co- sharer) in the joint and undivided properties in excess of his/her share, in that case, his/her alienation in excess of his/her share shall be invalid/void and the alienation/transfer/sale made through the sale deed shall remain valid only to the extent of his/her share in the joint and undivided sold properties. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court:-
Legal Reasoning
(i) Smt. Bulli Sahu and Others, 1974 (1) CWR 222—Ganapath Sahu and another Vrs. AIR 1973 (SC) 2451—Gorakh Nath Dube Vrs. Hari Narain Singh and others, 2013 (I) CLR—570—Dillip Kumar Sahoo Vrs. Smt. Malati Rout and others & 116 (2013) CLT 209—Manoj Kumar Nayak and another Vrs. Guna Mohanty and Ors.—T.P.Act, 1882—Sections 44 & 54—Transfer of property more than transferor’s interest in land jointly held with others is not invalid in toto. It would be valid and operative to the extent to transferor’s interest in the lands. (Para 10) (ii) (II) 2017 Civ.L.T. 185 (SC)—T.Ravi and another Vrs. B. Chinna Narasimha and Ors.—(Para 40)—T.P.Act, 1882— Page 14 of 20 {{ 15 }} Sections 44 & 54—A co-sharer has right to alienate his own share only, which he had in the property i.e. to extent of his share only. The vendor has no authority to sell the land of other co-sharers. (iii) 2024 (3) CCC (Madhya Pradesh) 307—Ahamad Khan and others Vrs. Bhaskar Ddatt Pandey and others—(Para 13)— Although a co-sharer can alienate to the extent of his share, but he cannot alienate any specific piece of land. (iv) 2010 (4) Civil Court Cases 05 (Punjab & Haryana)— Balwinder Singh Vrs. Gurucharan Singh—As per the settled law, any alienation out of the joint property by a co sharer would amount to alienation of the property out of the share. Even there is alienation of any specific Khasara number or specific portion, the same amounts to alienation of the share of the vendor, which is subject to adjustment at the time of partition. It is also well settled that, suit for permanent injunction against a co-owner is not maintainable. 20. As per the discussions and observations made above, when it is held that, the plaintiff and defendant No.1 had half share each in the suit properties and when defendant No.1 is authorised under law to alienate his share in the suit properties, then, at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the alienation/transfer made by the defendant No.1 in favour of the defendant No.2 in respect of the suit properties through registered sale deed dated 15.07.1987 vide Ext.A/3 shall remain valid only to the extent of his half share in the suit properties, but the sale deed dated 15.07.1987 vide Ext.A/3 executed by defendant No.1 in favour of the defendant No.2 cannot be held as invalid and void in toto under law. Page 15 of 20 {{ 16 }} Therefore, the plaintiff is not entitled to get the decree for declaration of title over the entire suit properties i.e. Ac.4.35 decimals against the defendants. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i) 2019 (Suppl.) Civil Court Cases 586 (Madras)—S. Selvarajan (died) Vrs. R. Saraswathi (Died)—Specific Relief Act, 1963—Section 34—Suit for declaration of title—Joint property—Suit for declaration of title without filing the suit for partition in respect to undivided property is not maintainable. (ii) 2024(2) CCC 166 (Orissa)—Tankadhar Pradhan and Ors. Vrs. Bimala Naik @ Dei (dead) and Ors.—Specific Relief Act, 1963—Section 34—A Co-owner/co-sharer of suit properties is not entitled for declaration of his title over the entire suit properties. 21. When after purchasing the share of defendant No.1 in the suit properties through the sale deed dated 15.07.1987 vide Ext.A/3, the defendant No.2 has become the co-owner (co-sharer) of the suit properties with the plaintiff and as per law, she (defendant No.2) is in joint possession of the suit properties with the plaintiff, then at this juncture, the plaintiff is not entitled to get the decree of injunction against the defendant No.2 i.e. against his co-owner in order to injunct her (defendant No.2) from entering into the suit properties. Likewise, when the sale deed dated 15.07.1987 vide Ext.A/3 executed by the defendant No.1 in favour of the defendant No.2 in respect Page 16 of 20 {{ 17 }} of the suit properties is not void, for which, the plaintiff is also not entitled to get the decree of declaration that, the said sale deed dated 15.07.1987 vide Ext.A/3 as void. Therefore, the decisions relied by the learned counsel for the respondent No.2 indicated in paragraph No.14 of this judgment are not applicable to this suit/appeal at hand on law and facts as discussed above. 22. So far as, the other relief prayed for by the plaintiff to declare that, the sale deed dated 15.07.1987 (Ext.A/3) executed by the defendant No.1 in favour of the defendant No.2 is not binding upon him (plaintiff) is concerned; Undisputedly, the plaintiff is not the executant of the sale deed dated 15.07.1987 vide Ext.A/3, because the defendant No.1 is the only executant of that sale deed in favour of the defendant No.2. It is the settled propositions of law, as per Section 31 of the Specific Relief Act, 1963, when the executant of a sale deed wants to annul that deed, then such executant has to seek the relief for cancellation of the said deed. But, when non-executant of a deed wishes to claim that, the deed is bad for any reason, then he (non-executant of the deed) is required to file Page 17 of 20 {{ 18 }} a suit praying for declaration that, the said deed is invalid or non-est or illegal or the same is not binding upon him. 23. Here, in this suit/appeal at hand, undisputedly, the plaintiff is not the executant of the sale deed vide Ext.A/3, for which, it is obvious and natural that, the said sale deed dated 15.07.1987 vide Ext.A/3 is not binding upon him (plaintiff). Because, he (plaintiff) is not a party to that sale deed. When, he (plaintiff) not being an executant of the sale deed vide Ext.A/3 has prayed for a declaration that, the said sale deed (Ext.A/3) is not binding upon him, then at this juncture, the said prayer of the plaintiff cannot be held as non-entertainable under law. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision:- 2010 (12) SCC 112—Suhrid Singh alias Sardool Singh Vrs. Randhir Singh and others—Specific Relief Act, 1963—Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But, if a non-executant seeks annulment of the deed, he has to seek a declaration that, the deed is invalid, or non-est, or illegal or the same is not binding on him. So, in view of the principles of law enunciated by the Apex Court in the ratio of the aforesaid decision, even though, the plaintiff is not entitled for the decree of injunction as well as for the decree of declaration that, the sale deed dated 15.07.1987 vide Ext.A/3 is null and Page 18 of 20 {{ 19 }} void, but he (plaintiff) is entitled for the decree of declaration that, the sale deed dated 15.07.1987 vide Ext.A/3 executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit properties is not binding upon him (plaintiff). 24. On analysis of law and facts relating to the formulated substantial question of law as per the discussions and observations made above, it is held that, the judgment and decree passed by the First Appellate Court in T.A. No.13 of 1990 in setting aside the entire judgment and decree of the Trial Court in T.S. No.38 of 1988 cannot be sustainable under law in full, because out of the reliefs sought for by the plaintiff in his plaint, the plaintiff is entitled for one relief only i.e. for a declaration that, the sale deed dated 15.07.1987 vide Ext.A/3 executed by defendant No.1 in favour of the defendant No.2 in respect of the suit properties is not binding upon him (plaintiff). For which, there is justification under law for making some interference with the judgments and decrees passed by the Trial Court and First Appellate Court through this second appeal filed by the appellant (plaintiff). So, there is some merit in the second appeal of the appellant (plaintiff). The same must succeed in part. Page 19 of 20 {{ 20 }} 25. In result, the second appeal filed by the appellant (plaintiff) is decreed in part on contest, but without cost. The judgment and decree passed by the First Appellate Court in T.A. No.13 of 1990 in setting aside the entire judgment and decree passed by the Trial Court in T.S. No.38 of 1988 is set aside in part. The suit be and the same vide T.S. No.38 of 1988 filed by the plaintiff (appellant in this second appeal) is decreed in part on contest against the defendants, but without cost. It is declared that, the sale deed dated 15.07.1987 vide Ext.A/3 executed by the defendant No.1 in favour of the defendant No.2 in respect of the suit properties is not binding upon the plaintiff. The other prayers of the plaintiff i.e. for declaration that, the sale deed dated 15.07.1987 vide Ext.A/3 executed by the defendant No.1 in favour of the defendant No.2 as void and to injunct the defendant No.2 from entering into the suit properties are refused. Orissa High Court, Cuttack. 04.09.2024//Utkalika Nayak// Junior Stenographer Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Sep-2024 12:31:48 (A.C. Behera), Judge. Page 20 of 20