Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK WP(C) No.4340 of 2025 An application under Articles 226 & 227 of the Constitution of India. *** Damodar Mishra .......…… Petitioner -VERSUS- State of Odisha & Others ……….. Opposite Parties Counsel appeared for the parties: For the Petitioner : Mr.Karunakar Rath,Advocate. For the Opposite Parties : Mr. G.Mohanty, SC P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing: 18.03.2025 :: Date of Judgment : 03.04.2025 WP(C) No.4340 of 2025 Page 1 of 9 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This writ petition under Articles 226 and 227 of the Constitution of the India, 1950 has been filed by the petitioner praying for quashing the letter No.5554 dated 25.10.2024 of the Collector, Cuttack and to direct the Opposite Parties to execute and register the sale deed of the petitioner concerning the transfer of his shares in Plot No.1932, 1933 and 1934 under Khata No.435/143 and 435/203 in Mouja Cuttack Town under Unit No.14. 2. The case of the petitioner in this writ petition is that, he (petitioner) being an old man, in order to meet his self-medical treatments, he (petitioner) decided to sell his shares in Plot Nos.1932, 1933 and 1934 and gave proposal for sale of the same to one Karunakar Rath for consideration amount of Rs.40,00,000/- (Forty Lakh Rupees only), to which, Karunakar Rath accepted and agreed to purchase. Accordingly, the petitioner executed the deed for selling his shares in the above three Plots in favour of his vendee Karunakar Rath and applied for slot booking for registration of that sale deed WP(C) No.4340 of 2025 Page 2 of 9 before Sub-registrar, Cuttack (O.P. No.3), but, the slot for registration could not be booked through oral expressions made by the sub-Registrar, Cuttack (O.P. No.3) that, the Plot Nos.1932, 1933 and 1934 are the joint properties of the petitioner (vendor) and his other co-sharers and when, the petitioner is interested only to sell his shares in the said three plots covered in that sale deed, (those have not been partitioned/divided between the petitioner and his co-sharers till yet through any metes and bounds partition), then, due to the restrictions imposed by the Collector, Cuttack in its letter No.5554 dated 25.10.2024, he (petitioner) cannot transfer his shares through sale deed in the Plot Nos.1932, 1933 and 1934 under Khata No.435/143 and 435/203 in Mouja Cuttack Town under Unit No.14 in favour of Karunakar Rath, for which, the deed of sale executed by him (petitioner) in order to transfer his sharers in Plot Nos.1932, 1933 and 1934 cannot be registered before him (O.P. No.3) For which, without getting any way, the petitioner filed this writ petition against the Opposite Parties including O.P. No.3 praying for quashing the letter No.5554 dated 25.10.2024 of the Collector, Cuttack and to direct the O.P. No.3 to register the sale deed for transferring his shares in Plot Nos.1932, 1933 and 1934 WP(C) No.4340 of 2025 Page 3 of 9 under Khata No.435/143 and 435/203 in Mouja Cuttack Town under Unit No.14 in favour of Karunakar Rath, even though, the said plots are the joint and undivided properties of the petitioner and his co-sharers. Because, the petitioner has his shares in the said plots, for which, he (petitioner) is legally entitled to alienate/transfer his shares in the said plot Nos.1932, 1933 and 1934 in favour of his vendee Karunakar Rath. 3. I have already heard from the learned counsel for the petitioner and learned Standing Counsel for the State on behalf of the Opposite Parties. 4. Section 44 of the Transfer of the Property Act, 1882 does not prohibit any co-owner for alienation of his/her undivided interest in the joint properties. On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:- (i)
Legal Reasoning
In a case between Dilip Kumar Sahoo Vrs. Smt. Malati Rout & Others reported in 2013 (Supp.1) OLR 410 that, neither Section 4 of the Partition Act nor Section 44 of the Transfer of Property Act prohibits the sale of undivided interest by a co-owner. However, where, the sale is in respect of the dwelling house belonging to undivided family, the purchaser cannot claim separate possession. WP(C) No.4340 of 2025 Page 4 of 9 (ii) In a case between Ganapath Sahu & Another Vrs. Smt. Bulli Sahu & Others reported in AIR 1974 Orissa 192 at Para No.10 that, transfer of property through a sale deed more than the transferor’s interest in lands jointly held with others shall not make the sale deed invalid in toto. It would be valid and operative to the extent of the transferor’s interest in the sold lands. (iii) In a case between Gorakh Nath Dube Vrs. Hari Narain Singh and others reported in AIR 1973 (S.C.) 2451 that, an alienation made in excess of power to transfer would be to the extent of the excess of power is invalid. (iv) In a case between Ashok Kapoor Vrs. Murtu Devi reported in 2018 (Supp.) Civ.C.C. 749 (Himanchal Pradesh) that, a joint owner/co-owner, just as an individual owner, has an inherent right to alienate the joint property, limited to the extent and the nature of his share holding. Upon transfer of his share or a part thereof, a co-sharer transfer only such rights as vest in him as a joint owner, namely, his specified share or a part thereof in the community of joint owners with commonality of possession. (v) In a case between Gurdeep Singh & Others Vrs. Kulwant Singh & Others reported in 2018(1) Civ.C.C. 546 (Punjab & Haryana) that, sale of specific portion of land would amount to sale of only a share in the joint land. As vendors were not in exclusive possession of any portion of the joint land, they could not deliver possession of any such portion. WP(C) No.4340 of 2025 Page 5 of 9 (vi) In a case between Sudam Das Vrs. Krushna Mahakur reported in JBR Vol-XVII (1982) Part-II Page 43 that, when one of the co-sharer sells his share, the purchaser will become the co-sharer in place of the seller. If he wants to record some particular plot of land in his name, he has to make partition suit to the court or persuade the other co-sharers to distribute the land among themselves. (vii) In a case between Gopinath Sahu & Others Vrs. State of Orissa & Others reported in 2020 (2) OLR 559 that, statutory provision cannot be overridden by the executive instructions. In case of conflict, the statutory provision shall prevail the order/instruction, which is ultravires, cannot sustain in the eye of law. (viii) In a case between Commissioner of Central Excise, Jajpur-II Vrs. M/s.Super Synotex (India) Ltd. & Others reported in 2014 (1) CCC 118 (S.C.) that, circulars contrary to legislative intent are invalid. (ix) In a case between Radhashyam Panigrahi Vrs. Registrar (Admn.), Orissa High Court & Another reported in 107 (2009) CLT 673 that, Executive instructions do not apply where statutory rules govern the field. (x) In a case between Commissioner of Central Excise, Bolpur Vrs. M/s. Ratan Melting & Wire Industries reported in 2009 (1) CLR (SC) 174 that, Circular, which is contrary to the statutory provisions has really no existence in law. (xi) In a case between Harihar Mohapatra & Others Vrs. Commissioner of Land Records and Settlement, Orissa & Others reported in 1998 (2) OLR 495 that, Executive instruction stands on a lower footing than a statutory rule. WP(C) No.4340 of 2025 Page 6 of 9 5. Here, in this matter at hand, when Section 44 of The Transfer of Property Act, 1882 empowers/authorizes a co-owner of a plot like the petitioner in this writ petition for alienation of his/her undivided interest/share in the joint plots/properties, then, as per law, the transfer by a co-owner (co-sharer) of his/her undivided interest in joint and undivided properties cannot be denied as per law. 6. Therefore, as per law, a co-sharer/co-owner has his/her inherent right to alienate his/her share/interest in the joint and undivided properties to the extent of his/her share and even there will be a sell of specific portion of land in the joint and undivided properties indicating boundaries thereof, still then, the said transfer/sell would be deemed as a transfer of share of the vendor in the said joint and undivided properties. 7. As per law, when any executive instruction/circular or order contrary to the statutory law cannot override the statutory law and when, letter No.5554 dated 25.10.2024 (Annexure 3) of the Collector, Cuttack itself is not prohibiting/banning the transfer of share/interest by a co-sharer in his/her joint and undivided properties, as the said letter of the Collector may be operative in WP(C) No.4340 of 2025 Page 7 of 9 respect of alienation of part plot by an individual/exclusive owner of a plot, then at this juncture, without quashing/setting aside the letter No.5554 dated 25.10.2024 of the Collector, Cuttack, (as the same is not contravening Section 44 of the T.P. Act, 1882) and by applying the principles of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court, it is felt proper to allow this writ petition filed by the petitioner in part directing the District Sub-Registrar, Cuttack (O.P. No.3) to register the sale deed in respect of sell made by the petitioner to the extent of his share in the joint and undivided plots vide Plot Nos.1932, 1933 and 1934 under Khata No.435/143 and 435/203 in Mouja Cuttack Town under Unit No.14 without alienating any specific part/portion of the said plots and without indicating any boundaries thereof, but, only indicating the transfer of his interest/share in the said sold Plots vide Plot Nos.1932, 1933 and 1934. 8. As such, there is some merit in the writ petition of the petitioner. The same is to be allowed in part. 9.
Decision
In result, the writ petition filed by the petitioner is allowed in part on contest. WP(C) No.4340 of 2025 Page 8 of 9 10. District Sub-Registrar, Cuttack (O.P. No.3) is directed to register the sale deed for alienation of the share of the vendor/petitioner (Damodar Mishra) in Plot Nos.1932, 1933 and 1934 under Khata No.435/143 and 435/203 in Mouja Cuttack Town under Unit No.14 in favour of his vendee Karunakar Rath without indicating the sale of any specific portion of the said plots and without indicating the boundaries, but, only indicating the alienation of his share/interest therein. 11. District Sub-Registrar, Cuttack (O.P. No.3) is directed to register the sale deed as per law according to the provisions of the Registration Act, 1908 and Rules, if the same is presented by the petitioner for registration indicating the sale of interest/share in the sold plots as indicated above and to return the sale deed to the petitioner within seven days after its registration. 12. Accordingly, the writ petition filed by the petitioner is disposed of finally. (ANANDA CHANDRA BEHERA) JUDGE Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Apr-2025 19:51:00 High Court of Orissa, Cuttack 03.04.2025// Binayak Sahoo Jr. Stenographer WP(C) No.4340 of 2025 Page 9 of 9