The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Sep-2024 11:55:13 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). NO.21913 OF 2019 Sashirekha Das …. Petitioner Mr. Samir Kumar Mishra, Senior Advocate being assisted by Ms. Sushrita Sahoo, Advocate -versus- The Additional District Magistrate Khordha and others …. Opp. Parties
Legal Reasoning
Mr. Amiya Kumar Mishra, Additional Government Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 25.09.2024 Order No. 03. 1. This matter is taken up through hybrid mode. 2. Petitioner in this writ petition seeks to assail the order dated 21st August, 2019 (Annexue-4) passed by the District Registrar- cum-Additional District Magistrate, Khordha in Registration Appeal No.01 of 2017, whereby dismissing the appeal under Section 72 of the Registration Act, 1908 (For brevity ‘the Act’), the order dated 26th May, 2017 (Annexure-3) passed by Sub- Registrar, Banpur refusing to register the sale deed presented by the Petitioner in respect of her interest in the property in question. 3. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that CS No.23/148 of 2014-13 filed for partition was preliminarily decreed vide judgment dated 30th March, 2016 (Annexure-1) passed by learned Civil Judge, (Senior Division), Banpur. In the judgment following order was passed: The suit be and the same is preliminarily decreed on contest against the Defendants and it is hereby declared that each of the Plaintiff and the Defendant No.1 and 2 are entitled to get one third share out of the suit schedule Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Sep-2024 11:55:13 ’A’,’B’,’C’, and ’D’ properties and that each of the Plaintiff and the Defendant No.1 are entitled to get one half share out of the suit schedule ’E’ properties. They are directed to effect an amicable partition accordingly by metes and bounds within three months from the date of this order, failing which the Plaintiff is at liberty to effect the same through the process of the Court. Before parting, with this suit it is made clear that the possession of the parties as far as practicable shall be respected while effecting such partition. The parties are to bear their own costs throughout. The pleader’s fee be assessed at the contested scale. 4. During pendency of the final decree proceeding, the Petitioner, who was Defendant No.2 in the suit wished to alienate her interest in the suit property and executed a sale deed in favour of another co-sharer, namely, Duryodhan Sahu-Defendant No.1 in the suit for her legal necessity. It is submitted that the Petitioner does not intend to transfer any specific portion of the suit property, but her interest to the same. Section 44 of the Transfer of Property Act, 1982 clearly stipulates that a co-sharer can transfer his/her interest in the suit property. Thus, there was no difficulty on the part of the Sub-Registrar to register the sale deed. The Sub-Registrar, Banpur vide his order dated 26th May, 2017 (Annexure-3) refused to register the sale deed on the ground that the Petitioner did not have any right, title and interest over the property sought to be transferred. The Sub-Registrar also relied upon the instruction imparted by the Government in Revenue and Disaster management Department in consonance in Section 22(a) (2) of the Act. It stipulates that in case of urgency, the registration of property jointly held or recorded in the name of deceased parents, may be allowed if all the LRs/share holders agree to the same. Being aggrieved, the Petitioner moved this Court in W.P.(C). No.12545 of 2017 before this Court, which was Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Sep-2024 11:55:13 withdrawn to prefer appeal before the District Registrar. Accordingly appeal under Section 72 of the Act was filed, which was registered as Appeal No.01 of 2017. The appellate authority held that since there is no amicable partition between the co- sharers, no registration of the sale deed with regard to a parcel of the property can be allowed. Assailing the same, the Petitioner has filed this writ petition. 5. Mr. Mishra, learned Additional Government Advocate defending the order passed under Annexures-3 and 4 submits that since final decree proceeding is in progress, the impugned order should not be interfered with. In the meantime, more than five years have already been elapsed. Thus, the Petitioner should wait till the final decree is drawn up in the Civil Suit. 6. Mr. Mallick, learned counsel for Opposite Party No.3 also reiterates the same and submits that final decree proceeding is at the stage of culmination. Thus, the Petitioner can wait till drawal of the final decree to alienate her interest in the suit property. 7. Considering the submission made by learned counsel for the parties, this Court finds no material on record with regard to the stage of the final decree proceeding except the submission made by learned counsel for Opposite Party No.3. It does not make clear up-to-date status of the final decree proceeding. Law is well settled that a co-sharer may alienate his/her interest in the property in the event there is any legal necessity. When a specific parcel of the land is intended to be alienated, consent of other co- sharers is necessary. But, when a co-sharer transfers his/her defined interest to another co-sharer of the joint property, no consent of other co-sharers is necessary. Section 44 of the Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 26-Sep-2024 11:55:13 Transfer of Properties Act, 1982 also protects the interest of the sold to him/her. In the instant case, on perusal of the sale deed under Annexure-2, it is clear that the Petitioner intended to transfer her interest in the property, which is not beyond the share specified in the preliminary decree. The preliminary decree is yet to be challenged and a final decree proceeding is pending for adjudication. In that view of the matter, there is no difficulty on the part of the Registering Officer to register the sale deed presented by the Petitioner to transfer her interest in the suit property to another co-sharer for her legal necessity. 8. Accordingly, the impugned orders under Annexrues-3 and 4 are set aside and the Sub-Registrar, Banpur is directed to consider the registration of the sale deed if presented before him within two weeks hence, keeping in mind the share allotted to the Petitioner in the preliminary decree passed in Civil Suit No. 23/148 of 2014-13 following due procedure of law. Issue urgent certified copy of this order on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4