Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1292-1293 OF 2002

Gajara Vishnu Gosavi …. Appellant

Versus

Prakash Nanasahed Kamble & Ors. …. Respondents

O R D E R

1. These appeals have been filed against the judgment and order of the  

Bombay High Court dated 21.3.2000 by which Second Appeal No.183 of  

2000 filed by the appellant has been dismissed and judgments and orders of  

the Trial Court as well as the First Appellate Court have been affirmed.  

2. The facts and circumstances giving rise to this case are that appellant  

filed  Civil  Suit  No.6/87  seeking  declaration  that  she  was  owner  of  the  

western half part of the suit property, i.e.  city Survey no.83 and in actual

physical  possession  thereof,  and  further  for  restraining  the  

defendants/respondents to cause any obstruction to her possession over the  

said property and also for possession of the other part of the property.

3. The said relief was claimed on the basis that the entire CTS no.83 was  

originally owned by Krishna Kamble and Maruti Kamble.  Both brothers  

had been living separately and were using their respective half part in the  

suit premises.  Krishna Kamble was in possession of eastern half part of the  

said property.  Krishna Kamble died leaving only one son Shripati who died  

leaving only heir  i.e.  daughter  Housabai.   Maruti  had two sons,  namely,  

Genu  and  Dadu.   Dadu  died  issueless.   Genu  had  three  sons,  namely  

Ganapati,  Nana  and  Shankar.   Ganapati  died  issueless.   Shri  Prakash  

Nanasaheb  Kamble, defendant no.1 is the son of Nana and defendant no.2  

Manik  Shankar  Kamble   is  the  son  of  Shankar.   Appellant/plaintiff  

purchased the property of Krishna Kamble from legal heir Housabai Sitaram  

Chavan as she became owner of the said property after  the death of  her  

father Shripati.  In fact, said Housabai had sold her share to one Anjirabai  

Guruling Kamble  by registered sale deed dated 13.1.1976.  After the death  

of the said purchaser Anjirabai, her husband Guruling Kamble became the  

owner  of  the  said  property  and  from  him  the  plaintiff/appellant  had  

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purchased the  same vide registered sale  deed dated 4.7.1984.   Thus,  she  

claimed  the  ownership  of  the  property  i.e.  western  half  part  of  the  suit  

property.  It is further claimed by the appellant/plaintiff that she had spent  

huge  amount  and  raised  construction  of  four  rooms  after  taking  the  

permission  of  the  Nagar  Parishad.   In  absence  of  the  appellant/plaintiff,  

defendant/respondent  nos.3  and  4  occupied  the  suit  property  at  the  

instigation  of  defendant/respondent  nos.1  and  2  and  in  spite  of  several  

requests  the possession of the said property was not  handed over to her.  

Hence, the suit was filed on 4.7.1984 for the aforesaid reliefs.

4.   Defendant/respondent  nos.1  and  2  contested  the  suit  on  various  

grounds, inter alia, that Housabai was a necessary party.  As she had not  

been impleaded as defendant/respondent, the suit could not be entertained  

for want of necessary party.  The property had never been partitioned.  The  

sale deed executed by Housabai could not be valid and the same  was liable  

to be dismissed.   

5. On the basis of the pleadings, the trial Court framed  various issues,  

including whether the plaintiff/appellant was in lawful possession and had  

valid  title  over  the  suit  property,  and  as  to  whether  the  

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defendants/respondents had encroached upon the said property.  The parties  

led evidence and after  considering the  same,  the  trial  Court  came to the  

conclusion that  no partition had ever taken place. Therefore, Housabai could  

not claim any specific share in the property.  She could be a co-sharer in  

common and joint possession.  As the partition had never been effected,  the  

question  of  handing  over  of  the  possession  either  to  the  present  

appellant/plaintiff or her vendee could not arise.  Therefore, her possession  

was  merely  a  forcible  possession  and  was  not  valid  and  the  suit  was  

dismissed  vide  judgment  and  decree  dated  19.12.1991.  The  trial  Court  

observed  that  at  the  most  on  the  basis  of  the  sale  deed  Anjirabai  and  

thereafter appellant/plaintiff could become the owner in common alongwith  

defendants/respondents in respect of the suit property but as there was no  

partition, the appellant/plaintiff could not be in lawful  possession.

6. The said findings of  fact  had been affirmed by the First  Appellate  

Court in Regular Civil Appeal No.104 of 1992 decided on 13.8.1999, as well  

as by the High Court vide impugned judgment.  Hence, this appeal.

7. Shri Vijay Kumar,  learned counsel appearing for the appellant has  

raised  all  the  issues  which  had  been raised  before  the  courts  below and  

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submitted  that  as  the  appellant  had  been  a  bona  fide  purchaser  for  

consideration and had been put in possession by her vendee Anjirabai who  

had purchased the suit property vide registered sale deed from Housabai, the  

suit ought to have been decreed and has tried to persuade us taking through  

the pleadings as well as the depositions to allow the appeals.   

8. Be that as it may, three courts have recorded the concurrent findings  

of fact that partition had never been given effect  to in respect of the suit  

property.  Therefore, Housabai could transfer her share.  But the question  

does arise as to whether without partition by metes and bounds, she could  

put her vendee Anjirabai in possession.   

9. In Kartar Singh vs. Harjinder Singh, AIR 1990 SC 854, this Court  

held that where the shares are separable and a party enters into an agreement  

even  for  sale  of  share  belonging  to  other  co-sharer,  a  suit  for  specific  

performance was maintainable at least for the share of the executor of the  

agreement, if not for the share of other co-sharers.  It was further observed:  

“As  regards  the  difficulty  pointed  out  by  the  High  Court,  namely,  that  the  decree  of  specific  performance  cannot  be  granted since the property will have to be partitioned, we are of  the view that this is not a legal difficulty. Whenever a share in  

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the  property  is  sold,  the  vendee has  a  right  to  apply for  the  partition of the property and get the share demarcated.”

In recent judgment in Ramdas vs. Sitabai & Ors.  JT 2009 (8) SC 224 to  

which one of us (Dr. B.S. Chauhan J.) was a party placing reliance upon two  

earlier  judgments  of  this  Court  in  M.V.S.  Manikayala  Rao  vs.  M.  

Narasimhaswami & Ors. AIR 1966 SC 470; and Sidheshwar Mukherjee vs.  

Bhubneshwar Prasad Narain Singh & Ors,  AIR 1953 SC 487, this Court  

came to the conclusion 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.  He has a  right only to sue for partition of the property and ask  

for allotment of his share in the suit property.  

10. There is another aspect of the matter.  An agricultural land belonging  

to the coparceners/co-sharers may be in their joint possession. The sale of  

undivided share by one co-sharer may be unlawful/illegal as various statutes  

put an embargo on fragmentation of holdings below the prescribed extent.  

11. Thus, in view of the above, the law emerges to the effect that in a  

given case an  undivided share of a co-parcener can be a subject matter of  

sale/transfer,  but possession cannot be handed over to the vendee unless the  

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property is partitioned by metes and bounds, either by the decree of a Court  

in a partition suit, or by settlement among the co-sharers.

12. In  the  instant  case,  all  the  three  courts  below  have  recorded  the  

finding of fact that there had been no partition of the suit property. Such  

concurrent finding does not require interference as there is nothing on record  

to show that it was perverse, being based on no evidence or contrary to the  

evidence on record.  

13. In view of the above, we do not find any ground to interfere with the  

impugned judgment. Appeals are accordingly dismissed.  

…………………………………….J. (DALVEER BHANDARI)

…………………………………….J. (Dr. B.S. CHAUHAN)

New Delhi; September 16,  2009.

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