REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 6508 OF 2005                                         

Ramdas      .…Appellant

Versus

Sitabai & Ors.                                           ....Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal arises out of a Judgment and Order passed by the High  

Court of Bombay, Nagpur Bench while disposing of a second appeal  

filed by the appellant herein (Mr. Ramdas) who has been arrayed as  

defendant No.3 in the original suit.   The said suit  was filed by the  

plaintiff  –Sitabai  (respondent  No.1  herein)  seeking  for  a  decree  of  

partition  and  for  delivery  of  possession  of  her  share  in  the  suit  

property.  It was alleged in the plaint that the deceased Sukha had a  

son, namely Sudam who was impleaded as defendant No.1 in the suit  

and a daughter (plaintiff-Sitabai).  The plaintiff-Sitabai, therefore, is  

the sister of the defendant No.1-Sudam.  

2. Sukha died on 07.12.1977 and at the time of his death he left behind  

him the following properties :

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Village Survey No. Area (H.R)=Acre Padoli 19 2.56 = = 6.40 Padoli 46 5.47 = = 13.50 Lakhampur 22 4.40 = = 11.00 Kosara 80 2.43 = = 6.08 Total 14.86 = = 37.15

The aforesaid properties which are four in number constitute the  

suit property.

3. In the said suit the plaintiff-Sitabai claimed to be a co-sharer to the  

extent of half share in the said suit property for the reason that the  

plaintiff-Sitabai  and  the  defendant  No.1-Sudam  are  the  only  legal  

heirs of deceased Sukha. It was contended by the plaintiff-Sitabai that  

the  defendant  no.  1-Sudam had sold Gat  No.  19 area  admeasuring  

2.56HR  of  Mouza  Padoli  to  defendant  no.  3-Ramdas  for  a  

consideration of Rs. Rs.75,000/-. It was further stated in the plaint that  

the defendant No.1-Sudam had also executed a sale deed in favour of  

the defendant No.3-Ramdas on 19.03.1980 without the consent of the  

plaintiff-Sitabai. It was contended that the said sale deed is void and  

not binding on the plaintiff-Sitabai since the said transaction was done  

without  the  knowledge  and  consent  of  the  plaintiff-Sitabai.  It  was  

further contended that the plaintiff-Sitabai is entitled for equal share  

i.e.  ½  shares  in  the  suit  property  including  Gat  No.  19  and  the  

defendant no. 1-Sudam had no right and title to sale the same without  

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the  consent  of  the  plaintiff-Sitabai.  Therefore,  the  plaintiff-Sitabai  

prayed for a decree for partition and for recovery of possession.  

4. The suit was contested by the defendants including defendant No.3-

Ramdas (the appellant herein).  Defendant no. 3-Ramdas in his written  

statement  admitted  that  he  had  purchased  the  aforesaid  land  from  

defendant  no.  1-Sudam  by  registered  sale  deed  dated  19.03.1980.  

However, it was stated that the defendant No. 1-Ramdas had informed  

him  that  he  (i.e.  defendant  No.  1)  is  the  exclusive  owner  of  the  

aforesaid  land.  Defendant  No.  3-Ramdas further  stated  that  he had  

purchased  the  aforesaid  land  for  valuable  consideration  and  the  

plaintiff-Sitabai was aware of this transaction. He also stated that the  

aforesaid  was  a  self-acquired  property  of  the  defendant  No.1  and  

therefore the same was not open for partition.   

5. On the basis of the pleadings of the parties, 13 issues were framed and  

all the parties led their evidence.  The trial court recorded the evidence  

and heard the parties. The trial court after going through the evidence  

on record held that the aforesaid four properties were the self-acquired  

properties of Sukha. The trial court also found that it is an admitted  

fact  that  price  of  Gat  No.19  is  very  high.   Consequently,  it  was  

ordered that the share of the plaintiff could very well be adjusted from  

the land bearing Gat No.46 of Mauza Padoli and in case if her share is  

not satisfied then the plaintiff can very well settle her share from the  3

consideration received from the defendant no. 3-Ramdas.  A decree  

was passed by the trial court holding that the plaintiff is entitled for ¼  

shares of the suit property and that the defendant No.1 is entitled for ¾  

shares in the suit property.   

6. Aggrieved  by  the  said  decision  of  the  trial  court,  the  plaintiff  

(respondent  no.  1  herein)  filed  an  appeal  before  the  Court  of  

Additional District Judge.

7. The Additional District Judge heard the appeal and by judgment and  

order set aside the judgment of the trial court and declared that the  

plaintiff is entitled to half share in the suit property consisting of 4  

plots as mentioned hereinbefore. It was further held that the sale deed  

executed  by  the  defendant  No.1-Sudam in  favour  of  the  defendant  

No.3-Ramdas is not binding on the plaintiff-Sitabai.  The defendant  

No.3-Ramdas was further directed to hand over the possession of the  

land bearing Gat No. 19 area admeasuring 2.56H of Mouza Padoli  

purchased by him to the legal heirs of the defendant No.2.   

8. Being aggrieved by the aforesaid decision of the first appellate court,,  

a second appeal was filed in the Nagpur Bench of the Bombay High  

Court. In the said second appeal, after hearing the counsel appearing  

for the respective parties the High Court disposed of the appeal by  

way of a consent decree wherein the judgment and decree of the ADJ  

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was modified to the extent that one half share of the property already  

sold by defendant No. 1-Sudam to defendant No. 3 and the one half  

share  of  the  plaintiff-Sitabai  could  be  left  intact.   In  terms  of  the  

aforesaid consent decree, the High Court modified the judgment and  

decree passed by the ADJ in the following manner :-

“It is hereby declared that the Sale-Deed executed by  deceased  Defendant  No.1  Sukha  in  favour  of  Defendant  No.3  Ramdas  in  Null  and  void  and  not  binding on plaintiff to the extent of her one-half share  in Gat No.19, and it shall be valid and binding upon  present Respondent Nos. 2 and 3, in so far as one-half  share of Sukha sold on 19th March, 1980 by him to the  present Appellant.”

 9. In terms of  the aforesaid judgment  and order  of  the High Court,  a  

direction  was  issued  to  the  defendant  No.3-Ramdas  to  hand  over  

possession  of  the  property  bearing  Gat  No.  19  area  admeasuring  

2.56H of Mouza Padoli to plaintiff-Sitabai to the extent of her one half  

share thereof. The High Court also observed that the plaintiff-Sitabai  

is  at  liberty  to  initiate  appropriate  proceedings  for  delivery  of  

possession.  With  the  aforesaid  modification  the  second appeal  was  

partly allowed.

10.The defendant No.3-Ramdas (appellant herein) still  being aggrieved  

by the aforesaid judgment and decree passed by the High Court filed  

the present appeal which was admitted and this Court issued notice in  

the matter. 5

11.We have heard the learned counsel appearing for the parties who have  

taken  us  through  the  records  of  the  case  in  support  of  their  rival  

submissions.  Contentions of the counsel for the appellant was that the  

defendant no. 1-Sudam had sold Gat No. 19 area admeasuring 2.56H  

of Mouza Padoli to him (appellant herein) for a consideration of Rs.  

Rs.75,000/-. It was contended that the aforesaid property belonged to  

defendant No.1-Sudam exclusively and the said property was sold to  

them (appellant herein) by a registered sale deed dated 19.3.1980. So,  

the plaintiff-Sitabai is not entitled for any relief with respect to the  

aforesaid property.  

12.It  was  also  submitted  that  it  being  an  admitted  position  that  the  

appellant herein had purchased the entire land bearing Gat No. 19 area  

admeasuring  2.56H  of  Mouza  Padoli,  the  plaintiff-Sitabai  is  not  

entitled   to any decree for partition in respect of the said property.  

Another submission for the counsel appearing the appellants was that  

at  least  on  the  ground  of  equities  the  appellant  is  entitled  to  be  

declared as owner as being in possession of the property in question  

i.e.  Gat  No.  19  area  admeasuring  2.56H of  Mouza  Padoli  and  the  

plaintiff-Sitabai’s claim with regard to the half share in all four plots  

may be adjusted in the remaining three properties.

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13.We  have  considered  the  aforesaid  contentions  in  the  light  of  the  

relevant  records.  All  the  four  properties  which  constitute  the  suit  

property belonged to Sukha who was the absolute owner of the said  

four property. After the death of Sukha, all the aforesaid four property  

was  jointly  owned  and  possessed  by  the  plaintiff-Sitabai  and  

defendant No.1-Sudam as the natural heirs and legal representatives of  

the deceased Sukha.

14.It  could not  also  be  disputed  that  all  the  aforesaid  4 plots  of  land  

which  are  the  suit  property  were  joint  property  and  therefore,  the  

plaintiff-Sitabai  and  defendant  No.  1-Sudam owned  and  possessed  

half undivided share each in all the 4 properties. The defendant No.1-

Sudam  who  is  the  brother  of  the  plaintiff-Sitabai  could  not  have  

therefore sold the entire Gat No. 19 area admeasuring 2.56H of Mouza  

Padoli in favour of the defendant No. 3-Ramdas (appellant herein) in  

as much as the aforesaid land was undivided and the plaintiff-Sitabai  

and defendant No. 1-Sudam were two co-sharers in the said property.  

In that  view of the matter,  the High Court  was correct  and legally  

justified in declaring the plaintiff-Sitabai as the owner and holder of  

half  of  the  shares  in  all  the  four  aforesaid  properties  which  are  

undivided.  The defendant No.1-Sudam being a co-sharer could not  

have sold by a registered sale deed more than his share nor could he  

have delivered possession till the said property is partitioned by the  

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parties amicably or through the intervention of the Court according to  

their share.  It is settled law under the Transfer of Property Act, that a  

purchaser cannot have a better title than what his vender had.  The  

possession  which  is  claimed  by  the  defendant  No.  3-Ramdas  

(appellant herein) in respect of the entire land bearing Gat No. 19 area  

admeasuring  2.56H of  Mouza  Padoli  was  also  illegal  and  without  

proper  sanction  of  law.  So  long  as  the  property  is  joint  and  not-

partitioned,  the  defendant  no.  3-Ramdas  (appellant  herein)  is  not  

entitled  to  get  possession  of  the  said  land.   Even  otherwise,  the  

appellant  herein  having  purchased  the  land  from  defendant  No.1-

Sudam could be entitled to be declared at the most to the extent of half  

share of the said piece of land having stepped into the shoes of his  

vendor  and  could  not  have  asked  for  and  claimed  ownership  and  

possession over the entire land of Gat No. 19 admeasuring 2.56 H.R.

15. Without there being any physical formal partition of an undivided  

landed property, a co-sharer cannot put a vendee in possession although  

such  a  co-sharer  may  have  a  right  to  transfer  his  undivided  share.  

Reliance  in  this  regard  may  be  placed  to  a  decision  of  this  Court  in  

M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966  

SC 470], wherein this Court stated as follows:

“Now, it is well settled that the purchaser of a  co-parcener’s  undivided  interest  in  the  joint  family property is not entitled to possession of  what he had purchased.   His only right is to sue  

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for  partition  of  the  property  and  ask  for  allotment  to  him  of  that  which,  on  partition,  might  be found to fall  to the share of the co- parcener whose share he had purchased.”

16. It  may  be  mentioned  herein  that  the  aforesaid  findings  and the  

conclusions  were  recorded  by  the  Supreme  Court  by  placing  reliance  

upon an earlier judgment of this Court in  Sidheshwar Mukherjee Vs.  

Bhubneshwar  Prasad  Narain  Singh  &  Ors  .   [AIR  1953  SC  487],  

wherein this Court held as under:-

“All  that  (vendee)  purchased  at  the  execution  sale, was the undivided interest of co-parcener  in the joint property.   He did not acquire title to  any defined share in the property and was not  entitled to joint possession from the date of his  purchase.   He could work-out his rights only by  a suit for partition and  his right to possession  would date from the period when a specific  allotment was made in his favour  (Emphasis  added)

17. In view of the aforesaid position there could be no dispute with  

regard to the fact that an undivided share of co-sharer may be a subject  

matter of sale, but possession cannot be handed over to the vendee unless  

the property is partitioned by metes and bounds amicably and through  

mutual settlement or by a decree of the Court.  

18. Our attention was also drawn to the grounds taken by the appellant  

in  his  memorandum  of  appeal  before  the  High  Court  wherein  the  

appellant himself got framed a question of law to the following extent : -

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“Whether the learned First Appellate Court has not  committed perversity in holding that registered sale- deed  dtd.19-3-1980  (Ex.248)  executed  without  obtaining  the  permission  of  Smt.  Sitabai,  present  respondent no.1 (original plaintiff) and thus null and  void in its’ entirety and not binding on her at least to  the extent of the share of executant (Deceased Deft.  No.1)?”

19. Therefore, what the appellant has claimed is only half share of the  

said property. The said issue has been considered at length by the High  

Court  in  its  impugned  judgment.   The  High  Court  has  recorded  the  

statement  made  by  the  counsel  appearing  for  the  defendant  No.3-

Ramdass  (appellant  herein)  that  the  action  of  the  Additional  District  

Judge in declaring that the said sale deed as null and void was not proper  

to the extent of the shares of plaintiff-  Sitabai in the Gat No. 19 area  

admeasuring  2.56H  of  Mouza  Padoli.  Therefore,  the  fact  that  the  

plaintiff-Sitabai was entitled to her half share in the aforesaid property is  

an admitted position and on that basis the consent decree was passed.  

Even otherwise, we are of the considered opinion that the appellant herein  

having purchased only undivided share in the aforesaid property could  

not have purchased, owned and claimed for more than half share in the  

said property nor the appellant could have claimed possession in respect  

of the entire property. The appellant herein has further claimed relief on  

the ground of  equity.  However,  we do not  find any reason to hold in  

favour of  the  appellant  even on the ground of  equity  as  the appellant  

herein himself is responsible for his act in purchasing undivided share in  

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a part of the suit property without the knowledge and consent of the co-

sharer.  Besides, indisputably and as held by the Trial Court, the land in  

Gat No. 19 is extremely valuable and, therefore, the question of equity  

does not arise as we would be doing injustice to one having title and  

ownership if we accept the prayer of the appellant.  

20. Consequently, we find no reason to interfere with the judgment and  

order passed by the High Court and therefore we are of the considered  

view that  the decrees  passed by the first  appellate  court  and the High  

Court are in accordance with law.  The same are affirmed.   Accordingly,  

we issue a direction to appellant herein to handover possession of field  

Gat No. 19 area admeasuring 2.56H of Mouza Padoli, Tahsil & Distt.,  

Chandrapur to the plaintiff-Sitabai within a period of three months from  

today  failing  which  the  plaintiff-Sitabai  would  be  entitled  to  initiate  

appropriate  proceedings  for  execution  of  the  decree  in  which  case  

possession of the half portion of the aforesaid property shall be made and  

given in favour of the plaintiff-Sitabai.

21. In terms of the aforesaid observations and directions this appeal is  

dismissed with costs.

  ...............................……J.

                             [Dr. Mukundakam Sharma]

                                                       .................………………..J. 11

         [Dr. B.S. Chauhan]

New Delhi, May 29, 2009

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