The plaintiff-appellant had filed an Appeal against the judgment and decree passed by learned Additional District Judge. The plaintiff-appellant- filed the aforesaid title suit for declaration that the registered sale deed dated 30-10-1998 executed by defendant No. 2-respondent No. 2 in favour of defendant No. 1-respondent No. 1 as inoperative, illegal, without consideration and not binding on the plaintiff.
The plaintiff claimed that the defendant No. 2 sold the suit property which is joint family property without the consent of the other coparceners.
The defendants filed the contesting written statement alleging that there had already been severance of status of coparcenary and there had already been separation in the family long ago. The suit property was in possession of the defendant No. 2, therefore, he sold the same to the defendant No. 1.
The trial court dismissed the suit finding that the defendant No. 2 had the authority to sell the property. On appeal, the Lower Appellate Court recording the same finding dismissed the title appeal.
The submission of the learned counsel was that although, there was separation between the parties but there had been no partition by metes and bounds, therefore, unless a consent is obtained by other coparcener/cotenant, the defendant No. 2 could not have transferred the property to the defendant No. 1. It may be mentioned here that in the case of Kalyani vs. Narayanan, AIR 1980 SC 1173, the Apex Court has held that partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenery is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenery with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. In the present case, it is an admitted fact that the parties are separate. Therefore, there is no existence of coparcenery family. Now, therefore, even if it is held that there is no partition by metes and bounds accepting the submission of the learned counsel for the appellant, then also after coming into force of the Hindu Succession Act, 1956, section 30 which proves that any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus and in the explanation, it is specifically mentioned that the interest of a male Hindu in a Mitakshara coparcenery property be deemed to be the property capable of being disposed of by him or by her within the meaning of this section. Now, therefore, even if the property is held to be the joint property then also a coparcener has the right to dispose of the same i.e. his share. The relief claimed by the plaintiff is that because the property is coparcenery property, the coparcener could not have sold the property. This relief claimed by the plaintiff is contrary to the provision as contained in section 30 of the Hindu Succession Act, 1956. Further, in this case, separation has already been admitted. Whether there is partition or no partition is a matter that can be decided in properly constituted suit. Here, the question raised is as to whether a coparcener can sell his property or not?
In 2009(4) PLJR 225 SC (Gajara Vishnu Gosavi vs. Prakash Nanasahed Kamble & Ors.) the Apex Court has held that undivided share of a coparcener can be subject matter of sale/transfer. Therefore, the contention raised by the learned counsel for the appellant that the coparcener cannot transfer is concerned, has got no force in the eye of law.
Brij Kishore Chaubey vs. Ramkaran Singh Yadav AIR 2013 Patna 101
