The suit property which is undivided is left with the
co-owners to proceed in accordance with law to get their
shares determined and demarcated before making a
transfer. {Para 24}
25. The point for determination formulated in paragraph 12
above is accordingly answered and it is held that Brij
Mohan alone was not competent to transfer the entire
property without getting his share determined and
demarcated so as to bind the other co-owners.
Accordingly, the defendant-appellant S.K. Golam
Lalchand has rightly been restrained by the decree of
injunction in acting in derogation of the propriety rights
of the co-owners until and unless the partition takes
place.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4177 OF 2024
SK. GOLAM LALCHAND Vs NANDU LAL SHAW @ NAND LAL KESHRI @ NANDU LAL BAYES & ORS.
Author: PANKAJ MITHAL, J.
Citation: 2024 INSC 676.
Dated: SEPTEMBER 10, 2024.
1. Heard Shri Rauf Rahim, learned senior counsel for the
appellant and Shri Pijush K. Roy, learned senior counsel
for the respondent No. 1.
2. The dispute in this Civil Appeal is about the property
measuring more or less 6 Cottahs 1 Chittack and 30 sq.
ft. along with 17 rooms (about 4395 sq. ft. which
comprises of tile sheds/huts) situate at 100/3 Carry
Road, Howrah.
3. The plaintiff-respondent Nandu Lal claims that he had
acquired rights in the aforesaid property through his
father late Salik Ram along with his other brothers and
that Brij Mohan, his cousin, the son of his uncle late Sita
Ram, had no exclusive right to sell the property in favour
of anyone much less to one of the tenants S.K. Golam
Lalchand, the defendant-appellant.
4. The Title Suit No.212/2006 filed by the plaintiffrespondent Nandu Lal was dismissed by the court of first
instance as he failed to prove his possession but in
appeal the decree was reversed and the suit was decreed
disbelieving the family settlement and holding that there
was no partition of the property. The judgment and order
of the First Appellate Court was affirmed by the High
Court in Second Appeal.
5. Aggrieved by the judgment and order of the First
Appellate Court and its affirmation by the High Court
vide judgment and order dated 06.07.2021, the
defendant-appellant has preferred this appeal.
6. The facts in brief are that the suit property was
admittedly purchased by the two brothers namely, late
3
Sita Ram and late Salik Ram in 1959 from one Sahdori
Dasi and both of them had equal rights in the said
property.
7. It is alleged that one of the brothers late Salik Ram gifted
his share in the suit property to his brother late Sita Ram
who allegedly became the absolute owner of the entire
property. The aforesaid late Sita Ram died intestate in
1975 leaving behind his son Brij Mohan and three
daughters who appear to have relinquished their rights in
the suit property in favour of their brother Brij Mohan. It
is also alleged that the suit property under the family
settlement was settled in favour of Brij Mohan.
8. On the other hand, plaintiff-respondent Nandu Lal
alleges that his father late Salik Ram made no gift of his
share in the suit property in favour of late Sita Ram and
that there is no family settlement as alleged by the other
side. Therefore, Brij Mohan, the son of late Sita Ram, had
no right to transfer the whole of the property in favour of
one of the tenants, defendant-appellant S.K. Golam
Lalchand and the sale deed in this regard dated
19.05.2006 is void.
4
9. Upon the aforesaid sale of the entire suit property by Brij
Mohan to defendant-appellant S.K. Golam Lalchand, the
plaintiff-respondent Nandu Lal filed Title Suit
No.212/2006 for declaration and permanent injunction
claiming that the defendant-appellant S.K. Golam
Lalchand could not have acquired any right, title and
interest in the suit property by virtue of any sale deed, if
any, executed by Brij Mohan and that he has no right to
dispossess other tenants from the suit property and,
therefore, he, his men and agents be restrained from
taking forcible possession of any tenanted portion and
from causing any disturbance in the possession of the
plaintiff-respondent Nandu Lal.
10. The plaintiff-respondent Nandu Lal alleged that the suit
property was admittedly the joint property of both late
Sita Ram and his father late Salik Ram. Late Salik Ram
never made any gift of his share in the suit property in
favour of late Sita Ram. There was no family settlement
settling the suit property in favour of Brij Mohan, son of
late Sita Ram. Since the property has not been
5
partitioned, Brij Mohan could not have sold the same in
entirety.
11. The suit was contested by the defendant-appellant S.K.
Golam Lalchand as well as Brij Mohan on the allegation
that late Salik Ram, sometime in 1960, gifted his share in
the suit property to late Sita Ram. Thus, late Sita Ram
became the absolute owner. Upon his death in 1975, the
property devolved upon his son Brij Mohan and three
daughters who relinquished their rights in favour of Brij
Mohan, thus, making Brij Mohan the absolute owner of
the entire property. The defendant-appellant S.K. Golam
Lalchand by filing a separate written statement stated
that he is a bona fide purchaser in good faith of the whole
property vide registered sale deed dated 19.05.2006
executed by Brij Mohan. The said sale deed, in
unequivocal terms, states the manner in which Brij
Mohan had acquired the property. Therefore, the suit of
the plaintiff-respondent Nandu Lal is misconceived and
liable to be dismissed.
12. On the pleadings and submissions of the parties, the
moot question which has arisen before us in the appeal is
6
whether Brij Mohan, son of late Sita Ram, alone was
competent to transfer the entire suit property by way of
sale deed dated 19.05.2006 in favour of defendantappellant S.K. Golam Lalchand.
13. The plaintiff-respondent Nandu Lal, in order to
substantiate his case, apart from other documents and
oral evidence, brought on record the original deed of
purchase of the property of the year 1959 Exh.1 and he
himself appeared as a witness PW-1 to prove his case.
The said original sale deed is undoubtedly in the joint
name of late Salik Ram and late Sita Ram, both of whom
acquired equal rights in the purchased property. This
position is otherwise also admitted to the parties.
14. The defendant-appellant S.K. Golam Lalchand or Brij
Mohan has not led any evidence to prove the gifting of the
share by late Salik Ram in favour of late Sita Ram. No gift
deed in this regard has been produced in evidence.
Therefore, as a natural consequence, both the brothers
late Salik Ram and late Sita Ram continued to be the
joint owners of the property.
7
15. On the death of Sita Ram, his share in the suit property
naturally devolved upon his son Brij Mohan and three
daughters. No evidence was brought on record to
establish that the daughters have relinquished/gifted
their rights in the suit property in favour of their brother
Brij Mohan. In this way, Brij Mohan had not acquired the
rights in the property possessed by his sisters.
16. Even the claim of the defendant-appellant S.K. Golam
Lalchand or Brij Mohan to the suit property on the basis
of the family settlement has not been proved. The
settlement has not been adduced in evidence. Therefore,
by no stretch of imagination, it can be said that Brij
Mohan had acquired exclusive right in the entire property
acquired and possessed by late Salik Ram and late Sita
Ram by virtue of the sale deed 1959 Exh.1.
17. Even the Trial Court which had dismissed the suit of the
plaintiff-respondent Nandu Lal has categorically recorded
that the suit property was never partitioned as the
defendant-appellant S.K. Golam Lalchand had not
produced any cogent material on record to prove the
partition meaning thereby the property continued to be a
joint property.
18. The First Appellate Court also recorded a finding that it is
beyond pale of controversy that the suit property was
equally owned by late Salik Ram and late Sita Ram and
that the property had always remained undivided and
joint between the co-owners. The family settlement on the
basis of which partition or settlement is being claimed
was never produced in evidence and proved. The First
Appellate Court further recorded that the sisters of Brij
Mohan have not gifted their share in the property or have
relinquished their rights in it as no such documentary
evidence was brought on record.
19. The above findings of the Trial Court and that of the First
Appellate Court have not been disturbed by the High
Court rather the Second Appellate Court has accepted
the same which clearly demonstrates that the story of
family settlement, as set up by the defendant-appellant
S.K. Golam Lalchand and Brij Mohan was totally
disbelieved by all the three courts. Moreover, it had come
to the forefront that the property had remained the joint
property of late Salik Ram and late Sita Ram as the
gifting of share by late Salik Ram in favour of late Sita
Ram was not proved. The gifting and the relinquishment
of shares by the three daughters/sisters in favour of Brij
Mohan also could not be established.
20. In this view of the matter, the entire property purchased
by the two brothers late Salik Ram and late Sita Ram in
the year 1959 vide Exh.1 continued to be the joint
property in which both of them had equal rights. On their
death, the same devolved upon their respective heirs and
legal representatives including Brij Mohan, his three
sisters on one side and plaintiff-respondent Nandu Lal,
his three brothers and five sisters on the other side.
Thus, Brij Mohan alone was not competent to execute a
sale of the entire property in favour of the defendantappellant S.K. Golam Lalchand, that too without its
partition by metes and bounds.
21. Since the suit property has many co-owners including the
plaintiff-respondent Nandu Lal and Brij Mohan, the
defendant-appellant S.K. Golam Lalchand could not have
acquired right, title and interest in the whole of the suit
property solely on the basis of the sale deed dated
19.05.2006 executed by Brij Mohan. The said sale deed,
if at all, in accordance with Section 44 of the Transfer of
Property Act, 1882 may be a valid document to the extent
of the share of Brij Mohan in the property and defendantappellant S.K. Golam Lalchand is free to take remedies to
claim appropriate relief either by suit of partition or by
suit of compensation and damages against Brij Mohan.
22. The authorities cited on behalf of the defendant-appellant
S.K. Golam Lalchand are only to the effect that there is
no illegality on his part in purchasing the share of Brij
Mohan in the suit property and to that effect the sale in
his favour is valid. There are no two opinions on the
above aspect as mentioned earlier but those authorities
do not help him in any way to enable us to reverse the
decree passed by the First Appellate Court as affirmed by
the High Court.
23. A faint effort was made in the end to contend that the
plaintiff-respondent Nandu Lal had not asked for any
relief of cancellation of the sale deed by which the
property was purchased by the defendant-appellant S.K.
Golam Lalchand and, therefore, is not entitle to any relief
in this suit. The argument has been noted only to be
rejected for the simple reason that Section 31 of the
Specific Relief Act, 1963 uses the word ‘may’ for getting
declared the instrument as void which is not imperative
in every case, more particularly when the person is not a
party to such an instrument.
24. The suit property which is undivided is left with the
co-owners to proceed in accordance with law to get their
shares determined and demarcated before making a
transfer.
25. The point for determination formulated in paragraph 12
above is accordingly answered and it is held that Brij
Mohan alone was not competent to transfer the entire
property without getting his share determined and
demarcated so as to bind the other co-owners.
Accordingly, the defendant-appellant S.K. Golam
Lalchand has rightly been restrained by the decree of
injunction in acting in derogation of the propriety rights
of the co-owners until and unless the partition takes
place.
26. In the above facts and circumstances, we do not find any
merit in this appeal and the same is dismissed upholding
the judgments and orders of the High Court dated
06.07.2021 and of the First Appellate Court dated
07.04.2018.
27. In the facts and circumstances of the case, there shall be
no orders as to costs.
..........………………………….. J.
(SUDHANSHU DHULIA)
....……………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
SEPTEMBER 10, 2024.
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