Can a Co-Owner Sell Part of Undivided Property?

Sukha died on 7 December 1977 and left four plots: Village Survey No. 19 and No. 46 at Padoli, No. 22 at Lakhampur and No. 80 at Kosara, 14.86 H.R. in all (37.15 acres). His daughter Sitabai and his son Sudam were his only legal heirs. Sitabai sued her brother Sudam, and Ramdas as a buyer, for partition and possession of her share, claiming a half share in all four plots.

Sudam had sold Gat No. 19, measuring 2.56H, to Ramdas by a registered sale deed dated 19 March 1980 for Rs. 75,000, without Sitabai's consent. Sitabai argued that the sale was void and not binding on her. Ramdas said he paid valuable consideration, that Sudam told him he was the exclusive owner, that Sitabai knew of the sale, and that the plot was Sudam's self-acquired property.

The trial court found that all four properties were Sukha's self-acquired properties and that the price of Gat No. 19 was very high. It ordered that Sitabai's share could be adjusted from Gat No. 46 of Mauza Padoli, or, if that did not satisfy her share, from the consideration Ramdas had paid for Gat No. 19.

Sitabai appealed. The Additional District Judge set the trial court's decree aside, declared that she was entitled to half the suit property consisting of the four plots, and held that Sudam's sale deed was not binding on her. Ramdas was directed to hand over possession of Gat No. 19 to the legal heirs of defendant No. 2.

Ramdas filed a second appeal in the Nagpur Bench of the Bombay High Court. It was disposed of by a consent decree under which the sale deed in favour of Ramdas was declared null and void and not binding on Sitabai to the extent of her one-half share in Gat No. 19, and valid and binding as to the half share sold to him. The High Court directed Ramdas to hand over possession to Sitabai to the extent of her one-half share and said she was at liberty to start appropriate proceedings for delivery of possession. Ramdas, still aggrieved, appealed to the Supreme Court (Civil Appeal No. 6508 of 2005).

A co-sharer owns an undivided share in the whole property, not a defined slice of one plot. A registered sale deed can therefore pass that undivided share, but it cannot give the buyer the right to occupy a particular plot before the property is partitioned.

The Supreme Court relied on the settled principle under the Transfer of Property Act that a purchaser cannot have a better title than his vendor had. It also relied on M.V.S. Manikayala Rao v. M. Narasimhaswami and Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh. Those decisions hold that the buyer of an undivided interest in joint property is not entitled to possession of what he bought and can only sue for partition.

Ramdas also asked for equity, because he had bought the plot for value and was in possession. The Court refused. He had bought an undivided share in part of the suit property without the knowledge and consent of the co-sharer, and the land was extremely valuable.

The Supreme Court dismissed Ramdas's appeal. It held that all four plots were joint property and that Sitabai and Sudam each owned and possessed a half undivided share in every plot. Sudam could not sell the entire Gat No. 19, and Ramdas, stepping into Sudam's shoes, could be declared owner of at most half of that plot and could not claim possession of the whole.

The Court quoted Manikayala Rao, which holds that the purchaser of a co-parcener's undivided interest in joint family property is not entitled to possession of what he bought, and then drew three points from it:

• An undivided share of a co-sharer may be sold, but possession cannot be handed to the buyer unless the property is partitioned by metes and bounds, whether amicably by mutual settlement or by a decree of the court.
• A co-sharer cannot sell by a registered sale deed more than his own share, and cannot deliver possession until the property is partitioned.
• Equity does not help a buyer who bought an undivided share in a part of the suit property without the co-sharer's knowledge and consent, where the land is extremely valuable.

• Collect the registered sale deed, the family's revenue records for each plot and any earlier partition deed or court decree. They show who the co-sharers are and which plots are joint.
• A buyer of an undivided share should sue for partition and ask for allotment of what falls to the share bought. That is the remedy the Court identified, and possession follows only after partition.
• If a decree is already in your favour, start execution proceedings to get possession. In this case the Court allowed Sitabai to start execution if Ramdas did not hand over possession within three months.
• The biggest mistake is buying an undivided share and then demanding possession of one specific plot before partition.