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2012 DIGILAW 1656 (PAT)

Brij Kishore Chaubey v. Ram Karan Singh Yadav

2012-12-07

MUNGESHWAR SAHOO

body2012
ORAL ORDER 1. Heard the learned counsel, Mr. Radha Mohan Pandey appearing on behalf of the appellant under Order 41 Rule 11 C.P.C. 2. The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 19.03.2008 passed by learned Additional District Judge, F.T.C. IV, Kaimur at Bhabhua in Title Appeal No.27 of 2005/19 of 2005 dismissing the appeal and confirming the judgment and decree dated 31.05.2005 passed by Sub Judge II, Bhabhua in Title Suit No.252 of 1998/107 of 2003. 3. It appears that the plaintiff-appellant-appellant filed the aforesaid title suit for declaration that the registered sale deed no.10411 dated 30.10.1998 executed by defendant no.2-respondent no.2 in favour of defendant no.1-respondent no.1 is inoperative, illegal, without consideration and not binding on the plaintiff. 4. The plaintiff claimed the aforesaid relief alleging that the defendant no.2 sold the suit property which is joint family property without the consent of the other coparceners. 5. The defendants filed the contesting written statement alleging that there had already been severance of status of co-parcenery 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. 6. 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 also recording the same finding dismissed the title appeal. 7. The learned counsel for the appellant raised two substantial questions of law. Firstly, the learned counsel submitted that it is settled principles of law that without the consent of the coparcener, no joint family property could have been sold unless there is conclusive partition between the coparceners. Secondly, the learned counsel submitted that the consolidation proceeding is going on, therefore, the sale deed itself is void because of bar under section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. 8. Secondly, the learned counsel submitted that the consolidation proceeding is going on, therefore, the sale deed itself is void because of bar under section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. 8. So far the submission of the learned counsel 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/co-tenant, the defendant no.2 could not have transferred the property to the defendant no.1 is concerned, it may be mentioned here that in the case of Kalyani v. Narayanan, AIR 1980 Supreme Court 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 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 coparcenary 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? 9. In 2009(4) PLJR 225 Supreme Court (Gajara Vishnu Gosavi vs. Prakash Nanasahed Kamble & Ors.) the Apex Court has held that undivided share of a coparcener can be subject matter of sell/transfer. Therefore, the question raised by the learned counsel for the appellant that the coparcener cannot transfer is concerned, has got no force in the eye of law. 10. So far the submission of the learned counsel that the sale deed itself is void because consolidation proceeding is going on which has been admitted by the defendant is concerned, it may be mentioned here that it is not the case of the plaintiff that the sale deed is void because consolidation proceeding is going on. He claimed the relief on the allegation of bundle of facts to the effect that the property is joint family property and a coparcener cannot sell undivided property without the consent of the other coparcener. Therefore, the issue which is now being raised before this court being a pure question of fact that cannot be decided in second appellate jurisdiction. Moreover, neither there was any issue in the trial court nor this point was raised before the appellate court nor it was decided before any court. 11. In view of the above facts and circumstances of the case, the points raised by the learned counsel for the appellant are not substantial question of law. Therefore, in my opinion, no substantial question of law is involved in this Second Appeal and, therefore, this Second Appeal is dismissed at the admission stage itself.