JUDGMENT The respondent no.1 as the plaintiff filed Title Suit NO. 36 of 1997 against the appellant of RSA No. 317 of 2004 being arraigned as defendant no.2 and predecessor-in-interest of respondent nos. 2 to 4 being the other defendants. He has also filed Title Suit No. 82 of 1993 against the appellant no. 1 arrayed nos. and predecessor-in-interest of appellant 2(a) and 2(b) as well as the appellant nos. 3 to 6 of RSA No. 318 of 2004. 2.In Title Suit No. 36 of 1997, the plaintiff-Bansidhar Barik prayed for declaring the sale deed No. 1051 of 1994 said to have been executed by Haldhar Barik (defendant no. 1) in favour of the Kiran Kumari Brahma, the appellant to be invalid and to have clothed her with no right, title, interest or possession in respect of the suit land. Title Suit No. 82 of 1993 has been filed by said Bansidhar Barik to declare sale deed Nos. 2669,2670,2671,2672 and 2673 dated 4.11.92 executed by Haldhar (defendant no. 1) in favour of the rest of the defendants to be null and void and not binding with other consequential reliefs. The suit has also been decreed in part. So, two appeals came to be filed by the respective unsuccessful defendants challenging the judgment and decree passed in the above two suits in favour of Bansidhar Barik the plaintiff in both the suits. The appeals preferred by the unsuccessful defendants have been dismissed and the third appeal preferred by the plaintiff being aggrieved by part decree in Title Suit No. 82 of 1993 has been allowed granting all the reliefs prayed therein. These three appeals were heard together in view of the similar nature of the suits and involvement of common factual controversy and legal points and have been disposed of as aforesaid by common judgment. There being a common judgment passed in all the appeals, the above noted second appeals have been heard together for their disposal by this judgment which would govern both. 3.Facts necessary for the purpose of these appeals are as under:- Plaintiff-Bansidhar Barik and defendant Haldhar Barik are two brothers and they are governed by Mitakshara School of Hindu Law. The suit land is a piece of undivided house and homestead of the two brothers. 3.Facts necessary for the purpose of these appeals are as under:- Plaintiff-Bansidhar Barik and defendant Haldhar Barik are two brothers and they are governed by Mitakshara School of Hindu Law. The suit land is a piece of undivided house and homestead of the two brothers. It is stated that the said land was purchased by their parents and it was so jointly recorded in their names when both were in occupation. It is stated that the land was purchased by their father and mother and they were in possession of the same when also the record stood as such. A piece of land measuring 3 decimals belonging to the State was in their possession along with the purchased land. After the death of parents, the two sons succeeded to the same and accordingly possessed having equal interest when there was no partition in metes and bounds though the possession was according to convenience. So, it is stated that defendant Haldhar Barik could not have sold land out of that homestead with the standing house by executing sale deeds in favour of other defendants as the land is joint family homestead land as the sales were not with the consent of the plaintiff and that too without partition in the metes and bounds between him and his brother. Thus, the sale deeds are said to be void and in-operative. The contesting defendants assert that the sale deeds are valid and were for legal necessity. It is stated that there was partition and a document to that effect was prepared whose original is with the plaintiff. 4. The Courts below have given a concurrent finding that there has been no partition between the Haldhar and Banshidhar at any point of time. Accordingly, the suits have been decreed, as stated above, holding that the transfer of joint family property by undivided coparcener without the consent of other is void and it is always under the circumstance permissible for the non-alienating coparcener/s to seek a declaration to that effect as its not binding on him in the event of no proof of prior partition. 5.The following substantial question of law is formulated at the time of admission for being answered in this appeal:- “Even assuming that after the death of their parents the plaintiff and defendant no. 5.The following substantial question of law is formulated at the time of admission for being answered in this appeal:- “Even assuming that after the death of their parents the plaintiff and defendant no. 1 constituted one joint family, if the plaintiff's admission in the plaint that in 1992, there was talk of complete partition, a draft partition deed was prepared which of course did not take final shape and that defendant no. 1 took Rs. 80,000/- form the plaintiff on the condition of transferring any part of the suit property amounts to severance of status enabling the parties to alienate their respective shares.” 6.Learned counsel for the appellant submits that Haldhar and Banshidhar are not having the right over the suit property as coparceners and their possession is that of co-sharers. So, in that event, he contends that the Courts below have completely proceeded in an wrong path by keeping in mind and holding them as coparceners and thereby have erroneously arrived at a conclusion that Haldhar has no right to transfer his undivided share without other’s consent. In this connection, he placed reliance upon the decision of the Apex Court in case of Ramdas Vrs. Sita Bai and others; AIR 2009 SC 2735 , Bharat Lal Pandy Vrs. Ramji Prasad Yadav; 2009 (2) CLR (SC) 725 and in case of Manoj Kumar Nayak and Another Vrs. Gunna Mohanty and Others; 116 (2013) CLT 209. Learned counsel for the respondents on the other hand submits in support of the findings rendered by the Courts below. According to him, the property inherited by Hindu male/s from father is ancestral property is his/their hand and therefore, there has to be a finding that n the hands of Haldhar and Bansidhar, the property remains as ancestral property. So, the sale by one in respect of specific property has been rightly held to be void. 7.Learned counsel for the appellant in course of his submission has not been able to point out any material that the Courts below in arriving at above conclusion of no proof of partition have not considered any material evidence which if would have been taken into consideration, the finding would have been in favour of partition . 7.Learned counsel for the appellant in course of his submission has not been able to point out any material that the Courts below in arriving at above conclusion of no proof of partition have not considered any material evidence which if would have been taken into consideration, the finding would have been in favour of partition . Even on bare reading of the judgment, it is seen that the defendants have failed to adduce any such acceptable evidence as regards the partition in between the Haldhar and Bansidhar in metes and bounds, barring the self serving recital in the sale-deeds which cannot be taken neither as a clinching evidence not conclusive proof establishing a case for partition. 8.The very case of the plaintiff is that the suit property was the acquired properties of Chandramani Barik, the mother of the plaintiff and defendant no. 1 and that of Jagannath, their father. It is also the case of the plaintiff that both the brothers succeeded to the property after death of their parents. No doubt the nature of the suit land is homestead and its said that the house stands thereon. It is, further stated that the said suit land was not partitioned. The case of the defendant is that there had been partition in metes and bounds and the sale has been made by Haldhara in respect of the land in his possession. He has placed reliance on the following decisions:- (i) Sri Gopinath Deband and others-vs.-Jagannath Baral and others: AIR 1969 Orissa 18. (ii) Jagannath Sahu-vs. Golapi Barik: AIR 1985 Orissa 288. (iii) Karunakar Rout @ Thatei –vs- Golak Behari Biswal and another: AIR 1995 Orissa 110. 9.So, now the question boils down to the extent as to whether the sales would be void or would be valid to the extent of the share of the vendor chronogically which though would not clothe the purchasers with title in respect of the specific property as described in the sale deeds but would remain valid to the extent and within the share of vendor and alive for consideration accordingly in the event of future partition springing up at that time with due equitable consideration in case of purchaser remaining in possession. The crucial point stands for being answered is as to whether the suit property is the coparcenery property in the hands of Haldhar and Bashidhar and they ae coparceners qua the said property or they are co-sharers. The property being the self-acquired of the parents of the Haldhar and Bashidhar, they cannot be said to be having any right over the same by virtue of their birth. They have succeeded to the property being the sons as Class-I heirs as provided in the schedule of the Hindu Succession Act. Thus, there being no partition between them, they remained as co-sharers, each having half share over the same. In that view of the matter although by such sales, by Haladhara, one of the two co-sharers, the purchasers cannot be said to have acquired valid title over the particular land as described in the sale-deeds and in that way cannot bind the non-alienating co-sharer nonetheless, it has to be said that they by such alienation have acquired interest over the undivided interest of their vendor over the property to the extent and within the share of Haladhar. The sales would accordingly come to be fed in chronological order and in the event the extent exceeds the share of the vendor, to that extent it would be void. However, the exact allotment would be only in the event of partition between the co-sharers from out of the share of the alienating co-sharer as above stated. 10.The decision cited on behalf of appellant in case of Ramdas (supra) lays down the following position of law:- “A purchaser cannot have a better title than what vender had. 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. XX XXXXXXXXXXXXXX The land in question being extremely valuable the question of equity does not arise as it would amount to doing injustice to one having title and ownership. “ It may be stated here that the property in the cited case was of one Sukha who died leaving behind her legal heirs namely Sita Bai and Sudam. XX XXXXXXXXXXXXXX The land in question being extremely valuable the question of equity does not arise as it would amount to doing injustice to one having title and ownership. “ It may be stated here that the property in the cited case was of one Sukha who died leaving behind her legal heirs namely Sita Bai and Sudam. The challenge to the sale was that the sale deed executed by Sudam to one Ramdas was void as it was not with the consent of Sita Bai and without her knowledge. In order cited case of Gajara (supra), the principle laid down is that in case of sale/transfer of undivided share in the joint family property, possession cannot be handed over to the vendee unless the property is partitioned in metes and bounds. Sale by one brother co-sharer in respect of his undivided share is permissible and though he cannot be put to possession unless the property is partitioned in metes and bounds. So ratio of these decisions fully support the contention of the learned counsel for the appellant. The Courts below have failed to take note of these and thus appears to have begun to examine the matter in the touch stone of an erroneous view point of law. However, having carefully gone though the decisions cited on behalf of respondents, I find that all those cases are concerned with ancestral property in the hands of the coparceners of Hindu undivided joint family governed by Mitakshara School of Hindu Law and thus the foundational facts being quite distinguishable, those decisions do not come to the aid of the contention of the learned counsel for the respondents in his attempt to tide over the situation in defending the judgments and decrees of the Courts below as passed. For the aforesaid discussion and reason, the judgments and decrees as passed by the Courts below declaring the sale-deeds to be void are held unsustainable. The substantial question of law formulated are accordingly answered. 11.In view of aforesaid discussion, the appeals stand allowed and the judgment and decree passed by the trial Court in T.S. No. 36 of 1997 and 82 of 1993 as confirmed by the lower appellate Court are hereby set aside. The plaintiffs suits as framed for the reliefs claimed are liable to be dismissed. 11.In view of aforesaid discussion, the appeals stand allowed and the judgment and decree passed by the trial Court in T.S. No. 36 of 1997 and 82 of 1993 as confirmed by the lower appellate Court are hereby set aside. The plaintiffs suits as framed for the reliefs claimed are liable to be dismissed. In the peculiar facts and circumstances of these case, the parties shall bear the respective costs of litigation all throughout. Appeals allowed.