JUDGMENT : Anubha Rawat Choudhary, J. Heard the learned counsels appearing on behalf of the parties. 2. This second appeal has been filed against the judgment and decree dated 19.02.2004 (decree signed on 28.02.2004) passed in Title Appeal No. 23 of 1995 by learned Addl. District and Sessions Judge, Fast Track Court No. I, Gumla whereby the learned 1 st appellate court reversed the judgment and decree dated 22.02.1995 (decree signed on 06.03.1995) passed by learned Sub-Judge-III, Gumla in Title Suit No. 41 of 1990. 3. This appeal was admitted for final hearing vide order dated 18.05.2006 on the following substantial questions of law: “(a) Whether the plaintiff has got any locus standi to file the suit? (b) Whether the suit for declaration of the sale deed dated 29.06.1990 as illegal is maintainable in absence of prayer for partition of the joint estate of common ancestor Gokul Kumhar and recovery of possession from Chandrika Singh?” 4. While addressing the 1 st substantial question of law , the learned counsel for the respondent nos. 1 and 2 has submitted that the original plaintiff was the co-sharer of the suit property and the previous partition with respect to the joint family property was not proved and therefore, it cannot be said that the plaintiff did not have the locus to file the suit. 5. Learned counsel for the appellants does not dispute this fact that the original plaintiff was the co-sharer of the suit property as per the findings recorded by the learned courts and he has fairly submitted that under such circumstances, it cannot be said that the original plaintiff did not have the locus standi to file the suit as a portion of the entire property was sold by the defendant no. 1 – the co-sharer. 6. In view of the aforesaid submissions the original plaintiff claiming to be the co-sharer of the property had the locus standi to file the suit. The 1 st substantial question of law is accordingly answered. 7. With respect to the 2 nd substantial question of law , the learned counsel for the appellants has submitted that the property admittedly belonged to the common ancestor namely, Gokul Kumhar and the subject matter of the suit was challenge to sale-deed dated 29.06.1990 executed by one of the co-sharers of the property. The learned counsel has also submitted that the appellant no. The learned counsel has also submitted that the appellant no. 1 herein is the purchaser of the property and the appellant no. 2 is the wife of appellant no. 1 and was defendant no. 5 in the suit and is also a co-owner of the suit property. 8. The learned counsel further submitted that the defendant no. 1 was also a co-owner of the suit property and in view of section 44 of Transfer of Property Act, the sale by the defendant no. 1 in favour of defendant no. 2 cannot be said to be void ab initio, rather the purchaser of the suit property has a right to seek partition and get share of the vendor earmarked and even the original plaintiff who had challenged the sale-deed dated 29.06.1990 could have claimed partition and if any portion was sold in excess of the share of the vendor of the defendant no. 2, this aspect of the matter also could have been taken care of in the partition suit. He has submitted that the learned 1 st appellate court while reversing the judgment of the learned trial court has declared the sale- deed no. 1817 dated 29.06.1990 as null and void and such finding is contrary to law and in disregard to the provision of section 44 of Transfer of Property Act. 9. Learned counsel for the respondent nos. 1 and 2 (plaintiff), while opposing the prayer, has submitted that two sale-deeds were executed by the defendant no. 1; one was sale-deed no. 1817 dated 29.06.1990 whereby 0.17 acres of land was sold out of total area of 0.28 acres in favour of the defendant no.2 and other was exhibit no. A/1 whereby further 0.05 acres was sold to one Baraik Abhay Kumar Singh on 13.08.1990. Thus, the defendant no. 1 sold 0.22 acres out of the suit land although as per the finding recorded by the learned 1 st appellate court, the defendant no. 1 could have sold her share only to the extent of 0.09 acres. The learned counsel has submitted that a vendor, even if co-owner of the property, cannot transfer more than his share and therefore, the sale-deed involved in the present case was illegal and not sustainable. 10. Learned counsel for the respondent nos. 1 and 2 has also submitted that it was the specific case of the vendor Gayatri Kumari i.e., defendant no. 10. Learned counsel for the respondent nos. 1 and 2 has also submitted that it was the specific case of the vendor Gayatri Kumari i.e., defendant no. 1 that she is an illiterate lady and she had not executed the sale-deed and the sale-deed was forged and fabricated. 11. In response, the learned counsel for the appellants has submitted that in absence of any partition suit, the actual share of one or the other co-sharer cannot be earmarked. The learned counsel has submitted that since the suit was not seeking partition of the property and the claim of previous partition was disbelieved by the court, therefore, the legality and validity of the sale-deed and the extent to which the purchaser would get the property by virtue of the sale-deed can be decided only when there is partition by metes and bounds. Findings of this Court 12. After hearing the learned counsels appearing on behalf of the parties, this Court finds that Title Suit No. 41 of 1990 was filed by Rameshwar Kumhar seeking declaration that the sale-deed bearing no. 1817 dated 29.06.1990 executed by defendant no. 1 Gayatri Kumari was illegal and void document on the basis of which the defendant no. 2 could not acquire any title over the suit land. 13. The specific case of the original plaintiff was that the suit land comprising of Khata No. 25 Plot No. 352/353 total area 28 decimals was originally purchased by one Gokul Kumhar in the year 1925 and Gokul Kumhar had two sons namely, Bhugtu Kumhar and Dublu Kumhar; Bhugtu Kumhar had 5 daughters and one son. Out of the five daughters, three daughters had died. However, Guari Devi and Mangri Devi were alive. It was the case of the original plaintiff that Gauri Devi was living with defendant no. 2 Chandrika Singh. Bhugtu Kumhar had a son namely Muneshwar Mahto who had one daughter namely Gayatri Kumari – defendant no. 1. Dublu Kumhar had two sons - Rameshwar Mahto (plaintiff) and Bhuneshwar Mahto. Bhuneshwar Mahto died leaving behind Lalkeshwar Mahto and Biswanath Mahto (defendant nos. 3 and 4 respectively) and Gauri Devi and Mangri Devi were defendant nos. 5 and 6 respectively. It was their further case that the property was in joint family ancestral property. 14. As per the further case of the original plaintiff, the defendant no. Bhuneshwar Mahto died leaving behind Lalkeshwar Mahto and Biswanath Mahto (defendant nos. 3 and 4 respectively) and Gauri Devi and Mangri Devi were defendant nos. 5 and 6 respectively. It was their further case that the property was in joint family ancestral property. 14. As per the further case of the original plaintiff, the defendant no. 1 executed a deed of sale in favour of defendant no. 2 with respect to the suit land at the instigation of defendant no. 2 for Rs. 3000/- as sale deed no. 1817 dated 29.06.1990 which was not enforceable and binding upon the original plaintiff. It was asserted that neither the defendant no. 1 nor the defendant no. 2 had any right, title, interest and possession over the suit land and it was asserted that the sale-deed was null and void. 15. Defendant nos. 2, 5 and 6 filed a written statement opposing the suit and inter alia raising a plea that the suit property was not in jointness rather, there has been a previous partition and a memorandum of partition was also prepared in the year 1956 and the suit property belonged to the father of defendant nos. 5 and 6 Bhugtu Kumhar who died sometimes in the year 1957 and the suit property was inherited by his daughters and son Muneshwar Mahto. It was their further case that male issue of Muneshwar Mahto died and his daughter Gayatri Kumari inherited the suit property being a rightful owner. It was their further case that the defendant no. 1 was the owner of the property and had rightly sold the property through registered deed to defendant no. 2 in which he has constructed a house and is residing with his family. It was also their case that full consideration amount was duly paid. 16. So far as the defendant no. 1 is concerned, she supported the plaintiff and alleged that the sale-deed was executed fraudulently. The learned trial court framed the following issues for consideration: “1. Is the suit as framed maintainable? 2. Has the plaintiff got cause of action for the suit? 3.Is the suit bad for non-joinder of Baraik Abhai Singh? 4.Had there been partition in between Baglu Kumhar and Dablu Kumhar and the suit land allotted to Bhaglu Kumhar as alleged? 5.Is the sale deed bearing no. 1817 dated 29.6.90 executed by Gayatri Devi in favour of defendant no. 2. Has the plaintiff got cause of action for the suit? 3.Is the suit bad for non-joinder of Baraik Abhai Singh? 4.Had there been partition in between Baglu Kumhar and Dablu Kumhar and the suit land allotted to Bhaglu Kumhar as alleged? 5.Is the sale deed bearing no. 1817 dated 29.6.90 executed by Gayatri Devi in favour of defendant no. 2 legal valid and binding on the plaintiff or the same is a result of fraud as alleged? 6.To what relief or reliefs is the plaintiff is entitled to get?” 17. Issue no. 4 was relating to previous partition and the issue no. 5 was relating to legality and validity of the sale-deed no. 1817 dated 29.06.1990. 18. The learned trial court, after considering the materials on record, rejected the plea of previous partition between Bhugtu Kumhar and Dublu Kumhar in the year 1956 based on the deed of partition dated 25.02.1956 (exhibit- C) by holding that it was not a reliable document. However, the learned trial court, further considered the materials on record, took into consideration another sale deed executed by Gayatri Devi who had transferred 5 decimals of land vide exhibit A/1 dated 13.08.1990 and held in paragraph 10 that the defendant nos. 2, 5 and 6 have succeeded in proving partition. Paragraph 10 of the trial court’s judgement is quoted as under:- “10. Besides the aforesaid fact Gayatri Devi had also executed a sale deed and transferred 5 decimals of Abhai Singh vide sale deed ext. A/1. Had there been jointness in the family then the present plaintiff ought to have file suit land against Abhai Singh also for setting aside the sale deed in his favour dated 13.08.90. As such I find and hold that the defendant no. 2 and 5 and 6 have succeeded in proving partition as alleged.” 19. The learned trial court ultimately held that the sale-deed was legal and valid document and binding upon the defendant no. 1 and accordingly, both the issue nos. 4 and 5 were decided in favour of defendant nos. 2, 5 and 6. 20. So far as the learned 1 st appellate court is concerned, it framed the following points for determination at paragraph 6 which are as under: (1) Was there partition in between Bhuglu Kumhar and Dublu Kumhar in the year 1956? 4 and 5 were decided in favour of defendant nos. 2, 5 and 6. 20. So far as the learned 1 st appellate court is concerned, it framed the following points for determination at paragraph 6 which are as under: (1) Was there partition in between Bhuglu Kumhar and Dublu Kumhar in the year 1956? (2) Has Gayitri Devi sold her share to Chandrika Singh (defendant no.-2) within her right to do so? 21. The learned 1 st appellate court considered both the points for determination together and ultimately held that the defendants failed to prove partition in the family of the common ancestor Gokul Kumhar. The finding of the learned trial court with regard to previous partition was reversed by the learned 1 st appellate court and the finding of the learned 1 st appellate court has become final as no substantial question of law has been framed in that regard. 22. However, the learned 1 st appellate court further proceeded to decide the legality and validity of the sale-deed no. 1817 of 1990 dated 29.06.1990 and observed that 0.17 acres towards the east of the property was sold by this sale-deed and further observed that even if the partition deed is presumed to be genuine, then there was only 0.28 acres of suit land and Mangri Devi, Gayatri Kumari (defendant no.1) and Gauri Devi were the legal heirs of Bhugtu Kumhar, so Gayatri Kumari had only 0.09 acres of land. The learned 1 st appellate court also recorded that neither Mangri Devi nor Gauri Devi were examined and further observed that from perusal of exhibit-A/1, it found that 0.05 acres of land out of 0.34 acres in plot no. 353 was sold by Gayatri Kumari(defendant no.1) to Baraik Abhay Kumar Singh on 13.08.1990 just after about 2 months after the deed was executed by Gayatri Kumari (defendant no.1) in favour of Chandrika Singh- the defendant no. 2. The learned court also observed that by virtue of exhibit-A and A/1, it appeared that Gayatri Kumari (defendant no.1) sold 0.22 acres out of the suit land, but she had only 0.09 acres in her name. The learned 1 st appellate court ultimately declared the sale-deed no. 1817 dated 29.06.1990 as null and void. 2. The learned court also observed that by virtue of exhibit-A and A/1, it appeared that Gayatri Kumari (defendant no.1) sold 0.22 acres out of the suit land, but she had only 0.09 acres in her name. The learned 1 st appellate court ultimately declared the sale-deed no. 1817 dated 29.06.1990 as null and void. The court held that Gayatri Kumari (defendant no.1) had no right to execute the sale deed regarding the suit land without consent of other co-sharers in any ones favour. Accordingly, the learned 1 st appellate court set-aside the judgment and decree of the learned trial court. 23. This Court finds that the learned 1 st appellate court declared the sale-deed no. 1817 dated 29.06.1990 as null and void on the ground that the property of Gokul Kumhar was joint and Gayatri Kumari was only one of the co-sharers of the property and she could not have sold the suit property without the consent of other co-sharers in favour of one or the other person. The plea regarding previous partition was rejected by the learned 1 st appellate Court. In this background, the 2 nd substantial question of law is to be seen in the light of section 44 of the Transfer of Property Act, 1882 which is quoted as under: “ Transfer by one co-owner.- Where one of two or more co- owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” 24. In view of the findings recorded by the learned 1 st appellate Court, there can be no doubt that the Gayatri Kumari- the defendant no. In view of the findings recorded by the learned 1 st appellate Court, there can be no doubt that the Gayatri Kumari- the defendant no. 1 i.e., the vendor was a co-sharer of the property and the original plaintiff, being co-sharer of the property challenged the sale-deed dated 29.06.1990, but did not make any prayer for partition of the suit property although claimed that the suit property belonged to Gokul Kumhar – the common ancestor. Admittedly, the defendant no. 2 – purchaser of undivided portion of the suit property never filed any suit seeking partition and for recovery of possession. 25. This Court is of the considered view that once a co-owner of the property executes a sale-deed, it cannot be said to be null and void. The sale-deed would certainly be valid to the extent the vendor, being the co-owner had the share in the property. 26. This Court is also of the view that in absence of any prayer for partition and in absence of any suit seeking partition of the joint family property by metes and bounds, the exact share of one or the other co- owner of the property cannot be ascertained. In such circumstances, the sale-deed executed by the defendant no. 1 in favour of defendant no. 2 will certainly be subject to any partition suit or partition amongst the descendants of the common ancestor namely, Gokul Kumhar and the sale-deed could not have been declared to be null and void by the learned 1 st appellate Court merely on the ground that the property being joint, the defendant no. 1 had no right to execute the sale-deed regarding the suit land without the consent of the other co-owners and that the defendant no. 1 had sold property more than her share. 27. The 2 nd substantial question of law is accordingly answered by holding that the suit for declaration of the sale deed dated 29.06.1990 as illegal was not maintainable in absence of prayer for partition of the joint estate of common ancestor Gokul Kumhar and recovery of possession from Chandrika Singh-the defendant no. 2. 28. 27. The 2 nd substantial question of law is accordingly answered by holding that the suit for declaration of the sale deed dated 29.06.1990 as illegal was not maintainable in absence of prayer for partition of the joint estate of common ancestor Gokul Kumhar and recovery of possession from Chandrika Singh-the defendant no. 2. 28. Consequently, the finding of the learned 1 st appellate Court that sale-deed dated 29.06.1990 was itself null and void is accordingly set-aside with a clear observation that the right, title and interest of Chandrika Singh arising out of the sale-deed would essentially depend upon the partition of the joint estate of common ancestor Gokul Kumhar by metes and bound and the share to be allocated to defendant no.1. 29. This 2 nd appeal is accordingly disposed of. 30. Pending interlocutory application, if any, is closed.