VERDICTUM.

IN

2024 INSC 676 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SK. GOLAM LALCHAND …APPELLANT(S)

VERSUS

NANDU LAL SHAW @ NAND LAL

JUDGMENT

PANKAJ MITHAL, J.

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.

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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 plaintiff-

respondent 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

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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.

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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

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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

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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 defendant-

appellant 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.

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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

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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

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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 defendant-

appellant 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

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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 defendant-

appellant 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.

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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.

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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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