Source: Supreme Court 

Why in News? 

A bench of Justice Sudhanshu Dhulia and Justice Pankaj Mithal held that a co-owner is not competent to transfer the entire property without getting his share determined and demarcated so as to bind the other co-owners.                       

• The Supreme Court held this in the case of SK Golam Lalchand v. Nnadu Lal Shaw @ Nandu Lal Keshari @ Nandu Lal Bayes & Ors. 

What is the Background of SK Golam Lalchand v. Nandu Lal Shaw @ Nandu Lal Keshari @ Nandu Lal Bayes & Ors. Case? 

• The suit property was purchased by two brothers namely, late Sita Ram and late Salik Ram in 1959 from one Sahdori Dasi. 
• Both of them had equal rights in the property. 
• It is alleged that one of the two 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. 
• Late Sita Ram died intestate leaving behind his son Brij Mohan. Consequently, a sale deed was executed by Brij Mohan in favour of his tenants,  
• It is the case of the plaintiff that gift deed alleged above has not been executed. 
• Therefore, it is the case of the plaintiff that Brij Mohan had no right to transfer the whole of property in favour of one of the tenants.  
• Thus, a suit was filed by the Plaintiff for declaration and permanent injunction. 
•  This suit was dismissed by the Court of first instance but in appeal the decree was reversed holding that there was no partition of property. 
• This judgment was affirmed by the High Court in Second Appeal. 
• Thus, an appeal was preferred in the Supreme Court.  

What were the Court’s Observations? 

• The Court held that there is no controversy on the fact that the property was equally owned by Late Salik Ram and Late Sita Ram and the property had always remained joint and undivided between the co-owners. 
• The Court further observed that it could not be proved in the Court clearly that the gift deed was executed in favour of Late Sita Ram. 
• Thus, it was held that Brij Mohan was not competent alone to execute the sale of entire property that too without it’s partition by metes and bounds. 
• It was further observed that the sale deed may be a valid document in accordance with Section 44 of the Transfer of Property Act, 1882 1(TPA) to the extent of the share of Brij Mohan in the property. 
• Accordingly, the Court answered the issue as follows: 
  • Brij Mohan alone was not competent to transfer the entire property without getting his share determined and demarcated so as to bind other co-owners. 
  • Accordingly, the defendant was restrained by the decree of injunction in acting in derogation of the propriety rights of co-owners until and unless the partition takes place.

What is the Law on Transfer by and to the Co-Owners? 

Why are the Judgments on Transfer of Property by Co-Owners? 

• Durgapada Pai v. Debidas Mukherjee (1973) 
  • The Court held that a dwelling house connotes to some extent a permanent abode of the undivided family where such family resides or intends to reside generally and not a house for stray short or temporary residence for specified purpose. 
• Dorab Cawasji Warden v. Coomi Sarob Warden (1990) 
  • The Supreme Court restrained a suit for partition filed by the buyer of an undivided share because the circumstances showed that irreparable damage would have been caused to the family if an outsider found entry into the house. 
• Sri Ram v. Ram Kishan (2010) 
  • The Court held that, when any member of a joint family sells his portion of the family property which has not been marked out by partition or otherwise, the purchaser can file a suit for partition and delivery of possession of the portion to which the selling member is entitled.