Srimati Sethy and others versus Competent Authority & Land Acquisition Officer, NH-6(49), Keonjhar (Orissa High Court)
| COURT: | Orissa High Court |
| JUDGES: | DR. JUSTICE S.K. PANIGRAHI |
| LEGISLATION(S): | Section 22 of the Orissa Land Reforms Act |
| COUNSEL: | Dayananda Mohapatra, Jyotsnamayee Sahoo |
| FILE: | Click here to download the file in pdf format |
| In the absence of a legal partition of the joint and unpartitioned property, the transferors of the sale deeds cannot transfer any defined portion of joint property nor can the purchaser take possession of such specific land. At best, the purchaser steps into the shoes of the transferor and may seek partition, but cannot claim possession simpliciter. The law is equally clear that no one can transfer a better title than they possess. Therefore, any sale deed purporting to convey specific demarcated land from within unpartitioned coparcenary property is legally void to the extent it exceeds the seller’s undivided share, and is not merely voidable. | |
(i) In the case of Joint Hindu Family property, a specific piece of land could not be alienated by a coparcener or co-sharer without partition, and at the most, the petitioners could only claim a share in the property, not any specific portion of the land. The relevant excerpt is produced hereinbelow:
“Although a coparcener or co-sharer can alienate to the extent of his share but he cannot alienate any specific piece of land. Therefore, at the most the petitioners can be said to have purchased a share of coparceners/Co-sharer still they are not entitled for any specific piece of land.”
(ii) When there exist various co-owners in the property, then the subsequent purchaser of the suit property cannot acquire right, title and interest in the whole of the suit property solely based on the sale deed executed by one co-owner/transferor. The transferors who are the brothers and other relatives of the petitioners was only entitled to share his part in the suit property and not the entire suit property with the appellant. Therefore, the appellant could not claim ownership over the entire suit property but only to the extent of the share held by the transferor.
(iii) It is thus settled that an undivided share in a joint family property cannot be sold off by one of the co-sharers without there being any partition by metes and bounds. Even if there is an assertion that an oral partition took place, the value of the property involved in the partition being more than hundred rupees, such oral partition is not permissible. Registration of such partition was also required. If the partition has not been proved by independent and competent witnesses before the court of law, such partition could not be said to have taken place at all.
Legal guidelines for regulating the alienation of undivided property by members of the Scheduled Castes or Scheduled Tribes under Section 22 of the Orissa Land Reforms Act
Based on the legal principles derived from statutory provisions and established Supreme Court jurisprudence on co-parcenary rights, the following legal guidelines may be framed for regulating the alienation of undivided property by members of the Scheduled Castes or Scheduled Tribes:
(i) A Scheduled Caste or Scheduled Tribe co-parcener cannot legally transfer or alienate any specific portion of joint co parcenary property in the absence of a formal partition among all the co-parcenors, either through mutual agreement reduced to writing and registered, or by a decree of a competent civil court.
(ii) In case such partition cannot be effectuated, any proposed alienation of a specific property of an undivided share by an SC/ST co-parcener shall be preceded by the express, informed consent of all other co-parceners belonging to the SC/ST community. The transferor must establish that all interested co parceners have agreed to such sale.
(iii) Where the transferee does not belong to a Scheduled Caste or Scheduled Tribe, the sale of land by an SC/ST co-parcener shall be permissible only with the prior permission of the competent revenue authority, and only after verifying:
a). That the transferor has a defined and partitioned share in the property;
b). If not, the transferor has obtained express consent of the other co-parcenors of the specified cumulative property.
c). That the transfer does not affect the livelihood, dwelling rights, or subsistence of any other SC/ST co-parcener;
d). That the transaction is not in circumvention of Section 22 or any other protective legislation.
(iv) Revenue authorities shall not grant permission for alienation unless:
a). The title of the transferor over the portion proposed to be transferred is clearly demarcated and partitioned;
b). All co-parceners’ rights have been adjudicated or acknowledged through a registered partition deed or a civil court decree;
c). Independent inquiry has been conducted to rule out any suppression of material facts or manipulation of records.
(v) No mutation in favour of the transferee (particularly a non SC/ST transferee) shall be effected in revenue records unless the transferor produces proof of lawful partition and/or consent of other SC/ST co-parceners, or a declaratory decree recognizing his exclusive title.
(vi) Any sale or alienation of joint property in violation of the above principles shall be deemed void ab initio and not merely voidable. The burden shall lie on the transferee to prove that the transaction complied with all legal requirements and protected the interests of other SC/ST co-parceners.
(vii) Where any sale is found to have been made in breach of these guidelines, the competent authority may suo moto initiate cancellation proceedings under the Orissa Land Reforms Act or other relevant laws, and take steps to restore possession to the rightful SC/ST co-parceners.