For this particular suit, the
following authorities are useful.
1.
Co-sharer has an interest in every part of joint property
Sri
Ram Pasricha v. Jagannath & Ors.
(1976) 4 SCC 184 : AIR 1976 SC 2335
This is one of the leading
authorities for the proposition that a co-owner is, in law, an owner of the
entire property jointly with the other co-owners. Until partition, a particular
physical portion cannot ordinarily be treated as exclusively belonging to one
co-sharer.
This directly supports the Plaintiff's
case that the alleged 1/8th share is an undivided share in the entire suit
property, and not a physically demarcated 1/8th portion.
The Supreme Court has reiterated
this principle in subsequent cases, explaining that a co-owner has an interest
in every part of the composite property until partition.
Application here:
The six Dags comprising the pleaded 36-Satak suit property should be treated as
the subject matter of co-ownership until partition by metes and bounds.
2.
Every co-sharer is entitled to possession of the joint property
P.
Lakshmi Reddy v. L. Lakshmi Reddy
AIR 1957 SC 314
The Supreme Court recognised the
fundamental principle that possession of one co-sharer is ordinarily regarded
as possession on behalf of all co-sharers, unless there is clear and
unequivocal ouster.
This is particularly relevant
because the Plaint alleges that the defendants are attempting to obtain
possession, construct a boundary wall, demarcate the property and deal with
portions of the undivided property.
Proposition to plead:
Mere possession by one co-sharer or
exclusive enjoyment of a portion of joint property does not, by itself,
extinguish the title or possession rights of the other co-sharers.
3.
Sale of undivided share does not confer right to exclusive possession of a
specific portion
Ramdas
v. Sitabai & Ors.
(2009) 7 SCC 444 : JT 2009 (8) SC
224
This is particularly important
for the present suit.
The Supreme Court held that a
purchaser of an undivided share does not become entitled to possession of any specific
portion of the joint property. The purchaser's remedy is to seek partition and
have the purchased share allotted in accordance with law.
The Supreme Court has reiterated
this principle in subsequent proceedings, observing that an undivided share may
be transferred, but possession of a specific portion cannot be handed over
unless the property is partitioned by metes and bounds or the co-sharers
themselves settle the partition.
Application here:
This is highly relevant to the Plaintiff's allegation that the defendants are
attempting to demarcate portions and deliver possession to third parties
without partition.
4. A co-sharer can transfer his undivided share, but
not a specific demarcated portion as against other co-sharers
Kartar
Singh v. Harbans Kaur
(1994) 4 SCC 730
The legal position under Section
44 of the Transfer of Property Act, 1882 is that a co-owner can transfer
his undivided interest, but the transferee steps into the shoes of the
transferor and acquires the transferor's rights subject to the rights of the
other co-sharers.
Therefore, a transfer by one
co-sharer cannot prejudice the rights of the other co-sharers in the undivided
property.
This distinction should be made very
carefully in the present case:
Permissible:
Transfer of the transferor's undivided 1/8th share, subject to law.
Not permissible as against the other
co-sharers:
Treating a particular physically identified portion of the 36-Satak property as
exclusively belonging to one co-sharer and delivering exclusive possession of
that portion to a purchaser before partition.
The Supreme Court's recent
jurisprudence similarly recognises that a purchaser of an undivided share must
work out his rights through partition.
5. Preliminary decree and final decree are separate stages
Shankar
Balwant Lokhande v. Chandrakant Shankar Lokhande
(1995) 3 SCC 413 : AIR 1995 SC 1211
This authority is directly relevant
to the prayer made in your Amended Plaint for:
- preliminary decree declaring the respective shares;
- partition by metes and bounds;
- appointment of Commissioner, if necessary; and
- final decree.
The Supreme Court has explained that
a partition suit ordinarily proceeds through a preliminary decree,
declaring the rights and shares, followed by the final decree, by which
actual partition/separation is effected.
The Supreme Court recently
reiterated this position while explaining Order XX Rule 18 CPC: the
preliminary decree determines the shares and the final decree gives effect to
partition by metes and bounds.
This directly supports the relief
claimed in the Amended Plaint for appointment of a Survey/Advocate Commissioner
and passing of a final decree.
6. Partition suit continues until final decree
Phoolchand
& Anr. v. Gopal Lal
AIR 1967 SC 1470 : (1967) 3 SCR 153
This is an important authority when
dealing with subsequent developments in a partition suit.
The Supreme Court held that a
partition suit does not come to an end merely upon passing of the preliminary
decree. If circumstances subsequently change the shares of the parties—for
example, death of a co-sharer—the Court can pass another preliminary decree
modifying the shares.
The Supreme Court has reaffirmed
this principle.
Application here:
If any of the eight alleged co-sharers dies during pendency of the suit, the
succession to that share may have to be brought on record and the preliminary
decree appropriately adjusted.
7. Court can determine shares even if parties dispute
them
Ganduri
Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.
(2011) 9 SCC 788
The Supreme Court held that in a
partition suit, the Court is required to determine the rights and shares of the
parties and can appropriately modify the preliminary decree where subsequent
legal developments affect those shares.
This is useful if the defendants
dispute the Plaintiff's pleaded 1/8th share.
The Court need not merely accept the
share pleaded by the Plaintiff; it has to determine the legally established
shares of all co-sharers.
8. Mere mutation/record-of-rights does not create
title
This point may become important
because the Parcha/Record-of-Rights is being relied upon.
Suraj
Bhan & Ors. v. Financial Commissioner & Ors.
(2007) 6 SCC 186
The Supreme Court held that mutation
entries are primarily for fiscal purposes and do not themselves create or
extinguish title.
Therefore, if the defendants rely
upon the Parcha/ROR as conclusive proof of title, the Plaintiff can contend
that:
The Record-of-Rights is relevant
evidence of possession/recorded interest, but title and the respective shares
of the parties are ultimately matters for adjudication by the civil court.
This is particularly relevant here
because the Parcha for RS Khatian No. 346 records the property
particulars and the recorded raiyat, while the Amended Plaint relies upon
inheritance and co-sharer rights.
9. Ouster of a co-sharer requires clear evidence
P.
Lakshmi Reddy v. L. Lakshmi Reddy
AIR 1957 SC 314
and
Md.
Mohammad Baqar v. Naim-un-Nisa Bibi
AIR 1956 SC 548
These authorities are important if
the defendants contend:
"The Plaintiff is not in
possession."
The legal position is that
possession of one co-sharer is ordinarily treated as possession of all. To
establish ouster, there must be clear evidence of hostile assertion of
exclusive title and knowledge thereof by the excluded co-sharer.
Thus, mere separate occupation or
possession of a particular portion is not necessarily sufficient to establish
ouster.
10. Strong authority concerning co-owner's possession
Dorab
Cawasji Warden v. Coomi Sorab Warden
(1990) 2 SCC 117
This case is particularly useful for
the injunction aspect of the present suit.
The Supreme Court considered the
principles governing interim protection concerning joint/co-owned property and
recognised that courts may protect a co-owner's rights where the circumstances
justify such protection.
Since your Amended Plaint alleges
that the defendants are attempting to construct a boundary wall and alter the
nature/possession of the undivided property, this authority can be considered
while seeking appropriate interim protection.
11. Most important authority for your specific
allegation of demarcation
Ramdas
v. Sitabai
(2009) 7 SCC 444
I would place this near the top
of the list for your present case.
The principle can be formulated for
the suit as:
Until partition by metes and bounds,
no co-sharer can claim exclusive possession over any particular portion of the
joint property merely on the basis of his undivided share; the rights of the
co-sharers extend over the entire joint property.
That fits closely with the
Plaintiff's allegation that the defendants are attempting to demarcate the
Schedule Property amongst themselves and sell/deliver possession to third
parties without partition.
12. Application of the authorities to Title Suit No.
157/2019
On the present pleadings, I would
structure the legal propositions as follows:
|
Issue
in your suit |
Principle |
Authority |
|
Plaintiff claims 1/8th undivided
share |
Co-sharer owns an undivided
interest in entire property |
Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184 |
|
Joint possession |
Possession of one co-sharer
ordinarily amounts to possession of all |
P. Lakshmi Reddy v. L. Lakshmi
Reddy, AIR 1957 SC 314 |
|
Defendants attempting demarcation |
Specific physical portion cannot
ordinarily be exclusively appropriated before partition |
Ramdas v. Sitabai, (2009) 7 SCC 444 |
|
Proposed sale to third party |
Co-sharer can transfer only his
undivided interest subject to other co-sharers' rights |
Section 44 TPA; Ramdas |
|
Need for preliminary decree |
Court must determine shares |
Shankar Balwant Lokhande, (1995) 3 SCC 413 |
|
Need for final decree |
Actual partition by metes and
bounds follows preliminary decree |
Shankar Balwant Lokhande |
|
Subsequent death/change in shares |
Partition suit continues until
final decree |
Phoolchand v. Gopal Lal, AIR 1967 SC 1470 |
|
Change in legal shares |
Preliminary decree can be modified |
Ganduri Koteshwaramma, (2011) 9 SCC 788 |
|
Parcha/ROR |
Revenue record does not by itself
confer title |
Suraj Bhan, (2007) 6 SCC 186 |
|
Alleged exclusion/ouster |
Ouster must be proved by clear
hostile conduct |
P. Lakshmi Reddy; Md. Mohammad Baqar |
|
Interim protection |
Court can protect co-owner's
rights |
Dorab Cawasji Warden, (1990) 2 SCC 117 |
Particularly
important for the present plaint
Your Amended Plaint itself
specifically alleges that:
- the property is undivided and unpartitioned;
- the Plaintiff has a claimed 1/8th share;
- the property comprises the six specified Dags;
- the total suit property is 36 Satak;
- the defendants are attempting to demarcate the
property;
- the defendants are attempting to sell portions
and deliver possession to third parties; and
- the Plaintiff seeks a preliminary decree, partition
by metes and bounds, Advocate Commissioner and final decree.
Accordingly, Ramdas + Sri Ram
Pasricha + Shankar Balwant Lokhande + P. Lakshmi Reddy form the core line
of authorities I would rely upon.
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