Kamini Baishakha And Others vs Binapani Sahoo And Others
2022 Latest Caselaw 654 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                              RSA No.90 Of 2021
                       (Through video conferencing mode)

        Kamini Baishakha and others            ....            Appellants

                                               Mr. P.R. Barik, Advocate

                                   -versus-

        Binapani Sahoo and others              ....          Respondents


                  CORAM: JUSTICE ARINDAM SINHA
                                   ORDER

Order                             25.01.2022
No.
  1.    1.      Mr. Barik, learned advocate appears on behalf of appellants. He

submits, his client was contesting defendant no.1 in the suit. Plaintiffs

filed the suit for declaration and injunction and alternatively recovery

of possession. The trial Court dismissed the suit mainly on the ground

that the property was not partitioned and therefore it could not have

been sold and the suit property was not identifiable. He submits, the

first reason is a fact and the second, good reason based on rule 3 in

order VII, Code of Civil Procedure.

2. First appellate Court relied on several authorities to find that

section 44 in Transfer of Property Act, 1882 does not bar alienation by

a co-sharer.

// 2 //

3. Court has perused the judgments. It appears that

appellants/contesting defendant no.1 is claiming under Kasinatha, one

of three sons of Bauribandhu. Plaintiffs' case was that Biswanath,

Kasinatha and Dasrathi were three sons of Bauribandhu. Biswanath

relinquished his share and in a family arrangement, suit property was

exclusively allotted to Dasarathi. Dasarathi was entitled to and

alienated suit property. Plaintiffs are the purchasers.

4. As per plaintiffs' case, Dasarathi sold property as opposed to

interest in property. It is clear from the evidence that the

relinquishment, contended to have been made by Biswanath, was not

by a document registered. It appears to be admitted position that there

had been no partition. Admitted position on there being no partition is

because the appellate Court dealt with the alienation by Dasarathi as

alienation of interest in the property.

5. The appeal is admitted on the following substantial question of

law to be answered.

"In joint family property that has not been partitioned, can a part or the whole of it be alienated by a co-sharer?"

6. Appellants will put in requisites for issuance of notice of appeal

to respondents. Let lower Court records be called for.

// 3 //

7. Appellants have liberty to mention for listing the appeal for

hearing on intimation of service of notice of appeal and arrival of

LCR.

(Arindam Sinha) Judge Sks