Orissa High Court
Damodar Mishra vs State Of Odisha & Others ........... ... on 3 April, 2025
ORISSA HIGH COURT : CUTTACK
WP(C) No.4340 of 2025
An application under Articles 226 & 227 of the Constitution of
India.
***
Damodar Mishra ............. Petitioner
-VERSUS-
State of Odisha & Others ........... Opposite Parties
Counsel appeared for the parties:
For the Petitioner : Mr.Karunakar Rath,Advocate.
For the Opposite Parties : Mr. G.Mohanty, SC
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Date of Hearing: 18.03.2025 :: Date of Judgment : 03.04.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.--
1. This writ petition under Articles 226 and 227 of the
Constitution of the India, 1950 has been filed by the petitioner
praying for quashing the letter No.5554 dated 25.10.2024 of the
Collector, Cuttack and to direct the Opposite Parties to execute
and register the sale deed of the petitioner concerning the
transfer of his shares in Plot No.1932, 1933 and 1934 under
Khata No.435/143 and 435/203 in Mouja Cuttack Town under
Unit No.14.
2. The case of the petitioner in this writ petition is that, he
(petitioner) being an old man, in order to meet his self-medical
treatments, he (petitioner) decided to sell his shares in Plot
Nos.1932, 1933 and 1934 and gave proposal for sale of the same
to one Karunakar Rath for consideration amount of
Rs.40,00,000/- (Forty Lakh Rupees only), to which, Karunakar
Rath accepted and agreed to purchase.
Accordingly, the petitioner executed the deed for selling his
shares in the above three Plots in favour of his vendee Karunakar
Rath and applied for slot booking for registration of that sale deed
before Sub-registrar, Cuttack (O.P. No.3), but, the slot for
registration could not be booked through oral expressions made
by the sub-Registrar, Cuttack (O.P. No.3) that, the Plot Nos.1932,
1933 and 1934 are the joint properties of the petitioner (vendor)
and his other co-sharers and when, the petitioner is interested
only to sell his shares in the said three plots covered in that sale
deed, (those have not been partitioned/divided between the
petitioner and his co-sharers till yet through any metes and
bounds partition), then, due to the restrictions imposed by the
Collector, Cuttack in its letter No.5554 dated 25.10.2024, he
(petitioner) cannot transfer his shares through sale deed in the
Plot Nos.1932, 1933 and 1934 under Khata No.435/143 and
435/203 in Mouja Cuttack Town under Unit No.14 in favour of
Karunakar Rath, for which, the deed of sale executed by him
(petitioner) in order to transfer his sharers in Plot Nos.1932, 1933
and 1934 cannot be registered before him (O.P. No.3)
For which, without getting any way, the petitioner filed this
writ petition against the Opposite Parties including O.P. No.3
praying for quashing the letter No.5554 dated 25.10.2024 of the
Collector, Cuttack and to direct the O.P. No.3 to register the sale
deed for transferring his shares in Plot Nos.1932, 1933 and 1934
under Khata No.435/143 and 435/203 in Mouja Cuttack Town
under Unit No.14 in favour of Karunakar Rath, even though, the
said plots are the joint and undivided properties of the petitioner
and his co-sharers. Because, the petitioner has his shares in the
said plots, for which, he (petitioner) is legally entitled to
alienate/transfer his shares in the said plot Nos.1932, 1933 and
1934 in favour of his vendee Karunakar Rath.
3. I have already heard from the learned counsel for the
petitioner and learned Standing Counsel for the State on behalf of
the Opposite Parties.
4. Section 44 of the Transfer of the Property Act, 1882 does not
prohibit any co-owner for alienation of his/her undivided interest
in the joint properties.
On this aspect, the propositions of law has already been
clarified in the ratio of the following decisions:-
(i) In a case between Dilip Kumar Sahoo Vrs. Smt. Malati
Rout & Others reported in 2013 (Supp.1) OLR 410 that,
neither Section 4 of the Partition Act nor Section 44 of the
Transfer of Property Act prohibits the sale of undivided interest
by a co-owner. However, where, the sale is in respect of the
dwelling house belonging to undivided family, the purchaser
cannot claim separate possession.
(ii) In a case between Ganapath Sahu & Another Vrs.
Smt. Bulli Sahu & Others reported in AIR 1974 Orissa 192 at
Para No.10 that,
transfer of property through a sale deed more than the
transferor's interest in lands jointly held with others shall not
make the sale deed invalid in toto. It would be valid and operative
to the extent of the transferor's interest in the sold lands.
(iii) In a case between Gorakh Nath Dube Vrs. Hari
Narain Singh and others reported in AIR 1973 (S.C.) 2451
that,
an alienation made in excess of power to transfer would be to
the extent of the excess of power is invalid.
(iv) In a case between Ashok Kapoor Vrs. Murtu Devi
reported in 2018 (Supp.) Civ.C.C. 749 (Himanchal Pradesh)
that,
a joint owner/co-owner, just as an individual owner, has an
inherent right to alienate the joint property, limited to the extent
and the nature of his share holding. Upon transfer of his share or
a part thereof, a co-sharer transfer only such rights as vest in
him as a joint owner, namely, his specified share or a part thereof
in the community of joint owners with commonality of
possession.
(v) In a case between Gurdeep Singh & Others Vrs.
Kulwant Singh & Others reported in 2018(1) Civ.C.C. 546
(Punjab & Haryana) that,
sale of specific portion of land would amount to sale of only a
share in the joint land. As vendors were not in exclusive
possession of any portion of the joint land, they could not deliver
possession of any such portion.
(vi) In a case between Sudam Das Vrs. Krushna
Mahakur reported in JBR Vol-XVII (1982) Part-II Page 43
that,
when one of the co-sharer sells his share, the purchaser will
become the co-sharer in place of the seller. If he wants to record
some particular plot of land in his name, he has to make
partition suit to the court or persuade the other co-sharers to
distribute the land among themselves.
(vii) In a case between Gopinath Sahu & Others Vrs. State
of Orissa & Others reported in 2020 (2) OLR 559 that,
statutory provision cannot be overridden by the executive
instructions. In case of conflict, the statutory provision shall
prevail the order/instruction, which is ultravires, cannot sustain
in the eye of law.
(viii) In a case between Commissioner of Central Excise,
Jajpur-II Vrs. M/s.Super Synotex (India) Ltd. & Others
reported in 2014 (1) CCC 118 (S.C.) that, circulars contrary to
legislative intent are invalid.
(ix) In a case between Radhashyam Panigrahi Vrs.
Registrar (Admn.), Orissa High Court & Another reported in
107 (2009) CLT 673 that, Executive instructions do not apply
where statutory rules govern the field.
(x) In a case between Commissioner of Central Excise,
Bolpur Vrs. M/s. Ratan Melting & Wire Industries reported in
2009 (1) CLR (SC) 174 that, Circular, which is contrary to the
statutory provisions has really no existence in law.
(xi) In a case between Harihar Mohapatra & Others Vrs.
Commissioner of Land Records and Settlement, Orissa &
Others reported in 1998 (2) OLR 495 that, Executive instruction
stands on a lower footing than a statutory rule.
5. Here, in this matter at hand, when Section 44 of The
Transfer of Property Act, 1882 empowers/authorizes a co-owner
of a plot like the petitioner in this writ petition for alienation of
his/her undivided interest/share in the joint plots/properties,
then, as per law, the transfer by a co-owner (co-sharer) of
his/her undivided interest in joint and undivided properties
cannot be denied as per law.
6. Therefore, as per law, a co-sharer/co-owner has his/her
inherent right to alienate his/her share/interest in the joint and
undivided properties to the extent of his/her share and even there
will be a sell of specific portion of land in the joint and undivided
properties indicating boundaries thereof, still then, the said
transfer/sell would be deemed as a transfer of share of the vendor
in the said joint and undivided properties.
7. As per law, when any executive instruction/circular or order
contrary to the statutory law cannot override the statutory law
and when, letter No.5554 dated 25.10.2024 (Annexure 3) of the
Collector, Cuttack itself is not prohibiting/banning the transfer of
share/interest by a co-sharer in his/her joint and undivided
properties, as the said letter of the Collector may be operative in
respect of alienation of part plot by an individual/exclusive owner
of a plot, then at this juncture, without quashing/setting aside
the letter No.5554 dated 25.10.2024 of the Collector, Cuttack, (as
the same is not contravening Section 44 of the T.P. Act, 1882)
and by applying the principles of law enunciated in the ratio of
the aforesaid decisions of the Hon'ble Courts and Apex Court, it is
felt proper to allow this writ petition filed by the petitioner in part
directing the District Sub-Registrar, Cuttack (O.P. No.3) to
register the sale deed in respect of sell made by the petitioner to
the extent of his share in the joint and undivided plots vide Plot
Nos.1932, 1933 and 1934 under Khata No.435/143 and 435/203
in Mouja Cuttack Town under Unit No.14 without alienating any
specific part/portion of the said plots and without indicating any
boundaries thereof, but, only indicating the transfer of his
interest/share in the said sold Plots vide Plot Nos.1932, 1933 and
1934.
8. As such, there is some merit in the writ petition of the
petitioner. The same is to be allowed in part.
9. In result, the writ petition filed by the petitioner is allowed in
part on contest.
10. District Sub-Registrar, Cuttack (O.P. No.3) is directed to
register the sale deed for alienation of the share of the
vendor/petitioner (Damodar Mishra) in Plot Nos.1932, 1933 and
1934 under Khata No.435/143 and 435/203 in Mouja Cuttack
Town under Unit No.14 in favour of his vendee Karunakar Rath
without indicating the sale of any specific portion of the said plots
and without indicating the boundaries, but, only indicating the
alienation of his share/interest therein.
11. District Sub-Registrar, Cuttack (O.P. No.3) is directed to
register the sale deed as per law according to the provisions of the
Registration Act, 1908 and Rules, if the same is presented by the
petitioner for registration indicating the sale of interest/share in
the sold plots as indicated above and to return the sale deed to
the petitioner within seven days after its registration.
12. Accordingly, the writ petition filed by the petitioner is
disposed of finally.
(ANANDA CHANDRA BEHERA)
JUDGE
Digitally Signed High Court of Orissa, Cuttack
03.04.2025// Binayak Sahoo
Reason: Authentication
Jr. Stenographer
Location: High Court of Orissa, Cuttack
Date: 04-Apr-2025 19:51:00
