Judgment:
Prakash Tatia, J.
1. Heard learned Counsel for the parties.
2. Following substantial question of law is involved in this appeal :
Whether both the Courts below committed error of law in setting aside the entire sale deed executed by Gheesa Ram in favour of Heeralal on 6th March, 1997, despite the fact that admittedly, said Gheesa Ram was co-sharer in the agricultural land sold by Gheesa Ram to Harial.
3. At the request of the learned Counsel for the parties, the appeal is heard finally.
4. It is not in dispute now that the suit property was sold by Gheesa Ram to Harlal by registered sale deed dated 6th March, 1997 by which he sold his share which, according to him, was 9 Bighas 12 Biswas in the agricultural field No. 70 measuring 27 Bighas 8 Biswas. Both the Courts below held that since the plaintiffs and defendants No. 3 to 7 were also having share in the property, therefore, the seller Gheesa Ram could not have sold out any land out of the joint-holding of Khasra No. 70 measuring 27 Bighas 8 Biswas of land.
5. Learned Counsel for the appellant vehemently submitted that assuming, for the sake of argument, that there were other co-sharers, even then, the seller was bound by the sale deed and since he sold unidentified share in the suit property, therefore, sale deed to the extent to the share of the seller is a legal and valid. By this sale deed, the purchaser steps in the shoes of the seller Gheesa Ram only. It is also submitted that it may be true that the defined land from the joint-holding without there being partition could not have been sold by any co-sharer, but a co-sharer has right to sell his share. So far as possession is concerned, for that purpose, the relief can be obtained by seeking partition of the property, but the sale deed cannot be set aside and the sale deed cannot become illegal, because of sale of the share in the property by the co-sharer.
6. Learned Counsel for the respondents submitted that in view of the fact that two Courts-below concurrently held that Gheesa Ram was not the sole owner of the property, nor the property was partitioned prior to execution of the sale deed or even subsequent thereto, therefore, Gheesa Ram had no right to sell the unidentified share in the joint-holding.
7. I considered the submission of the learned Counsel for the parties. The point of law has not been even considered by the two Courts below which is that whether a co-sharer in immovable property can sell his share in the property to stranger or not? The Courts-below proceeded on assumption that a person cannot sell his share in the property till it is partitioned, whereas after partitioned, one sells his own property and that property is demarcated property. That person acquires right to sell the property as a whole or any part thereof when the holding is partitioned and when holding is joint and the property has not been demarcated by partition by metes and bounds, then each co-sharer is the owner of every inch of the property. The shares may be defined as per the law applicable to the parties. The share can be alienated by co-sharer and that makes the purchaser entitled to take benefits of seller in the holding. The purchaser steps in the shoes of the seller and becomes co-sharer can get possession of the property by filling suit for partition if needed and if there is a consent of all co-sharers, he may become the joint owner of the property. In case there is dispute, the purchaser can seek relief of partition, so that he may get his share identified as the seller could have done if he would not have sold the property.
8. In view of the above, the said substantial question of law is decided in favour of the appellant and it is held that the sale deed executed by the Gheesa Ram in favour of purchaser Harlal to the extent of share of Gheesa Ram is valid sale deed and it has not affected the shares of any other cosharers in the holding.
9. In view of the above, the appeal is allowed.