1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH SECOND APPEAL NO. 69 OF 1994 Tejrao Punjaji Kalwaghe, aged about 45 years, occupation – Agriculturist, r/o Nandrakoli, Taluka & District – Buldana. ... APPELLANT Versus 1. Smt. Tanabai Namdeo Tayade, aged 48 years, occupation - Agriculturist. 2. Sukhdeo Namdeo Tayade, aged about 22 years, occupation – Agriculturist. Both residents of Nandrakoli, Taluka & district – Buldana. 3. Sau. Gangabai w/o Uttam Wagh, aged about ....., r/o Khupata, Tq. Sillod, District – Aurangabad. 4. Mathurabai Pandu Padle, aged about 40 years, occupation – Labourer, r/o Savingi Awaghad, Tq. & District – Jalna. ... RESPONDENTS Shri R.L. Khapre, Advocate for the appellant. ..... 2 CORAM : B.P. DHARMADHIKARI, J. JANUARY 19, 2009. ORAL JUDGMENT : The original defendant No. 3 in Regular Civil Suit No. 177 of 1989 challenges the decree and judgment delivered by Joint Civil Judge, Junior Division, Buldana, holding that sale deed dated 12.4.1984 executed in his favour was illegal and void and ordering enquiry into mesne profits. He challenged said judgment and decree before the District Judge, Buldana, in Regular Civil Appeal No. 74 of 1992 and on 11.1.1994, his appeal also came to be dismissed. Second Appeal has been admitted on 26.4.1994 mentioning grounds No. 1, 3, 4 & 5 as substantial questions of law. Those grounds prima facie appear to be involved and hence are reproduced below : “1. Whether a co-owner in suit property is entitled to sale specified portion of the land without partition amongst co-owner and as such co-owner has not right to sale specified portion by virtue of such sale deed the purchaser steps in the shoes of vendor co-owner and becomes the co-owner with other non- 3 alienating co-owners ? 3. What is the effect of declaration that Transfer effected by the co-owner pertaining to the specified portion of the land which forms a fragment is void given by the Fragmentation authorities in other words can it be said that said declaration does not makes entire sale deed as null and void and said declaration makes sale of specified portion of land only null and void keeping sale deed as valid so far as transfer of interest of alienating co-owner in favour of purchaser making said purchaser co-owner along with other non-alienating co-owner. 4. What is the combine effect of provisions of Sections 7, 8, 8(aa) and 9 of the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947, particularly in relation to the sale deed which is in respect of fragment within the meaning of said Act. It is submitted that in view of provisions of Section 9 which used the word only transfer and not sale deed, a transfer of fragment only will become void and not the entire sale deed. Thus, such sale deed will operate so far as transfer of interest of vendor is concerned and partition of such land will have to be effected in 4 pursuance to the provisions of Section 8A(a) of the Act which allows transfer of interest. 5. Whether suit for partial partition by the member of Joint Hindu Family is maintainable ?” 2. Shri Khapre, learned counsel for the appellant points out that on 12.4.1984, defendant No.3 purchased land admeasuring 29R from Gat No. 87 and 13 R from Gat No. 91 from the original defendant No.1 – Gangabai. The said sale deeds were challenged by one Sakharam Tayade i.e. brother of Gangabai contending that it was joint Hindu family property and Gangabai alone therefore, could not have sold it. It appears that during the pendency of suit, Sakharam expired and his legal heirs were brought on record. Those legal heirs are Respondents No. 1 & 2 in this Second Appeal. The trial Court framed issues and found that suit property was ancestral property, sale deed dated 12.4.1984 was illegal and not binding upon the plaintiff. It also found that the defendant No.3 could not establish that property was exclusively belonging to defendant No.1 and hence decreed 5 the suit. The lower appellate Court has maintained it. 3. In this background, Shri Khapre, learned counsel has contended that in view of provisions of Section 29 of Hindu Succession Act, read with Section 44 of Transfer of Property Act, defendant No.1 – Gangabai was competent to sale her share in the field properties mentioned above. According to him, the Courts below ought to have viewed the transaction as not a transaction of sale of specified portion of field Gat Nos. 87 and 91. He argues that the Courts below ought to have seen that defendant No.3 had purchased the joint undivided share in said property and was, therefore, entitled to declaration of ownership accordingly. He has invited attention of Court to Division Bench of this Court in the case of Patilbua Pandu Landge vs. Sadashiv Vithoba Kamble & Ors., reported at 1976 BCI 21 and Sinpdjli,ar & Ors. vs. Bhagwant Namdeorao Mehetre & Ors, reported at AIR 2007 SEC 1324, to urge that the Courts below ought not to have declared the sale deed dated 12.4.1984 as void. According to him, at the most the sale of specific portion could have been 6 declared vitiated thereby leaving defendant No.3 to file a suit for joint partition so as to get share of his vendor ascertained and specified. He also relies upon the judgment of the learned Single Judge of this Court in the case of Sidagonda Avagonda Sardar Patil & Anr. vs. Bhimgonda Kadgonda Kushappa Patil, reporetd at 2002 (3) Bom. C.R. 563, to urge that the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as Fragmentation Act), do not bar sale of any interest in fragment or sale of interest in land. According to him, the sale deed could not have been declared as hit by provisions of Section 8(AA) of the Fragmentation Act, and the Courts below ought to have left that job to be carried out after the share of Gangabai was ascertained. 4. Nobody has appeared for the respondents though the matter was heard earlier on 17.1.2009 and even today. 5. The perusal of impugned judgments reveal that the authorities have found that the land was joint family property 7 and hence defendant No.1 – Gangabai could not have more than 1/6th share in the joint family property. It was also noticed that Sub-Divisional Officer, Buldana, vide his order at Exh. 24 declared the sale deed dated 12.4.1989 to be in contravention of Section 31 of the Fragmentation Act. It is in this background, it has considered the controversy and found that defendant No.3 could not establish that property sold exclusively belonged to his vendor i.e. defendant No.1. In view of these findings, it has decreed the suit. For the same reasons, the appeal also has been dismissed. 6. In Sidagonda Avagonda Sardar Patil & Anr. vs. Bhimgonda Kadgonda Kushappa Patil, (supra) in para 16, this Court has found that the breaking of the consolidated land is not anathema to Fragmentation Act. These observations and subsequent observations are made in the background of the fact that the plaintiff there was having Block No. 1237 belonging to him as contiguous piece of land fragments in question. That is not the position in the present case. Coupled with this, there is 8 already an order passed by competent authority that the sale deed dated 12.4.1984 is in contravention of provisions of Fragmentation Act and, therefore, void. I, therefore, find that said ruling has no application in the present facts. 7. This brings me to consideration of the second contention that defendant No.3 must be deemed to have purchased the joint and undivided interest of Gangabai in the entire Gat No. 87 or 91 and thereby giving him an opportunity to file suit for general partition. The judgment of Division Bench of this Court in Patilbua Pandu Landge vs. Sadashiv Vithoba Kamble & Ors. (supra) particularly para 21 as pressed into service shows that though a suit by the non alienating coparceners for partition of a specific property out of the joint family properties is maintainable, such suit for partial partition by a stranger purchaser is not maintainable. It has been pointed out by the Hon'ble Division Bench that the non-alienating coparcener is entitled in Bombay to file a suit for partition of the alienated property without bringing a suit for general partition. It has been 9 observed that while decreeing the suit of the non alienating coparceners for partition of the specific property, the equities in favour of the purchaser will have to be worked out in a general suit for partition of all the joint family property and therefore a direction should be added that the execution of the decree in favour of the non alienating coparceners should remain stayed for a specific period during which period the purchaser may file a suit for general partition. In Subodhkumar and Ors. vs. Bhagwant Namdeorrao Mehetre & Ors., (supra), it has been observed in para 13 that a coparcener cannot alienate, even for valuable consideration, his undivided interest in the joint family without the consent of his coparceners. The position as considered is in the light of its earlier judgment in the case of Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh & Ors., reported at AIR 1953 SC 487 and a little later, the observations in said judgment which read “All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint 10 possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour”, have been reproduced. It is, therefore, obvious that the rights of parties under uncodified Hindu Law then prevailing was considered by the Hon'ble Apex Court in the matter. 8. In the facts before me, the undivided share has not been specified. What is transferred by sale deed to present appellant is a particular i.e. specified and identified property. The said document of transfer dated 12.4.1984 is already declared to be void by the Competent authority. In the circumstances, if the appellant wanted to exercise his right of demanding general partition or then to claim that he should be treated as purchaser of the undivided joint portion of defendant No.1, that plea ought to have been raised before the trial Court. Had there been such a plea, the question whether the family had other properties and what is the extent of holding of defendant 11 No.1 – Gangabai therein would have come on record. No such plea has been taken and there is absolutely no such evidence on record. For the first time in Second Appeal, the effort is to show that the appellant – defendant No.3 can be treated as purchaser of joint undivided share, proportionate to the share of vendor Gangabai. The further effort is to read provisions of Section 8(AA) of Fragmentation Act to show that in case partition and allotment of a separate share accordingly to present appellant is found to be not feasible, he becomes entitled to claim market price thereof. It is, therefore, obvious that the appellant – defendant No.3 intends to file a separate suit for general partition and in it to point out his interest on the basis of sale deed. In all reported judgments which are placed before me, the sale deed was not in relation to fragment and therefore was not found to be vitiated or void. Here, the document is already declared to be void by the competent authority and that order has become final. Whether on the basis of this document a suit for general partition can be allowed to be filed when necessary facts therefor are not on record, is the basic question ? Such question did not arise 12 either before the Division Bench of this Court in Patilbua Pandu Landge vs. Sadashiv Vithoba Kamble & Ors. (supra) or before the Hon'ble Apex Court in Subodhkumar & Ors. vs. Bhagwant Namdeorao Mehetre & Ors. (supra). In Second Appeal, for the first time, I find myself unable to consider such aspect which requires examination of facts like availability of other property with the family and then a feasibility of a partition therein. 9. In view of the findings of Sub-Divisional Officer, in relation to sale deed dated 12.4.1984 declaring the sale to be void, I find myself unable to undertake such an enquiry. The questions sought to be raised, therefore, in present matter did not really arise for consideration in present facts. Second Appeal is, therefore, dismissed. It is dismissed. No order as to costs. JUDGE ******* *GS.