Unneenkutty vs Taluk Land Bord. Tirur and Others

K P. Radha Krishna Menon J.

The declarant is the revision petitioner. The only point that survives for consideration is this: Is the Taluk Land Board justified in treating the sale of the land measuring 37.22 acres in extent, covered by document No. 2568/50, not on behalf of the petitioner also

Facts relevant to consider this point lie in a narrow compass. The property in dispute is a part of the property covered by Document No.411/50. The property taken in by this document measures 138.90 acres in extent. Going by the said document it can be seen that the property was acquired by the co-ownership consisting of the petitioner, his brother and sister. The brother Sold 37,22 acres as is seen from Document No.2568/50. According to the petitioner this sale must be treated is a sale for and on behalf of the petitioner and his sister also and if that be so the remaining extent, out of 138,90 acres, should have been treated as belonging to the co-ownership and as such only one third thereof should have been treated as owned/held by the petitioner. The sister died and therefore her share also had devolved on the petitioner. The petitioner therefore contended that he could be treated as having right over only two third share of the remaining property. The Taluk Land Board rejected this contention after entering the finding that the sale evidenced by Document No.2568/50 cannot be treated as a sale for and on behalf of the petitioner and his sister also. This resulted in the petitioner being treated as the owner of the remaining property. After giving exemptions he is eligible to have under the Act, the petitioner has been found to be in possession of 88.32 acres of land.

The learned counsel for the petitioner submits that the sale evidenced by Document No.2568/50 must be deemed to be a sale for and on behalf of the petitioner and his sister also because himself and the sister had acquiesced in the said transaction. The Taluk Land Board nonetheless has wrongly held otherwise. In support of this argument he relied on three rulings, one of the Allahabad High Court in Kashi Nath Tewari and Another Vs. Makchhed Tewari and Others, , one of the Madras High Court in Appasamy vs. Sundarem ( A. I. R. 1996 Madras 696), and the other "of this court in Saidali vs. Amirta Umma (1984 K.LT. SN 58, case No. 99).

This court in the said decision has held that a purchase certificate obtained by one of the co-shares enures to the benefit of the other co-sharer also because the co-sharer who obtained the purchase certificate must be treated as a trustee holding the property on behalf of the other co-sharer also. This is what this court has said:-

Even though the other co-owners were not eo-nominee parties to the purchase proceedings, as long as the certificates were obtained by a person who was only a co-owner, the rights obtained will certainly enure to the benefit of the other co-owners as well. This follows in view of the fact a co-owner in possession will be treated as a trustee.

This principle however would not apply to a case where a co-owner had alienated his share in the co-ownership property. It is relevant in this context to remember the well established principle of law in this regard. One co-sharer cannot sell more than his share of the co-ownership'' property so its to bind the other co-sharers. However, it is open to one co-sharer to authorise sale of his share in the co-ownership property and such authorisation may be either express or implied. It therefore follows that the sale by a co-owner of anything more than his share in the co-ownership property will not ''be binding on the other co-sharers unless it be that the'' other co-sharers have given their consent either express or implied, for such sale. The Madras ruling referred to above has expressed an identical view.

The Allahabad decision is on a different footing. Here a co-sharer on behalf of other sharers had executed deed of exchange in favour of a stranger and the stranger transferee continued in possession without objection for many years. Taking note of these peculiar facts, the Allahabad High Court has observed that the transferee cannot be allowed to resile from the agreement after a lapse of so many years and the deed of exchange cannot be held to be invalid on the ground that some of the co-sharers were not parties to it. In the Madras decision one of the co-sharers transferred the entire co-ownership property to pay a mortgage debt and the sale was with the consent of other co-sharers. The question that arose in this case was, whether a transfer effected by a co-sharer for a purpose different from the purpose for which the other co-sharers had authorised the sale of the property, could vitiate the sale. The Madras High Court held it will not. These decisions also do-not support the case of the petitioner. Going by the principle highlighted in paragraph 5 above, I ''have no hesitation to hold that the Taluk Land Board has rightly rejected the above argument of the petitioner. The sale of property effected by Document No.2568/50 cannot be treated as for and on behalf of the petitioner and his sister. In this connection it is relevant to note that there is nothing on record to show that the sale was effected with consent of the other co-owners, also. Whatever that be, it is not the case of the petitioner that by the sale aforesaid, the assignor-co-owner had sold more than his share in the co-ownership property. By that sale only the share os the assignor-co-owner in the co-ownership property had been sold. The Taluk Land Board therefore has rightly treated the petitioner as the owner in respect of. the two thirds property covered by Document No. 411/50. The C.R.P. for the reasons stated above is dismissed. No. costs.