Sanjukta Sahu vs Joginath Sahu & Others on 10 April, 2026

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    Orissa High Court

    Sanjukta Sahu vs Joginath Sahu & Others on 10 April, 2026

                        IN THE HIGH COURT OF ORISSA AT CUTTACK
    
                                                R.S.A No.320 of 2005
    
                      In the matter of an appeal under Section 100 of the Code of Civil
                      Procedure, 1908
    
                       Sanjukta Sahu                               ....            Appellant
    
    
                                                        -versus-
                       Joginath Sahu & others                      ....         Respondents
    
    
    
                      Appeared in this case:-
                            For Appellant           :              Mr. P.K. Sahoo, Advocate
    
                            For Respondents         :              None
    
    
                       CORAM:
                       JUSTICE A.C. BEHERA
                                               JUDGMENT
    

    Date of hearing :11.03.2026 / date of judgment : 10.04.2026

    A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.

    SPONSORED

    2. The respondent No.1 in this 2nd appeal (Joginath Sahu) was the

    sole plaintiff before the learned Trial Court in the suit vide Title Suit

    No.26 of 1997 and appellant before the learned 1st Appellate Court in the

    1st appeal vide Title Appeal No.23 of 2003.

    The respondent No.3 (Bhagaban Sahu) in this 2nd appeal was the

    defendant No.2 before the learned Trial Court in the suit vide Title Suit
    // 2 //

    No.26 of 1997 and respondent No.2 before the learned 1st Appellate

    Court in the 1st appeal vide Title Appeal No.23 of 2003.

    The respondent No.2 in this 2nd appeal i.e. Manguli Sahu was the

    defendant No.1 before the learned Trial Court in the suit vide Title Suit

    No.26 of 1997 and the respondent No.1 before the learned 1st Appellate

    Court in the first appeal vide Title Appeal No.23 of 2003.

    When during the pendency of the 2nd appeal, Manguli Sahu

    expired, then the appeal is continuing between the appellant and

    respondent Nos.1 and 3.

    The appellant in this 2nd appeal (Sanjukta Sahu) was the defendant

    No.3 before the learned Trial Court in the suit vide Title Suit No.26 of

    1997 and respondent No.3 before the learned 1st Appellate Court vide

    Title Appeal No.23 of 2003.

    3. The suit of the plaintiff – Joginath Sahu (respondent No.1 in this

    2nd appeal) vide Title Suit No.26 of 1997 against the defendants before

    the learned Trial Court was a suit for declaration.

    As per the case of the plaintiff, his grandfather was Khali Sahu.

    Khali Sahu had three sons i.e. Sanatan Sahu, Manguli Sahu (defendant

    No.1) and Abhiram Sahu.

    Page 2 of 20

    // 3 //

    Manguli Sahu (defendant No.1) is the father of the plaintiff

    (Joginath Sahu). Manguli Sahu (defendant No.1) has two sons i.e.

    plaintiff (Joginath Sahu) and defendant No.2 (Bhagaban Sahu).

    Defendant No.3 (Sanjukta Sahu) is the wife of the defendant No.2

    (Bhagaban Sahu).

    The suit properties along with other properties were the ancestral

    properties of his grandfather (Khali Sahu). After the death of Khali Sahu,

    the suit properties along with their other ancestral properties devolved

    upon his three sons i.e. Santan Sahu, Manguli Sahu (defendant No.1) and

    Abhiram Sahu.

    On the basis of the partition of the ancestral properties between

    him (Manguli Sahu – defendant No.1) and his two brothers, the suit

    properties along with some other properties fell into the share of Manguli

    Sahu (defendant No.1).

    As such, the suit properties are the ancestral properties of the

    plaintiff, defendant Nos.1 and 2. Defendant No.1 (Manguli Sahu) being

    the father of the plaintiff and defendant No.2 was the Karta of their joint

    family. The suit Plot No.222 is Ac.0.02 dec. which is their Bari land, the

    same adjoining to suit Plot No.223 Ac.0.01 dec. of their Ghara land.

    The parties are Hindus and their sub-caste is Teli and their

    profession is business. The plaintiff and the defendant No.2 are two
    Page 3 of 20
    // 4 //

    brothers and they are doing their own separate business at Birat Bazar

    and Kedarswar Bazar respectively and they (Plaintiff and defendant no.2)

    are in separate mess.

    In the year 1976, the father of the plaintiff and defendant No.2 i.e.

    defendant No.1 went to Charibatia for business purpose along with the

    plaintiff and defendant No.2 and stayed there. The plaintiff and the

    defendant No.2 are also staying at Charibatia.

    The defendant No.1 (Manguli Sahu) has imbalanced mind. So,

    taking the advantage of the imbalanced mind of the defendant No.1, the

    defendant No.2 managed to execute sale deed No.408 dated 5.2.1996 in

    respect of the suit properties from him (defendant No.1-Manguli Sahu) in

    favour of his wife i.e. defendant No.3 (Sanjukta Sahu) without the

    knowledge of the defendant No.1 relating to the execution and

    registration of the said sale deed in favour of the defendant No.3 in

    respect of the suit properties. Subsequent thereto, when the plaintiff came

    to know about the execution of such fictitious sale deed in respect of the

    suit properties from Manguli Sahu (defendant No.1) in favour of

    Sanjukta Sahu (defendant No.3), he (plaintiff) asked about the same to

    the defendant Nos.2 and 3, but they paid deaf ear to the same. For which,

    he (plaintiff) applied for the certified copy of the said sale deed No.408

    dated 5.2.1996 and obtained the same on 9.1.1997. From the said

    Page 4 of 20
    // 5 //

    certified copy of the sale deed No.408 dated 5.2.1996, he (plaintiff) was

    sure that, the defendant No.2 (Bhagaban Sahu) has managed to execute

    and register the said sale deed No.408 dated 5.2.1996 in respect of the

    suit properties from the defendant No.1 (Manguli Sahu) by practicing

    fraud and misrepresenting him (defendant No.1) and narrating false

    things in that sale deed without payment of any consideration amount to

    the defendant No.1 and without taking the delivery of possession of the

    suit properties. The suit properties are the joint house and homestead land

    of the plaintiff and the defendant Nos.1 and 2 and the same has not been

    partitioned/divided between them. So, the defendant No.1 executed and

    registered a deed of cancellation bearing No.148 dated 13.1.1997

    cancelling the sale deed No.408 dated 5.2.1996 in favour of the

    defendant No.3. In spite of cancellation of the sale deed No.408 dated

    5.2.1996 by the defendant No.1 through deed of cancellation No.148

    dated 13.1.1997, the defendant No.3 applied for mutation of the suit

    properties to her name on the basis of the sale deed No.408 dated

    5.2.1996 in her favour by filing Mutation Case No.449 of 1996 before

    the Tahasildar, Banki, to which, the plaintiff objected, for which, the said

    Mutation Case No.449 of 1996 of the defendant No.3 was disallowed by

    the Tahsildar, Banki on dated 22.4.1997. Thereafter, he (plaintiff)

    approached the Civil Court by filing the suit vide Title Suit No.26 of

    Page 5 of 20
    // 6 //

    1997 against the defendants praying for a declaration that, the sale deed

    No.408 dated 5.2.1996 said to have been executed by the defendant No.1

    in favour of the defendant No.3 in respect of the suit properties as void

    and to intimate the Registering Officer about the same along with other

    reliefs, to which, he (plaintiff) is entitled for.

    4. The defendant No.1 filed his written statement supporting the case

    of the plaintiff taking his stands in his written statement that, the plaintiff

    and the defendant No.2 are his two sons and he is the Karta of his joint

    family. Since 1976, he left for Charibatia for business purpose with the

    plaintiff and the defendant No.2. In due course of time, the plaintiff and

    the defendant No.2 i.e. his both sons are doing business separately and

    independently. As he (defendant No.1) is old, for which, he required

    assistance of his sons. His both sons i.e. the plaintiff and the defendant

    No.2 were/are not pulling well with each other, for which, he (defendant

    No.1) tried for settlement of their disputes through local gentries, but the

    same was not fruitful. On 5.2.1996, he was seriously ill. His youngest

    son Bhagaban Sahu (defendant No.2) brought him to Cuttack for the

    execution of a power of attorney from him in his favour to manage his

    business. When he (defendant No.1) reached at Cuttack, the so-called

    sale deed was already scribed by the Moharir of the defendant No.2. The

    same was not read over and explained to him (defendant No.1). He had

    Page 6 of 20
    // 7 //

    signed on the said sale deed on good faith according to the say of his son

    (defendant No.2). Later, he could know that, the said sale deed is a false

    one and the defendant No.2 has managed to execute the same in favour

    of his wife i.e. defendant No.3. After knowing about the same, he

    (defendant No.1) cancelled to that sale deed on dated 13.1.1997 through

    a registered deed of cancellation. For which, the defendant No.3 has no

    interest in the suit land. So, the said sale deed No.408 dated 5.2.1996 is

    to be declared as void.

    5. The defendant Nos.2 and 3, both husband and wife, were set ex

    parte. Though, they (defendant Nos.2 and 3) had filed their joint written

    statement, but the same was not accepted by the learned trial court.

    In the said suit vide T.S No.26 of 1997 altogether five numbers of

    issues were framed by the learned Trial Court and the said issues are:-

    ISSUES

    1. Is the suit maintainable?

    2. Has the plaintiff any cause of action for the suit ?

    3. Is the registered sale deed no.408 dated 5.2.1996 void being
    tainted with fraud ?

    4. Has the plaintiff right, title, interest over the suit land?

    5. To what relief, if any, is the plaintiff entitled ?

    6. In order to substantiate the aforesaid reliefs sought for by the

    plaintiff against the defendant Nos.2 and 3, he (plaintiff) examined four

    Page 7 of 20
    // 8 //

    witnesses from his side as P.Ws.1 to 4 including him as P.W.1 and

    exhibited two documents on his behalf vide Exts.1 and 2.

    The defendant No.1 had also adduced evidence as D.W.1 and had

    relied upon the document vide Ext.A.

    7. After conclusion of hearing, an ex parte judgment and decree was

    passed in that suit vide Title Suit No.26 of 1997 against the defendant

    Nos.2 and 3, to which, the defendant Nos.2 and 3 challenged by

    preferring an appeal vide Title Appeal No.35 of 2000.

    That appeal vide Title Appeal No.35 of 2000 filed by the

    defendant Nos.2 and 3 was allowed and the ex parte judgment and

    decree passed in that suit vide Title Suit No.26 of 1997 was set aside and

    the Title Suit No.26 of 1997 was remanded back to the learned Trial

    Court for its re-trial giving a scope to the defendant Nos.2 and 3 for

    participating in the hearing of the arguments of the said suit without

    filing any written statement.

    8. Accordingly, after hearing from both the sides, the learned Trial

    Court dismissed that suit vide Title Suit No.26 of 1997 of the plaintiff on

    contest as per its judgment and decree dated 3.1.2003 and 21.01.2003

    respectively answering all the issues against the plaintiff assigning the

    reasons that :-

    Page 8 of 20

    // 9 //

    “The plaintiff has failed to plead and prove relating to the so
    called fraud alleged to have been practiced by the defendant
    No.2 for the execution and registration of the sale deed No.408
    dated 5.2.1996 (Ext.1) in respect of the suit properties from the
    defendant No.1 in favour of the defendant No.3. For which
    through that sale deed No.408 dated 5.2.1996, title of the suit
    properties was conveyed in favour of the defendant No.3 and as
    such defendant no.3 has title in the suit properties. Therefore,
    the registered sale deed bearing No.408 dated 5.2.1996
    executed by the defendant No.1 in favour of the defendant No.3
    in respect of the suit properties is not tainted with fraud. So the
    plaintiff has no cause of action to institute the suit.

    When the suit land still remains in jointness, it is open to
    him (plaintiff) to seek for the relief i.e. partition of the suit land,
    but the plaintiff has not done so. For which, he (plaintiff) is
    disentitled to the declaratory relief as prayed for in view of the
    Proviso to Section 34 of the Specific Relief Act.”

    9. On being dissatisfied with the aforesaid dismissal of the suit of the

    plaintiff passed by the learned Trial Court, he (plaintiff) challenged the

    same preferring the first appeal vide Title Appeal No.23 of 2003 being

    the appellant against the defendant Nos.2 and 3 arraying them as

    respondent Nos.2 and 3 and also arraying defendant No.1 as the

    respondent No.1.

    10. After hearing from both the sides, learned 1st Appellate Court

    allowed that First Appeal vide Title Appeal No.23 of 2003 of the

    Page 9 of 20
    // 10 //

    plaintiff-appellant as per its judgment and decree dated 30.06.2005 and

    12.07.2005 respectively and set aside to the judgment and decree of the

    dismissal of the suit of the plaintiff vide Title Suit No.26 of 1997 passed

    by the learned Trial Court and decreed the said suit vide Title Suit No.26

    of 1997 of the plaintiff and declared the sale deed No.408 dated 5.2.1996

    (Ext.1) executed by the defendant No.1 in favour of the defendant No.3

    in respect of the suit properties as void and cancelled the same and

    intimated such cancellation to the concerned Sub-Registrar, assigning the

    reasons that,

    “the suit properties are the joint family Gharabari land, wherein

    the plaintiff has a share and as the defendant No.1 has cancelled the sale

    deed vide Ext.1 through a deed of cancellation vide Ext.A and as the

    defendant No.1 is a fickle minded person having no independent mind to

    take proper decision, for which, the sale deed No.408 dated 5.2.1996

    vide Ext.1 executed by him in favour of defendant No.3 is void”.

    11. On being aggrieved with the aforesaid judgment and decree dated

    30.06.2005 and 12.07.2005 respectively passed by the learned 1st

    Appellate Court in Title Appeal No.23 of 2003 in favour of the plaintiff

    and against the defendant No.3, the defendant No.3 challenged the same

    preferring this 2nd appeal being the appellant against the plaintiff and the

    Page 10 of 20
    // 11 //

    defendant No.1 arraying them as respondent Nos.1 and 2 and also

    arraying her husband (defendant No.2) as proforma respondent No.3.

    12. This 2nd appeal was admitted on 01.05.2007 on formulation of the

    following substantial questions of law:-

    “1. Whether the findings of the learned 1st appellate court that the
    sale deed, Ext.1 is void without recording any specific finding on the
    allegation of fraud and misrepresentation is legally tenable ?

    2. Whether the learned 1st appellate court committed error of record
    and approached the issue in a perverse manner?”

    When during the pendency of this 2nd appeal, the respondent No.2

    (Manguli Sahu) expired, then the appeal has been continuing for other

    parties.

    13. I have already heard from the learned counsel for the appellant

    (defendant No.3) only, as, none appeared from the side of the respondent

    Nos.1 and 3 to participate in the hearing of this 2nd appeal.

    14. When, the findings and observations made by the learned Trial

    Court and the learned 1st Appellate Court in their respective judgments

    and decrees on the basis of the pleadings and evidence, both the

    aforesaid formulated substantial questions of law are inter-linked having

    ample nexus with each other, then both the aforesaid formulated

    substantial questions of law are taken up together analogously for their

    discussions hereunder:

    Page 11 of 20

    // 12 //

    15. It is the own case of the plaintiff that, the suit properties are his

    ancestral properties and the suit properties have not been

    divided/partitioned between him (plaintiff), his father (defendant No.1)

    and his brother (defendant No.2) through any metes and bounds

    partition. He (plaintiff), defendant No.1 and defendant No.2 have equal

    interest/share in the suit properties.

    The plaintiff (P.W.1) has deposed in his evidence by stating that,

    “the suit properties are his ancestral properties”.

    The witnesses of the plaintiff i.e. P.Ws.2, 3 and 4 have also

    deposed specifically in their respective evidence that, “the parties i.e.

    plaintiff and the defendants are in possession over the suit properties

    jointly”.

    16. The above evidence of the plaintiff and his witnesses is

    corroborating to the pleadings of the plaintiff and the same is going to

    show that, the suit properties are the joint and undivided properties of the

    parties and they are possessing the same jointly. The suit properties have

    not been partitioned/divided between them through any metes and

    bounds partition.

    Now it will be seen,

    Whether, there is material in the record to show about the

    execution and registration of the sale deed No.408 dated 5.2.1996 vide

    Page 12 of 20
    // 13 //

    Ext.1 by the defendant No.1 in favour of the defendant No.3 in respect of

    the suit properties with his intention and knowledge of such execution or

    without his intention and knowledge about the execution and whether by

    the unilateral cancellation of the said deed through the deed of

    cancellation dated 13.1.1997 vide Ext.A, the legal effect of the sale deed

    No.408 dated 5.2.1996 vide Ext.1 has been wiped out.

    17. The plaintiff (P.W.1) has specifically deposed in Para No.4 of his

    deposition that,

    when his father (defendant No.1) realized the mistake regarding

    the execution of the impugned sale deed No.408 dated 5.2.1996 vide

    Ext.1, then he executed and registered the deed of cancellation vide

    Ext.A.

    18. The defendant No.1 has deposed in his examination-in-chief by

    stating that,

    the sale deed vide Ext.1 was executed by him on the impression

    that, he is executing power of attorney, for which, on dated 13.1.1997, he

    executed the registered deed of cancellation bearing deed of cancellation

    No.148 dated 13.1.1997 vide Ext.A cancelling the sale deed No.408

    dated 5.2.1996 vide Ext.1.

    The above evidence of P.Ws.1 and 2 is going to show about the

    execution of the sale deed No.408 dated 5.2.1996 vide Ext.1 by the

    Page 13 of 20
    // 14 //

    defendant No.1 in favour of the defendant No.3 in respect of the suit

    properties with the intention and knowledge of the defendant No.1 about

    such execution, for the reason that, when the defendant No.1 realized

    that, he (defendant No.1) has committed a mistake executing the sale

    deed No.408 dated 5.2.1996 subsequent to its execution and registration,

    he (defendant No.1) cancelled the same through the deed of cancellation

    vide Ext.A.

    As such, the execution of the sale deed No.408 dated 5.2.1996 by

    the defendant No.1 in favour of the Defendant No.3 with the intention

    and knowledge of the defendant No.1 about such execution and

    registration in respect of the suit properties is established.

    Now it will be seen, what is the legal effect of unilateral

    cancellation of the sale deed by the defendant No.1 through execution

    and registration of the deed of cancellation bearing No.148 dated

    13.1.1997, vide Ext.A.

    19. The legal effect of an unilateral deed of cancellation has already

    been clarified in the ratio of the following decisions:

    (i) In a case between Thota Ganga Laxmi and Another
    vrs. Government of Andhra Pradesh and Others reported in
    (2010) (15) SCC 207 that,

    Cancellation of sale deed and registration of the same
    was wholly void and non-est and can be ignored altogether;

    There was no need for the appellants to approach the
    civil court as the said cancelation deed dated 4.8.2005 as well

    Page 14 of 20
    // 15 //

    as registration of the same was wholly void and non-est and
    can be ignored altogether.

    (ii) In a case between M/s.V.Marc India Limited vrs. Jaan
    Illahi and Another reported in 2025 (3) Civil Court Cases 190
    (Uttarakhand) that,

    Cancellation of a registered sale deed by the executant
    unilaterally on the ground that he was not of stable mind at the
    time of execution of the same, the said cancellation of
    registered sale deed on the ground that executant was not of
    stable mind is not a ground for cancellation of a duly
    registered document.

    (iii) In a case between Satya Pal Anand vrs. State of Madya
    Pradesh and others reported in (2016) 10 SCC 767 that,

    There is no express provision in the Registration Act,
    1908
    which empowers the Registrar or Sub-Registrar to recall
    or cancel any registered deed.

    The power to cancel the registration is a substantive matter. In the

    absence of any express provision in that behalf, it is not open that, the

    Registrar or Sub-Registrar would be competent to cancel the registration

    of the documents in question.

    When unilateral cancellation of a sale deed already executed deed

    by the vendor is not permissible under law, then at this juncture by

    applying the principles of law enunciated in the ratio of the aforesaid

    decisions to this suit/appeal at hand, it is held that, the unilateral deed of

    cancellation No.148 dated 13.1.1997 vide Ext.A is held as non est in the

    eye of law and the same has no legal value. For which, the said deed of

    cancellation vide Ext.A is excluded from the zone of consideration.

    Page 15 of 20

    // 16 //

    20. As per the discussions and observations made above, when it is

    held that, the suit properties are the ancestral properties of the plaintiff

    and the defendant Nos.1 and 2 and they have equal share in the same and

    the said suit properties have not been divided/partitioned between them

    as yet, then at this juncture, it will be seen, whether the sale deed No.408

    dated 5.2.1996 vide Ext.1 executed by the defendant No.1 in respect of

    the suit properties in favour of the wife of the defendant No.2 i.e.

    defendant No.3 is void or not.

    21. It is very much clear as per the mandate of Section 44 of the T.P

    Act, 1882 that, a co-owner (co-sharer) is entitled to alienate his

    undivided share in the joint properties without acknowledging the rights

    of his/her co-owners in the sale deed. Such sale deed will not become

    void or voidable at the option of other co-owners.

    On this aspect, proposition of law has already been clarified in the

    ratio of the following decisions.

    (i) In a case between Sitarani Rath vrs. The Inspector
    General of Registration, Odisha and Ors. reported in 120
    (2015) CLT 1069 that,

    Joint family property – Transfer of immovable property
    by one of the co-owners is legally competent in that behalf.
    Held. Transfer is valid to the extent of the share of the
    transferor.

    (ii) In a case between Dillip Kumar Sahoo vrs. Smt. Malati
    Rout and others reported in 2013 (1) CLR 570 that,

    Page 16 of 20
    // 17 //

    Transfer by one of the co-owners remains valid to the
    extent of the share of the transferor.

    (iii) In a case between Sk. Golam Lalchand vrs. Nandu Lal
    Shaw alias Nand Lal Keshri alias Nandu Lal Bayes and
    Others reported in 2024 SCC Online SC 2456 that,

    Joint properties not partitioned, the owners right to
    transfer to limited to his share and not beyond that.

    (iv) In a case between Gangu Bai Raghunath Ayare vrs.
    Gangaram Sakharam Dhuri (D) Theirs Lrs And Ors.
    reported in 2025 (3) Civil Law Judgments 211 (Supreme
    Court) that,

    Registered sale deed executed by one co-sharer shall be
    valid for her share – purchaser cannot claim the entire
    properties which was the subject-matter of transfer by sale in
    view of Section 44 of the T.P. Act, 1882.

    (v) In a case between Dhabal Prasad Pradhan vrs. Sate of
    Odisha and others reported in 2014 (II) OLR 902 that,

    Transfer passes forthwith all the interest of the
    transferor in favour of transferee and in the legal incidents
    thereof.

    (vi) In the case between Gorakh Nath Dubey vrs. Hari
    Narain Singh and others reported in AIR 1973 SC 2451 that,

    Transfer by co-owner excess to his/her share – An
    alienation made in excess of power to transfer would be, to the
    extent of the excess of power, is invalid.

    (vii) In a case between Gananath Sahu &another Vrs. Smt.
    Bulli Sahu & others reported in 1974(1) C.W.R. 222 that,

    Transfer of property more than the transferor’s interest
    in lands jointly held with others is not invalid in toto. It would
    be valid and operative to the extent of the transferor’s interest
    in the lands.

    (viii) In a case between Gurdeep Singh & others vrs.
    Kulwant Singh & others reported in 2018 (1) Civil Court
    Cases 546 (P&H) that,

    Sale of specific portion of land – no co-share was
    recorded to be in possession of any specific portion of the joint
    Page 17 of 20
    // 18 //

    land – Since the vendors were not in exclusive possession of
    any portion of the joint land, they could not deliver possession
    of any such portion and the recitals regarding delivery of
    possession would create only symbolic possession of the
    purchaser even sale is made for specific portion of land would
    amount to sale of only a share in the joint land.

    (ix) In a case between Jal Singh & others vrs. Gurmej
    Singh reported in 2010 (I) CLR (SC) 319 that,
    When a co-share sells his share in the joint holding or any
    portion thereof and puts the vendee into possession of the land
    in his possession what he transfers is his right as a co-sharer in
    the said land and the right to remain in its exclusive possession
    till the joint holding is partitioned amongst all co-sharers.

    (x) In a case between FGP Ltd. Vrs. Saleh Hooseini
    Doctor &Anr. 2009 (4) Civil L.T 1 (SC) that,
    Co-owner of property is an owner of property till property is
    partitioned. (Para-46)

    22. As per the discussions and observations made above, when it is

    held that, the suit properties are the joint and undivided properties of the

    parties and the defendant No.1 has executed a registered sale deed

    No.408 dated 5.2.1996 vide Ext.1 in respect of the suit properties in

    favour of the defendant No.3 and when Section 44 of the T.P Act, 1882

    empowers a co-owner like the defendant No.1 for alienation of his

    undivided interest in the joint suit properties and when in view of the

    clarifications made in the ratio of the aforesaid decisions, sale made by

    the co-owner without consent of his other co-owners shall remain valid

    only to the extent of his/her share and when, even if, a co-owner sells a

    specific portion of the joint and undivided properties like the suit

    properties or sells the entire joint suit properties in excess of his share,
    Page 18 of 20
    // 19 //

    still then, it will be held as per law that, he has transferred/alienated only

    his interest in the suit properties and the said sale deed shall remain valid

    to the extent of the share of the vendor like the defendant No.1 and the

    vendee thereof like the defendant No.3 shall be entitled to get the joint

    interest in the suit properties without any specific portion in the said joint

    and undivided suit properties and when the said sale deed No.408 dated

    5.2.1996 vide Ext.1 is neither void nor voidable as per law, then at this

    juncture, the judgment and decree passed by the learned 1 st Appellate

    Court holding that, the sale deed No.408 dated 5.2.1996 as void as well

    as cancellation thereof cannot be sustainable under law, as the said sale

    deed No.408 dated 5.2.1996 vide Ext.1 is neither void nor voidable, but

    the transfer/alienation made through the same by defendant No.1 in

    favour of the defendant No.3 is valid to the extent of the interest/share of

    the defendant No.1 in the joint suit properties.

    For which the impugned judgment and decree passed by the

    learned 1st Appellate Court in Title Appeal No.23 of 2003 reversing the

    judgment and decree of the dismissal of the suit vide Title Suit No.26 of

    1997 of the plaintiff cannot be sustainable under law.

    So, there is justification under law for making interference with

    the same through this 2nd appeal filed by the appellant (defendant No.3

    of the suit).

    Page 19 of 20

    // 20 //

    As such, there is merit in the 2nd appeal filed by the appellant

    (defendant No.3). The same must succeed.

    23. In the result, this 2nd appeal filed by the appellant (defendant No.3)

    is allowed on merit.

    24. The impugned judgment and decree dated 30.06.2005 and

    12.07.2005 respectively passed by the learned 1st Appellate Court in

    Title Appeal No. 23 of 2003 is set aside.

    25. The judgment and decree dated 3.1.2003 and 21.1.2003

    respectively passed by the learned Trial Court in Title Suit No.26 of

    1997 in dismissing the suit of the plaintiff (respondent No.1) is

    confirmed.

    ( A.C. Behera )
    Judge

    Orissa High Court, Cuttack
    The 10th April, 2026/ Pradeep.

    Signature Not Verified
    Digitally Signed
    Signed by: PRADEEP KUMAR SWAIN
    Reason: Authentication
    Location: Orissa High Court, Cuttack
    Date: 11-Apr-2026 18:36:12

    Page 20 of 20



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