Co-Sharer

Vendee, who buys from a co-sharer, who owns an undivided khata in common with others, is clothed with the same rights as the vendor (co-sharer) has in the property, no more and no less

If the vendor (co-sharer) was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor (co-sharer) qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor (co-sharer) owns in the whole property.

Vendee purchasing property from a co-sharer, who owns an undivided joint property, is clothed with the same rights in the property, no more or no less than that of the vendor

If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to the vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of the transferor qua ownership rights in the joint property, to the extent of the area purchased, provided that the area in question does not exceed the share which the transferor owns in the whole property

Alienation of specific portion to the vendee would only entitle the latter to retain ostensible possession till such time as an actual legal partition by metes and bounds takes place between the co-sharers.

In case where one of the co-sharers claims share in the ancestral property, plaint cannot be rejected on the question of limitation without proper evidence after framing issues

Ordinary limitation does not apply amongst co-sharers though one of them be even out of possession.

Co-owners of a particular property are owners of each and every inch of joint property as long as the same is partitioned either privately or through recognized legal modes, as the case may be.

Every co-sharer is deemed to be the owner of every piece and parcel of the land unless the same is regularly partitioned.

Co-sharer in an estate was deemed to be in possession of each inch thereof till the land was partitioned according the respective shares.

Transfer of property by a co-sharer was subject to partition.

Possession of one co-sharer was considered as possession of all the co-sharers.

Co-sharer of immovable property would be deemed to have ownership right in every inch of property and one sharer cannot change the nature of property unless partition takes place

Co-sharer in joint property can neither make any change in the property without the consent of other co-sharer, nor he can deal with the joint property in a manner prejudicial to the interest of other co-sharer without his permission. [Para. 7 of the judgment]

Appeal was dismissed, in circumstances.

Co-sharer not in physical possession of the joint land could alienate only his share in the particular survey number and he was not entitled to transfer the land from the whole Khewat in excess of his overall share in the relevant Khewat.

Contention of plaintiff was that suit land was in his ownership and possession on the basis of family partition and defendant had sold excess land from his share without having possession and entitlement

Suit was dismissed by the Trial Court which was upheld by the Appellate Court but High Court decreed the same and sale deed was cancelled

Validity

Neither family partition nor possession on the suit land had been proved by the plaintiff

When plaintiff was out of the possession, he should have sought relief of possession

Present suit under S. 42 of Specific Relief Act, 1877 was not maintainable in circumstances

Findings recorded by the Trial Court had rightly been maintained by the Appellate Court

High Court was not justified in calculating the share of plaintiff only from one Khewat while leaving the other Khewat

Whole holding in the village comprising of different Khewats while calculating share of plaintiff was liable to be taken into consideration

Co-sharer in possession of a specific field number could validly transfer suit land even though his share in such specific field number had exceeded his share provided it did not exceed his overall share in the total land

Revenue staff could not go beyond the decree and was bound to give effect to it unless same was set aside or varied by the competent Court

Document not brought on record of the Court in accordance with procedure could not be considered or accepted by the Court

Proper procedure for the party would be to apply for bringing the said document on record as an additional evidence

Impugned judgment and decree passed by the High Court were set aside and those of Courts below were restored

Appeal was allowed in circumstances.

Legacy of Muslim would be divided amongst his heirs according to Islamic Law even though he had died prior to the promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935

Share of female limited owner on termination of her limited interest was in terms of Islamic Law

Plaintiffs being legal heirs of deceased were entitled to get their shares in the legacy

Entitlement of plaintiffs was not only recognized by the law of the land but also by the Islamic Law which could not be extinguished by any mutation

Any co-sharer, in possession of joint property, should be deemed as holding the possession on behalf of all the co-sharers

No limitation would run against the co-sharer

Every successive wrong entry in the revenue record would give a fresh cause of action

No wrong entry could be legitimized with the efflux of time

No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed in circumstances.

Principles.

Principles.

Contention of plaintiff was that he was owner in possession of suit land on the basis of private partition and impugned sale deed was executed beyond fractional share of defendant

Suit was dismissed concurrently

Validity

If a co-sharer was in possession of a particular survey number then he could alienate that land validly to another person provided it did not exceed his overall share in the Khewat

Co-sharer could not transfer the land from a particular Khewat beyond his share in the relevant Khewat

Plaintiff and defendant were real brothers and co-sharers in the suit land

Impugned sale deed was executed in excess of share of the vendor/defendant which was not sustainable and was liable to be set aside to that extent

Both the Courts below had failed to appreciate the evidence in its true perspective

Impugned judgments and decrees were result of mis-reading and non-reading of evidence

Khewat being a different entity, its share could not be amalgamated and converted into the other Khewat

Vendor was not competent to transfer the land beyond his share in the relevant Khewat

One could not be allowed to transfer the land of other share co-sharers, whether they were in possession or not

Co-sharer would be deemed to be in possession of every inch of joint land

Findings recorded by the Courts below were not maintainable in the eye of law

Private and family partition would be recognized only when same was affirmed by a Revenue Officer

Nothing was on record that family partition took place and was affirmed by the Revenue Officer

No party could claim any exclusive right on the basis of such possession due to family partition

Family arrangement for the purpose of cultivation would be considered for the convenience of co-sharer

Any such arrangement did not oust and exclude the ownership of other co-sharers from the relevant Khewat

Co-owner could only be excluded from a particular survey number by way of regular partition or private partition affirmed by the Revenue Officer

Co-sharer even in exclusive possession of a specific property could not be permitted to alienate or transfer such property which might change its joint character or otherwise damage the right of other co-owners

Co-sharer could alienate only his share not beyond that

Impugned judgments and decrees were also set aside

Sale deed executed in excess of share of vendor/defendant was also set aside

Second appeal was allowed in circumstances.

Co-sharer was entitled to alienate or transfer his share in khata and deliver possession of property in his occupation/control.

Co-owners had the right in each and every inch of the property jointly owned by them irrespective of the quantum of their entitlement for possession over the same.

Co-sharer in exclusive possession of joint portion of property for a long period could not be dispossessed by another co-sharer except by filing a suit for partition.

Co-owner of an undivided property seeking injunctive relief could only seek the same with the formal partition of the said property

Co-owner on seeking the partition for the joint property would be able to obtain the determination of the respective share of each co-owner

Granting injunctive relief to one co-owner would amount to authorizing one of the co-owners to legally take possession of a valuable portion of the joint property which would frustrate the partition of joint property

When co-owner's right as co-owner of undivided property was denied, he might seek a declaration of his proprietary rights in the undivided property

Co-owner in such circumstances might first seek declaration with regard to proprietary shares in the joint property and after seeking such declaration he might seek partition along with other injunctive relief

If co-owner of undivided property was dispossessed, he might without seeking partition, prayed for possession under S.9 of Specific Relief Act, 1877 but not under S.8 of the said Act.

Co-sharer who was in exclusive possession of specified portion of joint property could not be dispossessed unless regular partition was affected.

When co-owner's rights in undivided property had been denied, violated or challenged then he might seek a declaration of his proprietary rights in the said property

Co-owner in such circumstances might first seek a declaration with regard to his proprietary shares in the joint property and after seeking the same he might further seek partition along with other injunctive reliefs

Where co-owner of undivided property had been dispossessed, he could without seeking partition thereof pray for possession.

Co-sharer could not file a suit for declaration and possession against the other co-sharer but a suit for partition could only be filed.

Co-sharer was entitled to alienate his/her share from a specific survey number provided quantity of land of survey number did not exceed his/her overall share in the khewat.

Contention of plaintiff was that defendant was co-sharer in the suit land who illegally and without partition wanted to snatch the possession of the said land

Suit was dismissed concurrently

Validity

Suit land was in the exclusive possession of defendant

Vendor/defendant had not alienated the land in excess of his share out of total suit property

Possession of vendor/defendant was on the specific land due to family arrangement

Family division even if admitted did not extinguish the title of other co-sharers

Possession and sale by the co-sharer would debar other co-sharers to get back such possession or challenge the instrument of alienation/sale

Such family arrangement would be subject to adjustment at the time of partition as would have been the case if vendor had not sold the land

No mis-reading or non-reading of evidence or misconstruction of law had been pointed out in the impugned judgments and decrees passed by the courts below

Appeal was dismissed in circumstances.

Every co-sharer would be deemed to be in possession of each and every inch of the property.

Principles.

Defendants had failed to bring on record the required evidence for establishing the factum of acquisition of rights through the impugned mutation

Neither any witness who had recognized the plaintiff in the common assembly nor any document had been produced by the defendants to infer that disputed mutation had been signed and attested by her

Bald statements of witnesses of defendants were insufficient to infer that mutation was executed by the plaintiff

No limitation would run against a co-sharer

Every fresh entry in the periodical record with regard to immovable property would give fresh cause of action

Wrong entries never conferred or deprived a person of his rights in immovable property

Strong, cogent and irrebuttal evidence was required to prove transfer of rights in immovable property and to deprive a person of his rights therein

Burden of proving the transaction would lie on the person who would be beneficiary of such transaction and same never shifted on aggrieved person

Express repudiation and ouster of rights should be proved through high standard of evidence which could not create a single dent in the smooth completion of such transaction which took away the right of pardanasheen lady

Adverse entry and non-participation in the profits of the property would not amount to an ouster of co-sharer

Wrong mutation conferred no right in the property

Revenue record was maintained only for the purpose of ensuring and realization of land revenue

Alleged gift was not gift in real sense but same was a kind of Mushaa as plaintiff allegedly had transferred her share in undivided property

Delivery of particular piece of land in such kind of gift was sine qua non for completion of the same through Mushaa and if in future the undivided property was partitioned, the gift would be considered as completed

Defendants had failed to prove that disputed mutation had been attested or effected by the plaintiff

Factum of possession would not deprive the plaintiff of her legal sharai share in the legacy

No illegality or irregularity had been pointed out in the impugned judgment

Revision was dismissed in circumstances.

Co-sharer in possession of joint property could alienate or transfer (i.e. by gift) his share in Khata and deliver possession of property in his control

Such share purchased by vendee would be subject to partition, and he could not claim exclusive possession till partition of joint Khata.

Legal heir would become co-sharer with others at the time of death of the propositus and no formal attestation of mutation was required.

Co-sharer in possession would be deemed to be in possession on behalf of all co-sharers.

Legal effect stated.

Limitation would not run against co-sharer.

Sale of such property by co-sharer to extent of his/her share therein could not be declared invalid on ground that vendee had changed its status from one category to another i.e. from agricultural to industrial purpose; and that such change would not debar vendee from using land in any manner as owner

Principles.

Every co-sharer in an un-partitioned Khata was owner of each and every inch of Khata.

Co-sharer in possession of specific property not beyond his share could protect his possession till taking place of partition in accordance with law.

Every co-sharer had interest in each and every inch of joint property, however no joint owner could change its character without first having the joint property partitioned; and could not be permitted to alter the character of property without consulting the other co-sharers.

Possession of legal heirs would be deemed to be that of their deceased predecessor.

Agreement of sale not finding mention of delivery of possession of specific Khasra numbers 'to vendee out of joint Khata

Vendee alleging his exclusive possession over such specific Khasra numbers under agreement

Validity

When property was joint and not partitioned, then fact of such exclusive possession of vendee could not be believed

Every co-owner/co-sharer would be considered to be in 'possession of each inch of unpartitioned land according to his share.

Every co-owner/co-sharer would be considered to be in possession of each inch of unpartitioned land according to his share.

When parties are co-heirs, then limitation will not run against co-heir.

In absence of plea of ouster-and its proof, possession of one co-sharer would not become adverse to other co-sharer not in actual possession

Principles. Every co-sharer or co-heir shall be deemed to be in possession of the joint estate or land, and similarly because any of the co-sharers, is not in an actual possession, the possession of other co-sharer, who is in possession, would not become adverse, unless a plea of ouster is taken and proved. According to law, the possession of those co-sharers, who are in possession will enure for the benefit of the co-sharers, who are not so in possession.

No evidence was available' of actual making of gift regarding which mutation was got attested. and that plaintiff did appear before Revenue Officer at the time of attestation of mutation of gift

Plaintiff had a son and no reason was available on record as to why she proceeded to gift away her entire land to defendant, who was her brother-in-law, when she had a son of her own and husband

Plaintiff was the owner of suit land and it had been found that gift was never made

Defendant was a co-sharer of plaintiff lady who was not residing in village in question and defendant was looking after her land

.Plaintiff was deemed to be in possession of each and every inch of suit land

Suit was not barred by time

High Court declined to interfere with the judgment and decree passed by Appellate Court

Revision was dismissed in circumstances.

Where a co-sharer is in possession of a specific piece of joint land, within the limits of his share in the joint holding, he can sell such specific land.

Such possession to all purposes would inure to benefit of remaining co-owners/co-sharers as well till such time partition was effected.

Co-sharer can make alienation to the extent of his share.

Question of possession would assume critical significance.

Sale by co-sharer to the extent of his share, would be valid.

Co-sharer who raises any construction on joint property without the consent of other co-sharers and without permission of the Court, is not entitled to any compensation and enhancement in value as such properly is for common advantages of all the co-sharers.

Every co-sharer in joint property would be considered owner in every inch thereof according to the ratio of his share therein.