Co-Owner Can Sell Undivided Share in Joint Property Without Consent of Other Co-owners — Sale Deed Valid to Extent of Transferor's Share: Orissa High Court

" Unilateral deed of cancellation by the vendor is void and non-est in the eye of law", Orissa High Court has upheld the validity of a registered sale deed executed by a co-owner in respect of joint and undivided ancestral property, holding that Section 44 of the Transfer of Property Act, 1882 fully empowers a co-owner to alienate his undivided share without the consent of other co-owners — and that such a sale deed is neither void nor voidable.

Justice A.C. Behera simultaneously held that a vendor's unilateral attempt to cancel a duly registered sale deed is non-est in law and carries no legal value whatsoever.

Background of the Case

The dispute arose from a registered sale deed No. 408 dated 05.02.1996, by which Manguli Sahu (defendant No. 1), a co-owner of ancestral Bari and Gharabari land, purportedly sold the suit properties in favour of Sanjukta Sahu (defendant No. 3), who was the wife of his son Bhagaban Sahu (defendant No. 2). The plaintiff, Joginath Sahu — another son of Manguli Sahu — filed a suit for declaration, alleging that his father had an imbalanced mind, that defendant No. 2 had managed the execution through fraud and misrepresentation, that no consideration was paid, and that the deed was executed without the knowledge of defendant No. 1.

Significantly, defendant No. 1 himself supported the plaintiff's case and stated in his written statement that he had signed what he believed to be a power of attorney. He subsequently executed a registered deed of cancellation bearing No. 148 dated 13.01.1997, purporting to cancel the sale deed.

The Trial Court dismissed the suit, holding that fraud had not been pleaded and proved, that the sale deed validly conveyed title to defendant No. 3, and that since the properties remained joint and undivided, the plaintiff's remedy lay in seeking partition — not a bare declaration under the proviso to Section 34 of the Specific Relief Act. The First Appellate Court reversed this, declaring the sale deed void on the ground that defendant No. 1 had "a fickle mind" and had cancelled the deed. Defendant No. 3 appealed to the High Court in the present second appeal.

Legal Issues

Two substantial questions of law were framed on admission: whether the First Appellate Court's finding that the sale deed was void — without recording any specific finding on fraud and misrepresentation — was legally tenable; and whether the First Appellate Court had committed an error of record and approached the issue in a perverse manner. Both questions were answered in favour of the appellant.

Court's Observations and Judgment

On the Unilateral Deed of Cancellation — Non-Est and to be Ignored Altogether

The Court dealt first with defendant No. 1's registered deed of cancellation, which the First Appellate Court had treated as a significant piece of evidence justifying the voiding of the sale deed. The High Court rejected this approach entirely, holding the cancellation deed to be non-est in the eye of law.

Relying on the Supreme Court's ruling in Thota Ganga Laxmi v. Government of Andhra Pradesh (2010) 15 SCC 207, the Court held that cancellation of a sale deed by the executant unilaterally is wholly void and non-est and can be ignored altogether. The Supreme Court had further observed that there was no need even to approach a civil court against such a cancellation deed, as its very existence carried no legal weight.

The Court further drew from the Supreme Court's ruling in Satya Pal Anand v. State of Madhya Pradesh (2016) 10 SCC 767, which had authoritatively settled that there is no express provision in the Registration Act, 1908 empowering the Registrar or Sub-Registrar to recall or cancel a 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."

The Court also relied on the Uttarakhand High Court's ruling in M/s. V.Marc India Limited v. Jaan Illahi (2025), which had held that unilateral cancellation by the executant on the ground of instability of mind was not a valid ground for cancellation of a duly registered document.

Applying these principles, the Court excluded the deed of cancellation entirely from consideration. "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."

On Execution With Knowledge — When Realisation of "Mistake" Itself Proves Execution

The First Appellate Court had relied on defendant No. 1's claim that he executed the deed believing it to be a power of attorney. The High Court turned this argument on its head with a simple but devastating logical observation: the very fact that defendant No. 1 subsequently realised his "mistake" and proceeded to execute a deed of cancellation established, beyond doubt, that the original sale deed had been executed with his intention and knowledge.

The plaintiff himself, as P.W.1, had deposed that when defendant No. 1 "realised the mistake regarding the execution of the impugned sale deed," he then executed the deed of cancellation. The Court found this to be a fatal admission. "When the defendant No.1 realised that he has committed a mistake executing the sale deed subsequent to its execution and registration, he cancelled the same through the deed of cancellation vide Ext.A. As such, the execution of the sale deed by defendant No.1 in favour of defendant No.3 with the intention and knowledge of defendant No.1 is established."

On the First Appellate Court's Reasoning — Perverse and Legally Untenable

The First Appellate Court had declared the sale deed void on the sole ground that defendant No. 1 had a "fickle mind" and had subsequently cancelled the deed — without addressing the core allegation of fraud and misrepresentation at all. The High Court found this reasoning to be legally perverse. A finding of "void" on the basis of the executant's cancellation — when that very cancellation was itself non-est in law — could not be sustained. "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 untenable."

On the Power of a Co-owner to Sell — Section 44 TPA

The Court then addressed the foundational question of whether defendant No. 1, as a co-owner, had the legal authority to execute the sale deed at all. Surveying an extensive body of precedent from the Supreme Court and various High Courts, the Court held that Section 44 of the Transfer of Property Act, 1882 grants a co-owner clear and unconditional power to alienate his undivided share in joint properties — without the consent or acknowledgement of other co-owners. Such a sale deed is neither void nor voidable at the instance of other co-owners.

Citing the Supreme Court's recent ruling in Sk. Golam Lalchand v. Nandu Lal Shaw (2024 SCC OnLine SC 2456) and Gangu Bai Raghunath Ayare v. Gangaram Sakharam Dhuri (2025), the Court held that where joint properties remain undivided, a co-owner's right to transfer is limited to his own share — and not beyond. The vendee obtains a joint interest in the properties without entitlement to any specific portion until partition takes place between co-owners.

Even where a co-owner purports to sell a specific portion of joint property or purports to sell more than his share, the transaction remains valid to the extent of his actual interest, and only to that extent. "Even if a co-owner sells a specific portion of the joint and undivided properties or sells the entire joint suit properties in excess of his share, still then, it will be held as per law that he has transferred only his interest in the suit properties and the said sale deed shall remain valid to the extent of the share of the vendor."

The Court accordingly held that the sale deed was valid to the extent of defendant No. 1's undivided share in the suit properties, and that defendant No. 3 — the vendee — was entitled to a joint interest in the suit properties without any specific portion, until partition.

On the Plaintiff's Remedy — Partition, Not Declaration

The Court affirmed the Trial Court's additional ground for dismissal of the suit. Since the suit properties were joint and undivided ancestral properties, and the plaintiff had not sought partition, a mere declaration that the sale deed was void was not available under the proviso to Section 34 of the Specific Relief Act, 1963. The plaintiff's remedy lay in seeking partition of the joint properties — a step he had consciously avoided.

The second appeal was allowed. The First Appellate Court's judgment and decree dated 30.06.2005 and 12.07.2005 were set aside. The Trial Court's judgment and decree dated 03.01.2003 and 21.01.2003 dismissing the plaintiff's suit were confirmed. The sale deed No. 408 dated 05.02.1996 was held valid to the extent of defendant No. 1's share in the joint suit properties.

Date of Decision: 10.04.2026