Co-Sharer Cannot Be Bound By Passage Carved Out Without His Consent: Punjab & Haryana High Court Modifies Concurrent Decrees

"So long as the property remains joint and unpartitioned, declaration of a specific portion as an exclusive passage binding on a non-consenting co-sharer is not legally sustainable", In a significant ruling on the rights of co-sharers in joint and unpartitioned agricultural land, the Punjab and Haryana High Court has held that no specific portion of joint property can be declared an exclusive passage binding upon a co-sharer who was neither party to the transaction creating it nor consented to the arrangement. The Court simultaneously held that a sale deed executed by one co-sharer transferring his undivided share to another co-sharer cannot be declared void, even if the motivation behind the transfer is alleged to be collusive.

Justice Deepak Gupta, while partly allowing a Regular Second Appeal against concurrent findings of the Trial Court and the First Appellate Court, modified the decree below and directed that the final determination of all rights — including access — be made in partition proceedings.

Background of the Case

Land measuring 4 Bigha comprised in Khasra No. 141, village Three ke, Tehsil Ludhiana, was jointly owned in equal shares by Ram Singh, his brothers Mukhtiar Singh and Nirmal Singh, and their mother Smt. Basant Kaur. In 1984, Mukhtiar Singh, Nirmal Singh and Basant Kaur — acting through a General Power of Attorney — executed a series of registered sale deeds in favour of the plaintiffs-respondents, carving out plots of 1400 square yards each. While doing so, a strip of land measuring 4 Biswa 11 Biswansi was left as a passage to provide access to the purchased plots. The existence of this passage arrangement was further acknowledged in a compromise dated 11 August 1988.

However, Ram Singh — who was neither a vendor in the sale deeds nor a party to the compromise — was simultaneously a co-sharer in Khasra No. 141. In September 1988, Mukhtiar Singh and Nirmal Singh executed a fresh sale deed of the very passage strip in favour of Ram Singh, on the basis of which mutation was sanctioned in his favour. The plaintiffs alleged this was a collusive transfer designed to defeat their access rights and filed suit seeking a declaration of the passage and nullification of the sale deed. Both the Trial Court and First Appellate Court decreed the suit and held the sale deed void. The defendants appealed to the High Court.

Legal Issues and Arguments

The substantial question of law framed by the Court was: whether the courts below were justified in declaring a specific portion of joint and unpartitioned land as a passage and in holding the sale deed dated 29.09.1988 in favour of Ram Singh to be null and void, given the admitted position that the land remained joint and unpartitioned and that Ram Singh was a co-sharer.

Court's Observations and Judgment

On the Fundamental Incompetence of Courts Below to Declare a Specific Passage Over Joint Land

The Court unequivocally held that the concurrent findings of both courts below were legally unsustainable on the core question. Restating the settled legal position, Justice Gupta observed:

"A co-sharer in joint property is entitled to transfer his undivided share, and the transferee merely steps into the shoes of the vendor and becomes a co-sharer in the joint holding. However, no co-sharer can claim exclusive ownership or earmark a specific portion of joint land unless the property is partitioned by metes and bounds."

Applying this principle, the Court held that although the sale deeds in favour of the plaintiffs may validly convey the share of the vendors in the joint Khata, the vendees — who step into the shoes of their vendors as co-sharers — cannot claim that a specific portion of the joint land stands exclusively reserved as a passage binding upon another co-sharer who was neither party to the transaction nor consenting to the arrangement. The trial Court and First Appellate Court had both proceeded on the erroneous premise that the passage arrangement between some co-sharers could bind the non-consenting Ram Singh.

On the Validity of the Sale Deed Dated 29.09.1988 in Favour of Ram Singh

The Court held that the sale deed executed by Mukhtiar Singh and Nirmal Singh transferring their undivided share to Ram Singh could not be declared void. The legal position is clear: a co-sharer is legally competent to transfer his undivided share in joint property. The transferee — here Ram Singh — simply steps into the shoes of the vendors as a co-sharer. Whatever the motivation behind the transfer, the legal character of the transaction remained one of transfer of undivided share between co-sharers, which is entirely permissible. The Court set aside the declaration of nullity of the sale deed.

On Protecting the Plaintiffs' Possession and Access Pending Partition

While setting aside the passage declaration, the Court was equally careful to protect the equitable rights of the plaintiffs who had purchased land through registered sale deeds and had been in possession of their plots. The Court invoked the well-settled principle that each co-sharer in joint property is deemed to be in possession of every inch of the joint holding and is entitled to make reasonable use of the joint land so long as such use does not exclude the other co-sharers:

"The use of a particular portion of joint land for purposes of access cannot be restrained merely because the property remains unpartitioned."

Accordingly, the Court directed that the existing arrangement of using the disputed strip as access to the plaintiffs' plots shall continue without disruption until the joint property is formally partitioned. No exclusive or proprietary rights were to be created in favour of either party in the interim, and the entire question — including the question of access — was to be finally determined in partition proceedings.

On the Proper Forum and Remedy

The Court held that the disputes arising out of specific portions of joint property are ordinarily required to be resolved through partition proceedings. The plaintiffs were at liberty to seek partition of the joint property, and the competent Court at the time of partition would determine all rights of the parties including access to the respective portions falling to their shares.

The Punjab and Haryana High Court partly allowed the Second Appeal and modified the concurrent decrees of both courts below. The declaration of the suit property as an exclusive passage was set aside, and the sale deed of 29.09.1988 in favour of Ram Singh was held not to be void. Simultaneously, the possession of the plaintiffs over the land purchased through registered sale deeds was protected, and their existing user of the disputed strip for access was preserved pending partition. The ruling reaffirms that joint and unpartitioned property cannot be carved up by some co-sharers to bind others who have not consented, and that the appropriate forum for resolution of all such disputes — including questions of access — is the partition Court.

Date of Decision: 17 March 2026