Section 44 of T.P. Act | Co-owner Can Sell Undivided Share Without Consent of Others: Orissa High Court Slams Oral Refusal by Sub-Registrar to Register Sale Deed

“Any Executive Circular Restricting Co-owner’s Right to Sell Undivided Share is Non-Est” — In a significant ruling reinforcing the statutory rights of co-owners in joint properties, the Orissa High Court held that a co-owner has an inherent right to sell their undivided interest in a joint and undivided property, and the Sub-Registrar cannot refuse to register such sale deeds on the ground of absence of consent from other co-owners.

Justice A.C. Behera directed the Sub-Registrar, Khaira to accept and register the petitioner’s deed of sale and declared that any oral refusal to entertain such deed violates both the letter and spirit of the law.

“The Sub-Registrar Cannot Orally Refuse Registration — Must Act According to Law, Not Executive Whim”

The Court came down heavily on the oral refusal by the Sub-Registrar, Khaira to even receive the sale deed presented by the petitioner. The refusal was based on the reasoning that the petitioner, being a co-owner of the joint property, could not alienate his share without the consent of other co-owners.

Rejecting this rationale, the Court stated:

“The Sub-Registrar, Khaira... should not have refused orally to receive the deed for sale presented by the petitioner for registration and also should not have refused to register the said deed on the ground of alienation... without the consent of his co-owners.”

Referring to Section 71 of the Registration Act, 1908, the Court emphasized that a Sub-Registrar is empowered only to process, evaluate, and then either register or reject a document by passing a written order—not by oral diktat.

The Court cited with approval the judgment in North East Infrastructure Pvt. Ltd. v. State of Andhra Pradesh, (2025) 2 Civ CC 220 (AP), which ruled:

“The Sub-Registrar cannot orally refuse to receive the document... Section 71 of the Registration Act, 1908 empowers the Registration Authorities to receive a document... and thereafter, either register such sale deed... or pass a refusal order.”

“Section 44 of the Transfer of Property Act Gives Co-owner Inherent Right to Sell Their Share”

Central to the Court’s reasoning was Section 44 of the Transfer of Property Act, 1882, which expressly allows a co-owner or co-sharer in joint and undivided property to alienate their share or interest without requiring the consent of other co-owners.

The Court, quoting its earlier decision in Damodar Mishra v. State of Odisha [W.P.(C) No.4340 of 2025, decided on 03.04.2025], held:

“A co-sharer/co-owner has his/her inherent right to alienate his/her share/interest in the Joint and Undivided properties to the extent of his/her share... Any executive instruction or circular issued by any authority... restricting a co-owner to alienate his/her undivided share/interest... shall be deemed as non-est.”

Importantly, even if a specific portion of land is shown in the deed with boundaries, the law deems such alienation as a sale of the co-owner’s undivided share, not of a definite partitioned portion.

The judgment leaves no ambiguity in reaffirming the supremacy of statutory provisions over contrary executive circulars:

“Executive instructions and circulars have no applicability where statutory law governs the field.”

Sub-Registrar Must Accept and Act Upon Sale Deed

The Court issued clear, time-bound directions to the Sub-Registrar, Khaira:

“The Sub-Registrar... is directed to receive the deed for sale, if presented by the petitioner... even without the consent of his co-sharers (co-owners)... and shall act upon the same according to The Indian Registration Act, 1908 and The Orissa Registration Rules, 1988.”

Furthermore, once the registration is completed, the Sub-Registrar must return the registered sale deed to the petitioner within three days, complying with all formalities, in accordance with Rule 100 of the Orissa Registration Rules, 1988 and I.G.R. Notification No. 2915 dated 02.08.2017.

Judgment Affirms Property Rights, Restricts Bureaucratic Interference

This ruling not only upholds the legal position that co-owners can sell their undivided share without interference, but it also addresses a broader administrative malaise — arbitrary oral refusals by Sub-Registrars, often done without legal backing.

By reminding authorities of the limits of executive instructions and upholding statutory law, the Court sent a strong message:

“Because, as per Section 44 of the T.P. Act, 1882, he (petitioner) has his inherent right under law to sell his undivided share... without the consent of his co-owners.”

The decision is expected to serve as a precedent in similar cases where registering authorities create extra-legal hurdles in the execution and registration of sale deeds involving co-owned property.

Date of Decision: 19.09.2025