Surendra Nath Biswas V.Birendra Nath

Facts in brief

The plaintiff and pro defendant no.2 was the grandson of Bhagban Bairgi.In the case, they were coparceners of an undivided Hindu property. After the death of their grandfather and the father they separated in mess. But nevertheless the homestead remained undivided in same plot-733. By mutual exchange pro defendant 2 possessed plots no.733 and the plaintiffs possessed plot no 740. As a result of enmity pro defendant 2 sold his interest to defendant 1 for harassment and fraudulent to plaintiff.

The court of  Munsiff  held that defendant no.1 was a stranger purchaser .The defendant made an appeal in appellate court. The appellate court dismissed the appeal.

Issues

Whether the property was transferred by the co-owner.

Whether the third person was entitled to purchase the disputed property in the instant suit. 

Rule of law

Sect.44 of Transfer of property Act, 1882.

Case citation

       1. Habibullah Patwari  vs. Pranbhalla Bahakta 

Application to the fact

In the instant case, the plaintiff and the pro-defendant no. 2 was coparceners. Section- 44 Transfer of property Act, 1882 lays down that whether the transfer of a share belong to an undivided family and the transferee was not a member of the family, nothing in this section will apply. 

This section is greatly applicable to defendant 1 as he was not a member of this family. Here the pro-defendant no.2 was in fraudulent side as he sold the interest to the defendant no. 1 with the intention of fraud with the paintiffs.

 Decision

It was held that the transfer was invalid. As the defendant was stranger purchaser, it enables the co share of an undivided homestead to restrain forcible entry. 

Conclusion 

When a property is sold which is of joint family, a stranger purchaser cannot entitled to buy  the property of a joint family without the consent of co-sharers.