JUDGMENT Poonam Srivastava, J.
1. Heard learned Counsel for the appellant.
2. This is a second appeal challenging the order dated 22.12.1999, passed by the 1st Additional Civil Judge (Senior Division) Moradabad in Original Suit No. 600 of 1993 and confirmed in appeal by the Additional District Judge, Court No. 6, Moradabad, vide judgment and decree dated 23.9.2005.
3. The plaintiff instituted a suit for cancellation of the sale deed dated 30.3.1993, which was executed by the defendant Nos. 2, 3 and 4 in favour of the defendant No. 1. According to the version of the plaint, he claims to be owner in possession of the disputed property. Late Budh Sen was original owner of the property. According to the plaintiff, he had executed a Will on 10 4.1989 in his favour just six days before his death, therefore, the plaintiffs right was absolute on the basis of Will in exclusion to the other heirs/ defendants. The defendant No. 2 is mother of the plaintiff and it is alleged that she is mentally challenged person and is living with two sisters of the plaintiff, i.e., defendant Nos. 3 and 4 against his wishes. The sale deed executed by the respondent Nos. 2, 3 and 4 in favour of the defendant No. 1 is without any title over the property and only when he came to know from one Moti Yadav on 1.4.1993 about execution of the sale date, the suit has been instituted. The defendant No. 1, who had purchased the property filed counter-claim for decree of possession and alternatively for partition of the property in dispute. As many as nine issues were framed by the trial court. Issue No. 1 was whether the plaintiff is owner in possession of the disputed property and its effect. Issue No. 2 was whether Budh Sen executed Will regarding the property in favour of the plaintiff. Issue No. 2 was decided against the plaintiff and the trial court recorded an express finding that late Budh Sen had not executed any Will, paper No. 11A on 1O.4.1989. On issue Nos. 1 and 3, the trial court arrived at a conclusion that defendants are owner of the property and plaintiff is in possession. On the issue of question of partition, the trial court recorded a finding that there has been a family partition between the plaintiff and defendant Nos. 2, 3 and 4. Since, partition has already taken place there is no need for fresh partition. The share of the defendants were held to be half of the total property. On the basis of aforesaid finding, the suit of the plaintiff was dismissed and counter-claim of the defendant for possession over the property was decreed. This judgment was challenged in appeal vide Civil Appeal No. 2 of 2000. The lower appellate court has confirmed each and every finding and dismissed the appeal. I have gone through the judgment of the appellate court as well as trial court. Both the courts below have gone to the root of the matter, considering evidence and after threadbare analysis has confirmed the finding that no Will was executed by late Budh Sen in favour of the plaintiff. The sale deed executed by defendant Nos. 2, 3 and 4 is absolutely valid. Family partition has already taken place and, therefore, the suit was dismissed. Counsel for the appellant has argued two specific questions of law. Emphasis is on Section 44 Transfer of Property Act, which provides:
Transfer by one co-owner. -- Where one of two or more co-owners of immovable properly legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
4. In the instant case, two Courts recorded categorical finding of fact that partition has already taken place and plaintiffs share is only for half of the property. The lower appellate court has also recorded finding that the plaintiff/appellant has admitted his possession on northern part of the disputed property but the defendant No. 1 has set up his counter-claim, which has been allowed accepting that he was forcibly dispossessed from the disputed portion after he was put in possession by the defendant Nos. 2, 3 and 4 subsequent to execution of the sale deed. In the circumstances, when both the courts below have arrived at a conclusion that partition has already taken place long back and sale deed has been executed only in respect of share of defendant Nos. 2, 3 and 4, therefore, I am not inclined to accept argument of the counsel for the appellant. The provision of Section 44 Transfer of Property Act will be attracted only in a case where family is an undivided family and transferee has sold a share of the dwelling house. Since, counter-claim has been decreed by the trial court and confirmed in appeal. It is evident that the defendant Nos. 2, 3 and 4 had put defendant No. 1 in possession of their share, which is northern portion of the disputed property and the defendant No. 1 was dispossessed. In the circumstances, argument advanced on behalf of the appellant regarding joint possession is not acceptable. I do not find any illegality in the finding arrived at by the Courts below. The next argument advanced on behalf of the appellant is in respect of Section 23 of Hindu Succession Act, 1956, which provides where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the schedule and the property including dwelling-house wholly occupied by members of his family or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until male heirs choose to divide their respective shares therein ; but the female heir shall be entitled to a right of residence therein.
5. I have carefully examined provision of Hindu Succession Act, 1956. I am of the considered view that provisions are not attracted to fact of the present case and the plaintiff cannot derive any benefit on its basis. On the one hand, the plaintiff has set up his claim on the basis of Will but theory of the Will has been completely discarded by concurrent finding of the Courts below. Secondly, partition between the heirs of late Budh Sen has already taken place and finding of fact is recorded that partition has already taken place. Northern portion has been sold to the defendant No. 1 not only by daughters but also widow of late Budh Sen. The plaintiff claims that widow is mentally challenged person and, therefore, living separately has neither been proved by the plaintiff nor accepted by the courts below. In the circumstances, natural heirs of late Budh Sen had exclusive possession over half share of the property, which was subsequently sold to the defendant No. 1, who was put in possession. Counter-claim by the vendee defendant No. 1 was decreed and confirmed in appeal.
6. I have carefully examined finding on the respective issues and do not find any illegality whatsoever. There is no substantial question of law worth consideration. The second appeal lacks merit and is, accordingly, dismissed.