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Mahendra Singh Vs. Attar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 2104 and 2105 of 1964
Judge
Reported inAIR1967All488
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101; Hindu Law; Tenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 152, 161, 169, 171, 172, 173 and 175
AppellantMahendra Singh
RespondentAttar Singh and ors.
Appellant AdvocateH.C. Sharma and ;Swami Dayal, Advs.
Respondent AdvocateB.L. Yadav, Adv.
DispositionAppeal No. 2105 of 1964 partly allowed and Appeal No. 2104 of 1964 dismissed
Excerpt:
.....- hindu law - sale deed executed by adoptive father without legal necessity and consideration - sale deed liable to be set aside - joint family property only in case of legal necessity and not otherwise. (iii) tenancy - transfer of 'bhumidari' right - sections 152, 161, 169, 171 to 173 and 175 of u. p. zamindari abolition and land reforms act, 1951 - transfer of 'bhumidari' right without legal necessity - held, 'bhumidari' rights are special rights governed by provisions of act and can be transferred without legal necessity. - - zamindari abolition and land reforms act clearly gives a right to a bhumidhar to transfer his interest, there is no reason to hold that in this case jeet singh could not transfer his interest in the bhumidhari property in favour of mahendra singh by means..........connected appeals both arising out of two suits filed by attar singh against mahendra singh and jeet singh referred to this bench by a learned single judge. both the suits nos. 145 of 1954 and 333 of 1964 were heard together. the former suit no. 145 of 1954 was treated as the main suit. the allegation of the plaintiff was that the sale deed executed by his adoptive father jeet singh in favour of mahendra singh was without legal necessity, without consideration and was in respect of the joint family property in which he was also interested as the adopted son and the sale deed was, therefore, invalid. there were proceeding under section 146, cr p.c. and the agricultural plots and their crop had been attached in criminal proceedings. the second suit was, therefore, filed for a.....
Judgment:

B. Dayal, J.

1. These are two connected appeals both arising out of two suits filed by Attar Singh against Mahendra Singh and Jeet Singh referred to this bench by a learned Single Judge. Both the suits Nos. 145 of 1954 and 333 of 1964 were heard together. The former suit No. 145 of 1954 was treated as the main suit. The allegation of the plaintiff was that the sale deed executed by his adoptive father Jeet Singh in favour of Mahendra Singh was without legal necessity, without consideration and was in respect of the joint family property in which he was also interested as the adopted son and the sale deed was, therefore, invalid. There were proceeding under Section 146, Cr P.C. and the agricultural plots and their crop had been attached in criminal proceedings. The second suit was, therefore, filed for a declaration that the attached property, namely, the crop belonged to the plaintiff and was liable to be released in favour of the plaintiff. The defence taken to both these suits was that Jeet Singh had a right to sell the property, that there was legal necessity and there was valid consideration for the sale it was also denied that the plaintiff was an adopted son of Jeet Singh. The trial court after hearing both the suits, came to the conclusion that the sale deed was for legal necessity and consequently the house, the gher and half of the agricultural bhumidhari land which belonged to Jeet Singh were validly transferred by the sale deed. But the court held that half of the bhumidhari property could not be sold by Jeet Singh as it was the share of the plaintiff Attar Singh and Jeet Singh had no right to sell it The court also found that possession of the agricultural plots had been handed over to Mahendra Singh, the transferee oven before the sale was executed and consequently the crop grown upon these plots belonged to the transferee and the plaintiff had no right to it. On these findings, the trial court decreed suit No. 146 of 1954 only to the extent of the half of the bhumidhari property and dismissed the rest of the plaintiff's claim in that suit, and dismissed suit No. 333 of 1954 Against that decision, the plaintiff filed two appeals, appeal No. 165 of 1963 against the decision in suit No. 145 of 1964 refusing to set aside the sale in respect of the house, the gher and half of the bhumidhari property and appeal No. 150 of 1963 against the dismissal of his suit No. 333 of 1954. The defendants filed appeal No. 180 of 1963 against that part of the derision in suit No. 146 of 1954 by which the sale deed was set aside to the extent of half of the bhumidhari property. The learned Civil Judge heard all the three appeals together and framed three points for its decision. The first was whether Attar Singh was the adopted son of Jeet Singh and on this he came to the conclusion feat he was the adopted son. This was the concurrent finding by both the courts below and has not been challenged before us in Second Appeal. Nothing more need be said about that matter now.

2. The second point considered by the tower appellate court was whether Attar Singh could get the whole sale deed executed by Jeet Singh in favour of Mahendra Singh set aside. On this point, the lower appellate court found that there was no legal necessity for the sale and that the bhumidhari property also was the joint family property and in the absence of legal necessity no part of it could be transferred by Jeet Singh. He, therefore, set aside the whole of the sale deed. The third point considered by the lower appellate court was whether the plots in suit were given in the possession of Mahendra Singh, the transferee so that the crop in dispute for Rabi 1361 F was sown by him. On this point the court found that possession had not been transferred to the transferee and the crop was, therefore, not sown by him. On this ground suit No. 333 of 1954 was also decreed. Against that decision of the, lower appellate court, two appeals have been filed by Mahendra Singh, thee transferee in the two suits.

3. After hearing learned counsel for both the sides, we have come to the conclusion as said above that the question of adoption cannot he challenged in Second Appeal because there is no question of law raised and it must be accepted that Attar Singh plaintiff was the adopted son of Jeet Singh transferor. The finding of the lower appellate court that the sale deed was without any legal necessity must also be accepted. The lower appellate court found that out of the consideration mentioned in the sale deed, a sum of Rs. 3,200 which was paid before the Sub-Registrar, had certainly passed as consideration at the time of the sale deed. It did not accept the other part of the consideration having been paid and this part of the judgment also cannot be challenged in Second Appeal. The result of this finding is that there being no legal necessity for the sale, the property which was the joint family properly at the time of the sale could not be validly transferred, The house properly and the gher were therefore validly held to be not transferable by the lower appellate court The question then arises whether the lower appellate court was right in holding that the bhumidhari rights were also joint family property and could not be transferred without Proof of legal necessity. The lower appellate court has observed as follows in order to hold that the bhumidhari property was also the joint family property:

'In this case admittedly the plots were in the tenancy of Jeet Singh. If he had simply made an adoption and did nothing else beyond that, probably if could be held that tenancy remained with Jeet Singh with no interest of Attar Singh in the same, but the circumstances of the case show that Jeet Singh treated the property as joint family property. Those plots were in the tenancy of Prem Mahavidyadaya Zamindar and after the adoption in 1944. ...... an application was moved by Jeet Singh to have the name of Attar Singh recorded over the plots. By an agreement between the Zamindar and the parties, the name of Attar Singh was recorded, vide copy of compromise dated 31-8-1948 Ex. V and the order dated 3-9-1948 Ext. VI'

Upon this fact, the lower appellate court has considered that because the plaintiff. Attar Singh was made a co-tenant with Jeet Singh in the tenancy plots and therefore, when the bhumidhari rights were acquired subsequently by depositing ten times the annual rental and on passing of the U. P. Zamindari Abolition and Land Reforms Act, these bhumidhari rights so acquired must be held to be joint family properly In the first place these facts above are insufficient to lead to that conclusion.

Moreover, we are of the opinion that the bhumidhari rights are special rights created by Act I of 1951 and these new rights are solely to be governed by the provisions of the Act. The notions of Hindu Law or Mohammedan Law which would be applicable to other property not governed by any special law cannot be imported into the rights created by this Act.

4. By Section 152 of the U. P Zamindari Abolition and Land Reforms Act, rights of a bhumidhar are transferable and this power of transfer is only subject to the provisions of this Act. The section is as follows:--

'152. The interest of a bhumidhar shall be transferable subject to the conditions hereinafter contained in this chapter.'

Thus the rights of a bhumidhar can be transferred and no restrictions are imposed upon those rights to transfer beyond those mentioned in the chapter of the Act. If the property is treated to be joint family property governed by the notions of Hindu Law, then a bhumidhar will not be able to transfer his interest unless he proves legal necessity and will not be able to make a gift of his property. This would curtail the right given by Section 152. Moreover, under Section 151 of the Act, a bhumidhar can make an exchange of his bhumidhari rights with other rights Under Section 169 of the Act, a bhumidhar can make a with of his holding or any part thereof except as provided by Sub-section (2), which curtails the right to make a with only in the case of a bhumidhar who has got those rights by inheritance as a widow, widow of a male lineal descendant m the male line of descent, mother, laughter, father's mother, son's daughter, sister, or half-sister being the daughter of the same father as the deceased. Thus except these female heirs mentioned in Sub-section (2) every other bhumidhar has a right to bequeath his interest by will. Sections 171 to 173 then lay down a special mode of succession which is wholly inconsistent with the rights of a coparcener in the property. Section 176 provides for the right by survivorship only in respect of co-widows and co-tenure-holders, who die without any heir under the Act. It is, therefore, clear that under the Act the principles of co-parcenery property are not applicable to bhumidhari rights. This view is supported by the observations of this Court in Ramji Dixit v. Bhrigunath, 1964 All. L.J 197 : (AIR 1965 All. 1 (F.B.)), The question in that case was whether a female bhumidhar who either acquired rights by inheriting tenancy rights before the passing of the Act and then became a bhumidhar or inherited the bhumidhari property after the passing of the Act could make a transfer of the property which would enure to the benefit of the transferee even after the death of transferor and it was held that the notions of Hindu law or Mohammedan law should not be imported into the interpretation of the Act as it is equally applicable to persons governed by any personal law If a Mohammedan or a Christian's 'widow could absolutely transfer the property inherited by her, there was no reason to hold that a Hindu widow could net do so. On the same principles, since Section 152 of the U. P. Zamindari Abolition and Land Reforms Act clearly gives a right to a bhumidhar to transfer his interest, there is no reason to hold that in this case Jeet Singh could not transfer his interest in the bhumidhari property in favour of Mahendra Singh by means of a sale deed, unrestricted by any consideration of legal necessity etc.

5. In the result, we partly allow appeal No. 2105 of 1964 arising out of suit No. 145 of 1954 and hold that the sale deed executed by Jeet Singh in favour of Mahendra Singh is valid only to the extent of half share in the bhumidhari property held by Jeet Singh and dismiss appeal No. 2104 of 1964 in view of the findings of the lower appellate court that Mahendra Singh had no possession over the plots of land and be could not have sown the crops which were attacked by the criminal court and is, therefore, not entitled to those crops Parties will bear their own costs in these appeals.


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