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Smt. Annapurna and anr. Vs. Munshi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1267 of 1966
Judge
Reported inAIR1967All531
ActsUttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 153 and 166; Transfer of Property Act, 1882 - Sections 3 and 43
AppellantSmt. Annapurna and anr.
RespondentMunshi and ors.
Advocates:V.D. Singh, Adv.
DispositionAppeal dismissed
Excerpt:
.....cannot claim as transferees without notice of previous transfer. - - zamindari abolition and land reforms act is, therefore, not in conflict with section 48 of the transfer of property act just as section 6 of the transfer of properly act is not in conflict with it the result clearly is that the plaintiffs-respondents were entitled to the benefit of section 43 of the transfer of property act and the transfers in their favour operated as a transfer of the rights of a bhumidhar upon the acquisition of the rights of a bhumidhar by the transferors 2. the next contention on behalf of the defendants-appellants is that even if section 43 of the transfer of property act is applicable the defendants-appellants are protected because they are transferees in good faith for consideration..........in respect of a transfer made to contravention of section 153 of the u. p zamindari abolition and land reforms act, and the plaintiffs-respondents who are transferees under such atransfer got no rights in the land covered by the transfer even upon the subsequent acquisition by the transferors of the rights of a bhumidhar in the said land, which was held by them only as sirdars at the time of its transfer. in view of the decision of the supreme court in jumma masjid mercara v. k. deviah air 1962 s. c 847 which was followed by me in jagat narain v. laljee air 1965 all 504 this contention is plainly untenable it was urged by the learned counsel for the defendants-appellants that a transfer in contravention of section 153 of the u. p. zamindari abolition and land reforms act has been.....
Judgment:

Gangeshwar Prasad, J.

1. The main contention raised in this appeal on behalf of the defendants-appellants is that the benefit of Section 43 of the Transfer of Property Act is not available in respect of a transfer made to contravention of Section 153 of the U. P Zamindari Abolition and Land Reforms Act, and the plaintiffs-respondents who are transferees under such atransfer got no rights in the land covered by the transfer even upon the subsequent acquisition by the transferors of the rights of a Bhumidhar in the said land, which was held by them only as Sirdars at the time of its transfer. In view of the decision of the Supreme Court in Jumma Masjid Mercara v. K. Deviah AIR 1962 S. C 847 which was followed by me in Jagat Narain v. Laljee AIR 1965 All 504 this contention is plainly untenable It was urged by the learned counsel for the defendants-appellants that a transfer in contravention of Section 153 of the U. P. Zamindari Abolition and Land Reforms Act has been declared to be void by Section 166 of the said Act and the Supreme Court decision which dealt with a transfer not permitted by Section 6 of the Transfer of Property Act has no application to a transfer of the former kind- The argument overlooks the fact that transfers of all properties which have been made non-transferable by Section 6 of the Transfer of Property Act are void under Section 23 of the Contract Act just as all transfers which are void under Section 28 of the Contract Act have been prohibited by Section 6 of the Transfer of Property Act, and it does not therefore, make any difference that the transfer which was involved in the Supreme Court decision related to a property which was not transferable because of Section 6 of the Transfer of Property Act. A transfer in contravention Of Section 158 of the U. P. Zamindari Abolition and Land Reforms Act would be void under Section 28 of the Contract Act also, and Section 166 of the U. P. Zamindari Abolition and Land Reforms Act only embodies in the U. P. Zamindari Abolition and Land Reforms Act Itself what would be the legal position even in the absence of the latter provision. Section 166 of the U. P. Zamindari Abolition and Land Reforms Act is, therefore, not in conflict with Section 48 of the Transfer of Property Act just as Section 6 of the Transfer of Properly Act is not in conflict with it The result clearly is that the plaintiffs-respondents were entitled to the benefit of Section 43 of the Transfer of Property Act and the transfers in their favour operated as a transfer of the rights of a Bhumidhar upon the acquisition of the rights of a Bhumidhar by the transferors

2. The next contention on behalf of the defendants-appellants is that even if Section 43 of the Transfer of Property Act is applicable the defendants-appellants are protected because they are transferees in good faith for consideration without notice The transfer in favour of the plaintiffs respondents is by a registered deed and the lower appellate court has found that the plaintiffs respondents were in possession of the land in suit when the defendants-appellants obtained the subsequent deed In respect of it Having regard to the definition of 'notice', in Section 3 of the Transfer of Property Act the appellants cannot, therefore, be said to ho transferees without notice of the title which, at the time of the transfer in their favour the plaintiffs-respondents hadacquired by operation of Section 48 of the Transfer of Property Act.

3. No other point has been urged.

4. The appeal has no force and it is accordingly dismissed under Order 41 Rule 11 C.P.C.


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