MITHLESH KUMARI Vs. FATEHBAHADURSINGH

JUDGEMENT

(1.) This appeal is from the Judgment of the Allahabad High Court dated 27-10-1980 in Second Appeal No. 567 of 1973 allowing the appeal and decreeing the suit of the first respondent for specific performance of contract dated 5-4-1966, wherein it was stipulated that the defendant No. 1 (second respondent) had executed a fictitious sale deed dated 2-9-1966 for Rs. 1,000/- in favour of defendant No. 2 Kalawati, in respect of half of the suit chak and another sale deed dated 21-12-1966 for Rs. 2,000/- in favour of defendant No. 3 Mithlesh Kumari. Accordingly the plaintiff (first respondent) prayed for directing the defendants 2 and 3 (appellants herein) to execute the required sale deed in case it was not possible for the Court to get it executed by defendant No. 1.

(2.) The first respondent Fateh Bahadur sued the second respondent Jang Bahadur and the appellants in O.S. No. 278 of 1970, for specific performance of his contract whereunder the second respondent Jang Bahadur had agreed to sell his chak No. 249 admeasuring 10 bighas, 12 biswas and 10 biswansis to the first respondent for Rs. 5,000/- out of which Rs.4,000/- were paid and the balance Rs. 1,000 to be paid within 5 years whereafter second respondent Jang Bahadur was to execute a sale deed in favour of the first respondent Fateh Bahadur. The Court of Munsif, Fatehpur decreed the suit only for recovery of Rs.4,850/- plus pendente lite and future interest on Rs.4,000/-. Fateh Bahadurs appeal therefrom having been dismissed by the Civil Judge he preferred second appeal No. 567 of 1973 in the High Court of Judicature at Allahabad, contending that the transfers in favour of defendants Nos. 2 and 3, the appellants herein, by Jang Bahadur were in contravention of the provisions of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) hereinafter referred to as the Act, and thus were void and that the view taken by the lower Court that the title of Jang Bahadur came to an end since void transfers were made in favour of appellants Kalawati and Mithlesh Kumari, and thus, Jang Bahadur was no longer the holder of any title which could be conveyed to Fateh Bahadur was erroneous in law. Reliance was placed on a decision of the High Court in Parmanandv. Board of Revenue, U. P., Allahabad reported in 1966 ALJ 963. The defendants 2 and 3 who are appellants herein, contended that the two transfers made by Jang Bahadur in their favour were not hit by the provisions of Section 168-A of the Act inasmuch as the transfers were of a portion of the shares of Jang Bahadur in the plot in dispute. It was urged that for a transfer being hit by provisions of Section 168-A of the Act the same should be in respect of a specific piece of land and not a share in a holding. Reliance was placed on a decision of the same High Court in Bibhuti vs. Kashi Ram, 1977 AWC 491.

(3.) It was not disputed that the area of land transferred under the two sale deeds in favour of appellants Kalawati and Mithlesh Kumari amounted to fragments under the Act. The High Court considered the question as to whether a transfer which had been made not of the entire share of a tenure-holder in a holding but of a fragment would be hit by the provisions of Section 168-A of the Act and took the view that the two transfers made in favour of Kalawati and Mithlesh Kumari were clearly hit by the provisions of Section 168-A of the Act in view of the provisions of sub-clause (2) of that section and that the benefit of Section 43 of the Transfer of Property Act could be availed of by Kalawati and Mithlesh Kumari only if the sale deeds executed in their favour could be looked into and as those sale deeds were void in the eye of law it would be presumed as if no legal transfer took place in their favour and there being no legal transfer no question of applicability of Section 43 of the Transfer of Property Act arose. As Jang Bahadur executed the agreement of sale in favour of Fateh Bahadur and as the sale deeds in favour of Kalawati and Mithlesh Kumari were held to have been void, Fateh Bahadur, according to the High Court, was entitled to a decree of specific performance against Kalawati and Mithlesh Kumari on payment of Rs. 1,000/- within a period of 2 months from the date of receipt of the, record in the trial Court failing which the Court would execute the sale deed in favour of the plaintiff. The appeal was accordingly allowed and the suit decreed as above,