KALLU Vs. GULZARI SINGH AND OTHERS

JUDGEMENT

(1.) Gulzari Singh, defendant respondent No. 1 had a money decree against Wazir, in execution of which one -fourth share in certain agricultural land was sought to be attached. Kallu appellant and Smt. Niazan, respondent No. 3 filed objection on the ground that the land sought to be attached had been transferred to them and was owned by them. The objection was dismissed. A suit for declaration was then filed that he along with Niazan was the owner of the property under the sale deed dated 21 -6 -1960 and as such the property was not liable to be attached and sold in execution of the decree of Gulzari Singh. The suit was contested by the defendant respondent on the ground that the sale deed by Wazir and his co -sharers was executed in favour of Kallu during the continuation of the Consolidation proceedings without the permission of Settlement Officer (Consolidation) and as such it was null and void. The sale deed was also challenged on the ground that it was a sham transaction. Issue No. 3 was made the preliminary issue and was to the following effect:

(2.) From the record it is clear that Wazir, Majeed and Abdul Aziz were allotted one Chak which they transferred by a registered sale deed dated 21 -6 -1960 to Kallu and Smt. Niazan. S. 5 of the Consolidation of Holdings Act on which reliance has been placed by the court below restricts the transfer of the part of a holding in consolidation area without the permission of Settlement Officer (Consolidation). As remarked by the Division Bench of this Court in Ram Behari Shukla v/s. Munna Lal Shukla (1968 ALJ 223), part of holding cannot be described as entire holding. The case relied upon by the court below has been dissented by the Division Bench of this Court. The courts below, therefore, were not correct in saying that the transfer in favour of Kallu and Smt. Niazan was hit by S. 5 of the Consolidation of Holdings Act.

(3.) Learned counsel for the respondent has contended that the transfer being a transfer of the shares, it will be hit by S. 5 of the U.P. Consolidation of Holdings Act. It is not disputed that the Chak belonged to Wazir, Majeed and Abdul Aziz, in which Wazir had one -fourth share and 3/4th was held by his other brothers. No specific plot or portion of the Chak was transferred to Kallu and Niazan. Kallu and Niazan's share alone was defined in the Chak that was transferred to them. The transfer, therefore, would be the transfer of one Chak by a body of co -sharers to another body of co -sharers. U/S. 3(4 -C) of the Consolidation of Holdings Act, "holding" means a parcel or parcels of land held under one tenure by a tenure -holder singly or jointly with other tenure -holders. There can, therefore, be no restriction in transferring a holding held jointly by a number of tenure -holders to a number of transferees jointly. The position would be that the transferees would become the joint tenure -holders of the land purchased by them. The contention of the learned counsel for the respondent, therefore, that the transfer being to more than one tenure -holder in specific shares is hit by S. 5(c)(ii) has no force.