BADRI SINGH Vs. RAM SAJIVAN

JUDGEMENT

(1.) These two second appeals arise out of a common judgment of the District Judge, Fatehpur disposing of two appeals in respect of decrees passed in two separate suits relating to the same property. They were heard together and are, consequently, being disposed of by a common judgment. Some agricultural plots belonged to one Dwarika who was the bhumidhar thereof. After the death of Dwarika, his daughters, Sampatiya and Raj Kumari, were the only beirs. These daughters got the names of their own sons recorded over the property as bhumidhars, the succession to the property being governed by U. P. Act No. 1 of 1951 notwithstanding. On March 20, 1967, the four sons of Sampatiya sold their 4/5th share in the property to Badri Singh and transferred possession to him. Two of these sons, namely, Shiv Govind and Shiv Prakash were minors and while executing the transfer-deed, their brother Anant acted as their guardian. It is, however, not in dispute that there was no order of any Court appointing him to be the guardian or permitting the sale of their share to be made. This deed contained a condition enabling the vendors to re-purchase the property if, within a period of six years, they paid to Badri Singh the amount of con sideration. On July 24, 1968, that is, within the stipulated period for re-conveyance, Raghuraj, the other major son of Sampatiya, purporting to be the guardian of these two minors, together with the surviving son of Raj Kumari, the other daughter of Dwarka, executed a transfer-deed in favour of Sidhnath, Shiv Bhushan, Nandlal and Smt. Kuriha. In this deed, they purported also to assign the right of re-conveyance reserved by the vendors themselves in the earlier deed dated March 20, 1967. After the deed of July, 1968 Badri Singh instituted suit No. 338 of 1968 seeking the relief of permanent injunction restraining the vendors as well as Sidhnath and others, the subsequent transferees, from interfering with his possession over the property in suit. It appears that during the pendency of the suit, the plaintiff was forcibly dispossessed so that, by amendment, relief of recovery of possession was also sought by him. Sidhnath and others also filed a suit impleading therein Badri Singh as the first defendant. This was a suit where in the relief of specific performance of the contract of re-conveyance was sought by them as transferees of that right from the vendors. The suit was founded upon the plea that as provided in the deed dated March 20, 1967, the vendors or a transferee from them was entitled to seek conveyance of the property within the stipulated period of six years. As transferees from the vendors, the plaintiffs were entitled to seek re-conveyance. The trial Court, which tried the suits together, came to the conclusion that in pursuance of a valid deed of transfer Badri Singh had been put in possession over the property by the vendors and had been illegally dis possessed during the pendency of the suit. He was, consequently, entitled to recovery of possession to the extent of 4/5th share in the property which had been purchased by him. Further, that the defendants were liable to be restrained from interfering with his possession. It also took the view that so far as the transfer of the right of re-purchase was concerned, it was valid only to the extent of 2/5th share of the major brothers Anant and Raghuraj. Sidhnath and others were, therefore, entitled to a decree for specific performance of the contract of re-conveyance to that extent. So far as the share of the minor brothers, namely, Shiv Govind and Shiv Prakash was concerned, no transfer could have been made thereof by the major brothers who had not been appointed their guardian by the Court nor had been permitted to make that transfer. As such, the subsequent purchasers could not be said to have acquired any right of re-conveyance in respect of that 2/5th share which related to the minors. No decree for specific performance could, thus, be passed in regard to that share. The ultimate decree of the trial Court, therefore, directed specific performance of the contract of re- conveyance in favour of Sidhnath and others, plaintiffs in the subsequent suit, to the extent of 2/5th share in the property. The decree enabling recovery of possession by Badri Singh related to 4/5th share and Badri Singh was, in turn, directed also to deliver possession, if necessary, of 2/5th of the property if a sum of Rs. 1250/- relateable to that share was paid to him in terms of the original agreement. Sidhnath and others assailed the decree passed by the trial Court in two separate appeals. They challenged the decree passes in favour of Badri Singh in the result filed by him and also that part of the decree which denied them specific performance of 2/5th share in the property in their own suit. The lower appellate Court, as is clear from its judgment, was of opinion that the transfer of the share of the minor brothers in favour of Badri Singh as well as in favour of Sidhnath and others was not void but was voidable. It was also of the view that Badri Singh was not entitled to impugn the transfer of the right of re-conveyance in favour of Sidhnath and others of the minor's share in the property for he had obtained the transfer of their share himself in the like manner, that is, through a deed of transfer executed by a major brother acting as de facto guardian without obtaining any permission from the Court or without his appointment as guardian. It felt that Badri Singh was estopped from assailing the transfer of the minor's share in favour of Sidhnath and others and on that ground he was not entitled to resist a demand for specific psrformance of the agreement of re-conveyance in respect of their share. On its view in this regard, the lower appellate Court decreed the suit of Sidhnath and others for specific performance of the agreement of re-conveyance to the extent of 4/5th share in the property. This was made subject to deposit by Sidhnath and others of the entire sum mentioned in the deed dated March 20, 1967 failing which the suit of Badri Singh was to stand decreed for possession over 4/5th share of the property. Badri Singh has assailed the decree passed by the lower appellate Court in these two appeals. His case is that, inasmuch as, the transfer made in his favour by the four brothers, including the share of the minor brothers, had not been assailed by the minors and the vendors having put him in possession of the property transferred to him, he was entitled to a decree for an injunction restraining subsequent transferees from interfering with it. Further, that the view of the lower appellate Court that he was not entitled to resist the decree for specific performance of the contract of re-conveyance on the principle of estoppel was also erroneous. The case, as presented in this Court, of Sidhnath and others is that the vendors having submitted to the decree passed by the lower appellate Court in their favour it was not open to the earlier transferee. Namely Badri Singh to assail it particularly when he was himself claiming title to the property through a transfer made in the like manner by the same vendors. Also, that the transaction was not void as felt by the trial Court but was only voidable as held by the lower appellate Court which having not been avoided by the minors or attaining Majority in the years 1972 and 1974, became final in their favour. The decree for specific performance was sought only against Badri Singh who could not resist it on the ground that the transfer of the share of the minors in favour of the subsequent vendees was void. It is not in dispute that the property in suit is bhumidhari and is governed by the provisions of U. P. Zamindari Abolition and Land Reforms Act (U. P. Act No. 1 of 1951 ). Also, that succession to the property is regulated by the provisions of that Act. Further, that neither Anant nor Raghuraj, the two major brothers who purported to transfer the share of the minors as their guardian, had not been appointed as such. From the material on record, it is also clear that psrmission to transfer the share of the minors was not obtained from the Court competent to do so. In Mohammad Sohrab Khan and others v. Deputy Director of Consolida tion (1970 A. L. J. 288) this Court held that the provisions of U. P. Act No. 1 of 1951 would be applicable, and the principles of a Hindu Law, in respect of Bhumidhari land and further that a de facto guardian of a Hindu Minor was under a prohibition in the matter of disposal of the property of a minor for any reason whatsoever by virtue of Section 11 of the Hindu Minority and Guardianship Act, 1956 R. L. Gulati, J. who decided that case, inter- alia, observed (in para graph 6 of the Report) that "in the present case, the mother of the minors was alive and she being the natural guardian was alone competent to execute the sale-deed on their behalf. As it is, the property has been transferred by the brother of the minors, who purports to have acted as their de facto guardian. Section 11 of the Act makes such a transfer absolutely void. . . . . . . . . ". In view of the provisions of Section 11 of the Hindu Minority and Guardianship Act, 1956, the transfer of the share of the minor brothers by their major brothers, acting as de facto guardians, was void. It is obvious therefore, that neither Badri Singh nor Sidhnath and others ever came to acquire any interest, by virtue of the transfers made in their favour on March 20, 1967 and July 26, 1968, in the share of the minor brothers. The suit of Badri Singh is founded upon the right acquired in respect of 4/5th share in the property by virtue of the transfer made on March 20, 1967 in his favour. That transfer could only ensure for the benefit of Badri Singh in so far as it related to the share of two major brothers, namely, Anant and Raghuraj. Both the major brothers, according to the facts noticed by the two Courts below, made a transfer of the right of re-conveyance reserved in the dated deed March 20, 1967 in favour of Sidhnath and others on July 24, 1968. The first deed, in terms, provided for exercise of the option of re conveyance by a transferred from the vendor. To the extent of the share of the Major brothers, namely, 2/5th share, the right of re-conveyance was validly acquired by Sidhnath and others and could be specifically enforced by them. The trial Court was justified in its view in that regard. Singh Badri Singh could not decline to re-convey property to Sidhnath and others to the extent of 2/5th share of the major brothers, on account of the transfer made on July 24, 1968 in their favour, it is obvious that he could not sustain a claim for injunction in respect of property representing that share nor seek recovery of possession after one right of seeking re-conveyance was exercised by Sidhnath and others. Under the transfer mad:-on March 20, 1967, Badri Singh did not acquire any interest, to the extent of 2/5th share, in the property belonging to the minors. As such he could not seek an injunction in respect of pro tection of his possession over that part of the property. The relief of injunction can, thus, not be granted to Badri Singh on the basis that there was a transfer in his favour on March 20, 1967 and that he was put in possession of the property thereafter. On the allegations made by Badri Singh himself, he had been dispossessed before the disposal of the suit. Coming now to the case of Sidhnath and others, in so far as it relates to 2/5th share of the minor brothers, it is noticeable that the view of the lower appellate Court that the transfer of the share of minors in favour of Sidhnath and others was not void is manifestly erroneous. By the deed dated July 24, 1968, Sidhnath and others did not acquire any interest in the property to the extent of the minor's shate. They could not, therefore, seek any re-conveyance of that share to them on the footing that they had acquired the right to do so under the deed dated July 24, 1968, It was urged with some emphasis by the counsel for Sidhnath and others that in the present appeal, which has been filed by Badri Singh alone, the question of the enforceability of the agreement of re- conveyance of the minor's share in the property cannot be gone into for Badri Singh is estopped from raising this plea. It is urged that the view of the lower appellate Court in that respect was sound and that it should be upheld. As has been noticed earlier, the lower appellate Court was of opinion that the transaction relating to the minor's property was not void. It is implicit in the decision of the lower appellate Court that the transaction being voidable could only be by the minors. Since the transaction, in law, was void, it is obvious that the Court below could not interpose the discretionary relief of specific performance in favour of Sidhnath and others in regard to the share of the minors on the basis of a void transaction. In doing so, it has erred in law. The trial Court was plainly right when it decreed the suit for specific performance of the agreement of re-conveyance only in respect of 2/5th share in the property. That decree deserves to be restored. The result of the discussion aforesaid is that while second Appeal No. 1321 of 1975, which arises out of the suit filed by Badri Singh, is dismissed in its entirety, Second Appeal No. 870 of 1975, which arises out of the suit filed by Sidhnath and others, is allowed in part. The decree of the lower appellate Court directing specific performance of the agreement of re-con veyance in respect also of the minor's 2/5th share in the property is vacated. The trial Court's decree is restored. In the circumstances of the case, parties, are directed to bear their own costs of this Court. .