LAXMIPRASAD SUDHARAM Vs. MADANMOHAN DASHRATHPRASAD

JUDGEMENT

(1.) THE dispute in this appeal relates to a house and some agricultural lands situated in village Jarwe, Tahsil Janjgir, District Bilaspur. To understand the controversy, it is convenient to give the following table:<IMG>np_485_mplj_1978.jpg</IMG>

(2.) THE property in dispute was originally held by Mohan. He died sometime in 1929-30 leaving behind his son Abhairam as his heir. Abhairam married twice. From his first wife, who predeceased him, he had a son Horilal. Abhairam died in 1944 leaving behind his second wife Deepabai and son horilal from the predeceased wife. As the property in the hands of Abhairam was ancestral property, on the birth of Horilal it became coparcenary property. On the death of Abhairam, his interest in the coparcenary property passed to his widow Deepabai under section 3 (2) of the Hindu Women's Rights to Property Act, 1937. Horilal died in 1949 leaving his son Lakhanlal and a daughter yogmaya. Lakhanlal died unmarried after the coming into force of the Hindu succession Act sometime in 1959-60. On 30th September 1961, Deepabai sold the house and the agricultural lands in favour of Madan Mohan, Shyam Sunder and Murli Manohar. Subsequent to this sale, Deepabai and Yogmaya executed a number of sale-deeds in favour of other persons of the same property. The suit giving rise to this appeal was instituted by Madan Mohan, Shyam Sunder and Murli Manohar on 24th October 1963 for possession of the house and lands. Defendants 1 to 6 and 8 and 9 impleaded in the suit are subsequent transferees. Deepabai was also impleaded as defendant No. 7. She died during the pendency of the suit and Yogmaya was impleaded in her place as her legal representative. The defendants contested the suit mainly on three grounds: First, that the sale made in favour of the plaintiffs by Deepabai was fraudulent; secondly, that the sale was hit by section 165 (4) of the Madhya pradesh Land Revenue Code, 1959, and thirdly, that on Lakhanlal's death, after coming into force of the Hindu Succession Act, his interest did not pass by survivorship to Deepabai, but it passed to Yogmaya by inheritance under section 8 of the Act and, therefore, Deepabai was not competent to sell the entire property in favour of the plaintiffs. The plea of fraud raised by the defendants was negatived on facts by the Courts below. As regards the plea that the sale in favour of the plaintiffs contravened section 165 (4) of the Land revenue Code, it was found that the sale covered the entire holding of Deepabai as it then existed and, therefore, the bar of section 165 (4) (b) did not apply. As regards the plea that on the death of Lakhanlal his interest passed to Yogmaya, it was held that Lakhanlal's interest passed to Deepabai under section 6 of the Hindu Succession Act and not under section 8 to Yogmaya. On these findings, the Courts below decreed the suit.

(3.) ALL the pleas raised in the Courts below were reiterated before me too by the learned counsel for the defendants-appellants. As regards the plea of fraud, it is concluded by a concurrent finding of fact. Learned counsel has failed to point tut any error of law and, therefore, the finding that there was no fraud must be upheld. As regards the plea that the sale in favour of the plaintiffs violated section 165 (4) (b) of the Land Revenue Code, this section then provided that "no Bhumiswami shall have the right to transfer any land if such transfer shall result in a holding the area of which is below five acres of irrigated or ten acres of unirrigated land". The area transferred to the plaintiffs by Deepabai by Ex. P-1 was only 2. 76 acres. There was, however, a proviso to the section which enabled a Bhumiswami to transfer "his entire holding". At the time when the sale was made in favour of the plaintiffs the lands sold were the only lands held by Deepabai and, therefore, the sale was of the entire holding. The sale in favour of the plaintiffs was thus valid being within the proviso. But then it is argued by the learned counsel for the defendants-appellants that Deepabai had earlier to the sale made in favour of the plaintiffs executed three other sales of small portions of her holding which were void being in contravention of section 165 (4) of the Code and, therefore, it cannot be said that the sale in favour of the plaintiffs was of the entire holding. In my opinion, we cannot proceed on the assumption that the sales which were earlier made by Deepabai in favour of third persons were void. The transferees under those sales are not parties to the suit. No one has taken any action against them for invalidating the sales. They are still continuing in possession of the lands sold to them. In their absence, it is not possible to hold in this suit that the transfers made in their favour by Deepabai were invalid and void and in spite of the sales the lands sold to them form part of the holding of Deepabai. So at the time when the sales were made in favour of the plaintiffs, Deepabai had only 2. 76 acres of land and this constituted her entire holding. This entire holding was sold to the plaintiffs. The sale in favour of the plaintiffs was thus valid being within the proviso.