BRAHAMA NAND Vs. ROSHANI DEVI

JUDGEMENT

(1.) This R.S.A. arises out of the judgment and decree passed by the learned District Judge, Hamirpur and Una, Camp at Una, dt. May 24, 1980.

(2.) The facts in brief are that the respondent Smt. Roshni Devi in this appeal (hereinafter referred to as 'the plaintiff') filed a suit against the appellants Brahma Nand and his wife Smt. Brahami Devi (hereinafter referred to as the 'defendants 1 and 2' respectively) for possession of 7-17 kanals of land situate in village Dumkhar, Tappa Bhanet, Tehsil Una. The plaintiff and defendant 1 are sister and brother to each other and the plaintiff had inherited this suit land as her 1/5th share on the death of her father Bansi Dhar sometime in the year 1956. It may be stated that at that time due to mistake of revenue officials, her 1/5th share had been worked out to 5.7 kanals. The plaintiff then vide a registered sale deed dt. Dec. 14, 1965, sold this 5.7 kanals of her share in the land in favour of defendant 1 for a consideration of Rs. 500/-. On the same date a contemporaneous document was executed by defendant No. 1 in favour of the plaintiff whereby he undertook that he or his descendants would not dissipate or alienate this land but would go on benefiting therefrom from generation to generation as was desired by the plaintiff vendor and that in case he acted in violation of this condition, the plaintiff vendor would be entitled to purchase back this land on payment of Rs. 500/-. Defendant 1 vide a gift deed, the mutation whereof was attested on June 6, 1973, alienated this land of 5.7 kanals which he had purchased from the plaintiff in favour of defendant 2. The plaintiff then through the instant suit challenged this alienation on the basis of the agreement dt. December 14, 1965 on the ground that since it violated the stipulation regarding non-alienation, the plaintiff was entitled to get back this land on payment of Rs. 500/-. This plea of the plaintiff found favour with the trial court and the said court vide judgment dt. Dec. 31, 1976, decreed the suit of the plaintiff. Strangely enough, however, although the plaintiff in the suit had clearly stated that the sale was executed by her in favour of defendant 1 for a consideration of Rs. 500/- which she was ready to pay on the rescission of the sale in favour of defendant 1 and the gift by him in favour of defendant 2, but the trial court held that even this amount was not payable. The matter was then taken up in appeal before the District Judge who vide the impugned judgment, dismissed the appeal and upheld the decree of the trial court with the modification that the plaintiff would get decree for possession of the land in dispute against both the defendants on payment of Rs. 500/- to defendant No. 1 which was ordered to be deposited within three months.

(3.) The learned counsel for defendants I and 2 in this appeal before me has assailed the findings of both the courts below and contended that since there was an out right sale by the plaintiff in favour of defendant 1, the same had become irrevocable and that the contemporaneous agreement which purported to have been executed by defendant 1 in favour of the plaintiff whereby he undertook not to alienate this land in any manner was void and of no consequence as such an agreement was prohibited by the provisions of S. 10 of the Transfer of Property Act (hereinafter called as 'the Act').