Chandra Bahadur Singh v. Kesrichand — 1959 DIGILAW 320 (MP)

JUDGMENT T.C. Shrivastava, J 1. This second appeal has been filed by the defendants against the reversing judgment of the Additional District Judge, Rajnandgaon, in Civil Appeal No. 31-A of 1956, dated 26-11-1957. 2. The respondent-plaintiff had sued the appellants-defendants for specific performance of a contract of sale of Khasra Nos. 9, 1771/3 and 1996/3, situate in mouza Belgaon, Tahsil and District Khairagarh. The contract was entered into by appellant No. 1 Raj Kumar Chandra Bahadur Singh by Ex. P-1, dated 28-1-1952, Ex P-2, dated 9-7-1952 and Ex. P-3, dated 15-9-1952. The appellant No. 2 is the son of appellant No. 1. 3. The admitted facts of the case are that the suit lands were held in Sir rights by the appellants who were the proprietors of the village Belgaon before the Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950 (No. 1 of 1951)-hereinafter referred to as the Act- came into force. After the abolition of proprietary rights these lands became the raiyati lands of appellant No. 1 regarding which a formal order was recorded by the Revenue Officer on 25-5-1953, that is, after the contracts in suit were entered into. Thereafter, there was a partition between the appellants on 29-5-1953 and the suit lands were allotted by appellant No. 1 to appellant No. 2. 4. The plaintiff's case was that the agreements in suit were executed by appellant No. 1 as he needed money for the household expenses of the joint family. Accordingly both the appellants-defendants were liable to perform the contract. 5. The defence was that the three agreements executed were illegal and could not be specifically enforced. A special plea was taken on behalf of appellant No. 2 that as the agreement to alienate was made by his father, without justifying necessity, he was not bound by it and the contract could not be specifically enforced against him. 6. The Courts below have found that the agreement of sale was not for legal necessity and therefore appellant No. 2 was not bound by it. The trial Court found that the contract was legal, but appellant No. 2 was not bound by it. Therefore, it decreed the suit for refund of consideration. 6. The Courts below have found that the agreement of sale was not for legal necessity and therefore appellant No. 2 was not bound by it. The trial Court found that the contract was legal, but appellant No. 2 was not bound by it. Therefore, it decreed the suit for refund of consideration. The lower appellate Court, however, held that the property in suit ceased to he ancestral joint Hindu family property atter the raiyati rights were granted in favour of appellant No. 1 alone, and therefore appellant No. 1 was bound to execute a sale-deed for the property. The partition did not affect the lights of the respondent for specific performance. Accordingly, the suit was decreed for specific performance of the contract on payment of Rs. 1,800 which was the unpaid part of the consideration. 7. Shri A. P. Sen for the appellants has advanced the following contentions in support of the appeal:- (1) That the contracts were illegal as the raiyati rights were not granted on the date on which they we entered into and that they were also forbidden by law; and (2) That the property continued to be joint family property even when the raiyati rights were formally granted to appellant No. 1 and as the agreements were without justifying necessity, the contract cannot be specifically enforced against appellant No. 2. 8. So far as the legality of the contract is concerned, it is true that the property vested in the State Government on the abolition of proprietary rights on 1-4-1951 and the formal order granting raiyati rights in favour of appellant No. 1 were passed on 25-6-1953. However, during the interval the lands were in fact held by appellant No. 1 and he paid rent for the period. The State Government had not taken possession of the same. The order granting raiyati rights under Section 54 of the Act operates from the date of the vesting. It is not really a grant from the date on which the order is made. The use of the word "reserve" in Section 54 indicates that the vesting and the granting of the rights is simultaneous and the rights relate back to the date of the vesting. Accordingly, I hold that when the rights were formally recognized on 25-5-1953, the order became effective from the date of vesting. The use of the word "reserve" in Section 54 indicates that the vesting and the granting of the rights is simultaneous and the rights relate back to the date of the vesting. Accordingly, I hold that when the rights were formally recognized on 25-5-1953, the order became effective from the date of vesting. The appellant No. 1 was thus holding the lands in raiyati rights on the date of the contract. 9. Even if the appellant No. 1 did not have such rights on the date of the contract, it is specifically stated in Exhs. P-1 to P-3 that the contract was entered into in anticipation of the rights being granted. Under Section 54 of the Act read with the rules framed thereunder it was known to the parties that the rights would be granted and there was, therefore, nothing illegal in the appellant No. 1 agreeing to sell them. At any rate, he is bound to perform the agreement when the rights actually accrued to him. Section 18 (a) of the Specific Relief Act is not confined to persons having imperfect title only but it also extends to persons having no title at all. [See Pundlik Daryaji vs. Jainarayan Maliram Shop AIR 1949 Nag. 83 & Tilakdhari Lal vs. Khedan Lal AIR 1921 P.C. 112 at p. 118.] 10. Before the lower appellate Court the argument advanced was that the contract was hit by Section 6 or the Act. Shri A. P. Sen, however, did not rely upon this section to support his argument. He referred to Section 3 (2) of the Act contending that transfers of lands likely to vest in the State have been absolutely prohibited. It is provided in that section that no right shall be required in any land except under a grant or a contract in writing made or entered into by or on behalf of the State. The purpose of the enactment is not to prohibit transfers between private parties. The section is intended only to protect the rights of the Government and the substance of the enactment is that all transfers are voidable by the State. It does not mean that even where private parties want to transfer their lands, the contract should be entered into in writing by or on behalf of the State. The section is intended only to protect the rights of the Government and the substance of the enactment is that all transfers are voidable by the State. It does not mean that even where private parties want to transfer their lands, the contract should be entered into in writing by or on behalf of the State. In the instant case, the contract to transfer the raiyati lands does not, in any way, affect the interest of the Government and therefore the prohibition under Section 3 of the Act does not at all operate. I do not hold that the contract is hit by Section 23 of the Contract Act as being prohibited by law. 11. The next branch of Shri Sen's argument for the appellants is that the contract cannot be specifically enforced against appellant No. 2, as the agreements were not or justifying necessity. Before considering this argument, it has first to be seen whether the lands in suit continued to be the joint family property of the appellants after the abolition of the proprietary rights. So far as the character of the lands prior to vesting is concerned, it was implicitly assumed by the parties that it was joint family property. The plaintiff-respondent has not stated in the plaint in so many words that the property is joint family property, but he has himself alleged that as the agreement to sell was for necessity, it binds the son also. This implies that he had accepted the position that the lands were joint family property. In the written statement, the defendants have expressly pleaded that the lands were held by the family jointly and this fact is further supported by the admitted partition between the father and the son. There is also the statement of the plaintiff-respondent's witness, Jhumuklal (P. W. 2), who had scribed the agreements Exs. P-1 to P-3. This witness states that the lands were held as joint family lands to his knowledge. Under these circumstances, the plaintiff could not seriously dispute the character of the lands as joint family property. 12. It has then to be seen whether after the vesting the joint family character of the property ceased and the grant of raiyati rights to appellant No. 1 changed the property into his self-acquired property as held by the lower appellate Court. 12. It has then to be seen whether after the vesting the joint family character of the property ceased and the grant of raiyati rights to appellant No. 1 changed the property into his self-acquired property as held by the lower appellate Court. I do not agree that the vesting of the property in the State Government and regrant of some of lands in raiyati rights would have the effect of changing the character of the property. In Chandanlal vs. Pushkarraj ILR 1952 Nag. 318, the question was considered in the context of protected thekedar under the Central Provinces Land Revenue Act, 1917 and it was held as follows:- "It has always been the accepted view that the grant of protected status to a thekedar did not make the theka the exclusive property of the person on whom the protected status is conferred." Further, after referring to the decision of their Lordships of the Privy Council in Thakur Bhagwan Singh vs. Darbar Singh 24 NLR 179 P.C. it was observed: "Their Lordships observed that the Land Revenue Act, 1917 recognizes that the leasehold interest, though impartible may nevertheless be the joint property of the thekedar and his family" The instant case arises from Khairagarh State, but the rights of a thekedar are quite similar to the rights of a protected thekedar under the Central Provinces Land Revenue Act. It is true that clause 7 of the Wajib-ul-arz of the Khairagarh State provides that the right of a gaontia passes by inheritance to his male heirs and it does not descend to collaterals. However, under the Central Provinces Land Revenue Act also he theka is impartible and although it passes on succession according to the personal law of the holder, only one person can hold the theka at a time. It is pertinent to observe that under clause 10 of the Wajib-ul-arz of the Khairagarh State a gaontia is entitled to allot sir land to the members of his family who are entitled to a share of profits of the village by a private arrangement. This clause clearly envisages the possibility of the members of the family having a right to the share of the profits of the village. I have therefore, no doubt that in spite of the fact that a theka is impartible, it can be joint family property. 13. This clause clearly envisages the possibility of the members of the family having a right to the share of the profits of the village. I have therefore, no doubt that in spite of the fact that a theka is impartible, it can be joint family property. 13. Shri R. K. Pandey for the respondent referred to paragraph 587 on pag 735 of the Principles of Hindu Law by P. F. Mulla (12th Edition) which is as follows :- "An impartible estate is not held in coparcenary though it may be joint family property. But at times it is referred to as coparcenary and a distinction is drawn between present rights, that is, the right to demand a partition and the right to joint-enjoyment, and future rights. In the case of an impartible estate, the right to partition and the right of joint enjoyment are from the very nature of the property incapable of existence, and there is no coparcenary to this extent. No coparcenary, therefore, can prevent alienations of the estate by the holder for the time being either by gift or by will, nor is he entitled to maintenance out of the estate, but as regards future rights, that is the right to surviverships, the property is to be treated as coparcenary property, so that on the death intestate of the last holder, it will devolve by survivership..." It is clear from this paragraph that although the theka is impartible and no co-sharer can demand partition of the same, still he has an existing right in theka. Shri pandey relies upon this passage to support his contention that an alienation made by the holder of the theka cannot be challenged. In the instant case, the theka had ceased to exist as such on the date of vesting. All that was left after that was the raiyati rights in the lands which were to be granted under Section 54 of the Act. The lands were thereafter governed by the special law relating to rights of raiyats and the law relating to thekedari tenure could not regulate the rights to alienate or the rights to succeed to the lands. An soon as the bar of impartibility was removed, after the vesting, the lands became joint family lands and the normal Hindu law or the special law relating to raiyati rights would apply to them. An soon as the bar of impartibility was removed, after the vesting, the lands became joint family lands and the normal Hindu law or the special law relating to raiyati rights would apply to them. In this view, the agreement to sell entered into in 1952 by the appellant No. 1 would be governed by the provisions of Hindu law. 14. As it has been found by the Courts below that the agreements were not for justifying necessity, the appellant No. 2 would not be bound by them. In Shamlal vs. Yesaram ILR 1954 Nag. 866 it has been laid down that if the father enters into an agreement to alienate joint family property without any justifying necessity not only the son is not bound by the contract but specific performance cannot be decreed even in respect of the father's share. According to the view taken in that case, the respondent-plaintiff could not, therefore, compel even the appellant No. 1 to convey his share in the property specifically. 15. In the result, the appeal succeeds. The decree of the lower appellate Court granting specific performance is set aside, and that of trial Court ordering the appellant so. I to pay Rs. 1,830 to the respondent is resotred. As regards costs, I direct that the parties shall bear their own costs as incurred throughout in view of the fact that the success is divided. Appeal allowed.