ORDER Gangeshwar Prasad, J. - This second appeal arises out of a suit for cancellation of a sale deed dated 2nd May 1960 executed by Smt. Ram Sakhi Defendant No. 1 in favour of Defendants Nos. 2 to 4 in so for as it relates to Plaintiff's one fourth share in the plots mentioned in the plaint and for a permanent injunction restraining Defendants Nos. 2 to 4 from interfering with the possession of the Plaintiff over his one-fourth share in them. In the alternative a decree for joint possession with Defendants Nos. 2 to 4 was also claimed. 2. Admittedly Mata Deen and Ram Nath sons of Rikhi Ram were proprietors in equal shares in the village in which the plots in suit are situate and the plots were their Sir and Khudkasht appertaining to their proprietary interest. Mata Deen had made a gift of his half share in the village to Smt. Ram Sakhi the wife of his predeceased son Ram Manohar. The case of the Plaintiff was that on 4th April 1941 Smt. Ram Sakhi executed a deed of gift in his favour in respect of half of her proprietary interest in the village and delivered possession thereof to him. The Plaintiff claimed that he was thus a joint Sir and Khudkasht holder of the plots in suit along with Smt. Ram Sakhi before the enforcement of the UPZA and LR Act and became a co. bhumidhar with her after the enforcement of the said Act. Smt. Ram Sakhi, however, executed a sale deed in respect of half share in the plots in suit in favour of Defendants Nos. 2 to 4 who are the descendants of Ram Nath brother of Mata Deen, on 2nd May 1960 although according to the Plaintiff she was not competent to do so in so far as one fourth share in the plots was concerned. This was said to have furnished the cause of action for the suit. 3. Defendants Nos. 2 to 4 denied the right of the Plaintiff to the plots in suit and pleaded that the deed of gift dated 4th April 1941 in favour of the Plaintiff was obtained by fraud and undue influence and was never acted upon. They also pleaded that the deed conveyed no interest to the Plaintiff in the plots in suit. 2 to 4 denied the right of the Plaintiff to the plots in suit and pleaded that the deed of gift dated 4th April 1941 in favour of the Plaintiff was obtained by fraud and undue influence and was never acted upon. They also pleaded that the deed conveyed no interest to the Plaintiff in the plots in suit. Some other pleas were also taken in defence but they are not relevant for the purpose of this appeal. 4. The suit has been dismissed by both the courts below. They have found that although the deed of gift in favour of the Plaintiff was valid and was not obtained by fraud or undue influence the Plaintiff did not acquire any interest in the plots in suit under the said deed and it was never acted upon. According to them, all that was transferred to the Plaintiff by means of the deed of gift was half of the proprietary share of Smt. Ram Sakhi in the village and the deed did not cover the Sir right possessed by her in the plots in suit. I may here mention that although the plots in suit were described by the Plaintiff as Sir and Khudkasht the case has been decided by both the courts below on the basis that all the plots were Sir and it is on this basis that the counsel for both the parries have argued the case before me. The only question involved in the case is whether the rights of Smt. Ram Sakhi in her Sir passed to the Plaintiff under the deed of gift along with her proprietary interest in the village or not. 5. The gift deed purports to convey half of the proprietary interest of Smt. Ram Sakhi in the village and it does not expressly state that Sir right appertaining to the proprietary interst that is being gifted is also being conveyed by means of the deed. The contention put forward before the courts below on behalf of Defendants Nos. 2 to 4 was that by virtue of Section 9 of the UP Tenancy Act of 1939 and on the terms of the deed of gift the Plaintiff did not acquire any interest in the Sir appertaining to the proprietary share of his doner. The contention put forward before the courts below on behalf of Defendants Nos. 2 to 4 was that by virtue of Section 9 of the UP Tenancy Act of 1939 and on the terms of the deed of gift the Plaintiff did not acquire any interest in the Sir appertaining to the proprietary share of his doner. This contention found favour with the courts below and this is the only contention that has been advanced before me in support of the judgment under appeal. 6. Consideration of the question is controversy should, in my opinion, start with a reference to Section 8 of the Transfer of Property Act. the main and the relevant part of which runs thus: Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. 7. The effect of the above provision is that the transfer of a property operates upon and exhausts the entire transferable interest of the transferor in the property and in its legal incidents, if there is no express or necessarily implied reservation of any particular interest by the transferor. Indisputably, Sir polts appertained to and formed an integral part of proprietary rights in a village and, consequently, when a co sharer transferred his proprietary rights in a village his proprietary rights in Sir also passed to the transferee proportionately, unless they were expressly or by necessary implication exempted. The. question that arises is whether 'Sir right' would also in such cases be deemed to have passed to the transferee by virtue of Section 8 of the Transfer of Property Act. Sir right was defined in Section 8 of the UP Tenancy Act as follows: 'Sir right' means the rights conferred on Sir-holders by this Act and by the United Provinces Land Reveune Act, 1901, and includes the rights to exclusive possession of this Sir against co sharers of the Sir holder in the proprietary right, subject to a liability to account for profits. The definition made it clear that a Sir-holder possessd in his Sir certain rights in addition to those which a co-sharer possessed in it by reason of being a co sharer and one of those rights was that the Sir-holder was entitled to remain in exclusive possession of his Sir subject to the lability to account for profits. But, even though the right of a Sir holder, including the right of exclusive possession, was in addition to those rights which he shared with his co sharers in proprietary right, it cannot be said that it was not an. adjunct to his own proprietary right It was only by virtue of being a proprietor that a person could acquire Sir right and such a right could not, therefore, be disassociated from proprietary right and regarded as altogether separate and distinct. It is true that on a transfer of the nature mentioned in Section 26 of the UP Tenancy Act rights of an ex proprietary tenant arose in favour of the transferring proprietor, but that did not imply that the proprietor had any tenancy right in his Sir even before the transier. It would be noticed that Section 26 of the UP Tenancy Act laid down that the proprietor became an ex-proprietany tenant of his Sir only when he made a transfer of the kind mentioned in the section, and it cannot be urged than the proprietor had tenancy right in his Sir at any time prior to the transfer. No doubt Sir right was some times described as composed of pro prietary right and cultivatory right, but the expression 'cultivatory right' did not mean tenancy right and it only connoted the right to exclusive possession against the co sharers in proprietary right. Before the right of a proprietor in his Sir was actually split up into proprietary right and tenancy right as a result of a transfer-the former passing to the transferee and the latter arising in favour of the transferor-Sir right partook only of the nature of proprietary right, even though the Sir holder had some rights peculiar to himself and not shared with him by the other proprietors in the village. It was possible under the law for a proprietor to acquire certain rights which the other proprietors in the village did not possess, but if the acquisition of the rights was possible only because of his having been a proprietor, and its continued existence was dependent upon his being a proprietor, the rights so acquired or possessed must be deemed to have been a part of his proprietary right despite the fact that the other proprietors in the village did not possess them. Sir right was therefore, included in the proprietary rights of the Sir holder in the village, and on a transfer of proprietary rights Sir right possessed by the transferor also passed to the transferee u/s 8 of the Transfer of Property Act, provided the transferor was competent to transfer it and it was not expressly or by necessary implication exempted from the transfer. At any rate, Sir right possessed by a proprietor was certainly a legal incident of his proprietary rights and it must be held that on a transfer of proprietary rights in the village it passed to the transferee by force of Section 8 of the Transfer of Property Act, if such a right was capable of being transferred in that manner and if a different intention was not expressed or necessarily implied. 8. In support of the view taken on this question, the lower appellate court has placed reliance on the decision of this Court in Ram Prasad Singh v. Janki Prasad Singh (1) reported in IX Revenue Decisions 443. The facts of the case were that some of the joint Sir-holders of a Sir Khata sold their share, with the resuJt that they acquired ex-proprietary rights in a proportionate part of the Khata and the remaining part continued to be Sir of the Sir holder whose share had not been sold The vendees, however, took possession of a plot which was a part of the area which continued to be Sir. The Sir-holder whose share had not been sold brought a suit for ejectment of the vendees from the said plot and the question was whether he was entitled to a decree. Daniels, J., while holding that the Plaintiff was entitled to a decree, observed: But Sir rights, though they can only be held by a proprietor, are something beyond and apart from the mere proprietary right. Daniels, J., while holding that the Plaintiff was entitled to a decree, observed: But Sir rights, though they can only be held by a proprietor, are something beyond and apart from the mere proprietary right. The right of a Sirholder is a right to exclusive possession coupled with the fact that no person cultivating under him can acquire occupancy rights. In a joint undivided village each proprietor may have his own separate Sir although the proprietary rights in the whole village are joint. 9. These observations have been quoted by the lower appellate court in its judgment as supporting the view that Sir right was not an adjunct to proprietary rights and it did not ipso facto pass to the donee by a gift of the proprietary rights. The observations have, however, to be read in the context in which they were made. The vendees in possession of the plot involved in that case were certainly proprietors in the village but the Plaintiff was not only a proprietor in the village like the vendees but was also a Sir-holder of the plot in suit and was thus possessed of some special rights which the vendees did not have. It was to emphasise this essential distinguishing feature between the proprietary rights of the parties to the case that the observations were made and they cannot be interpreted as laying down that Sir rights were not legal incidents of proprietary rights. In fact the learned Judge expressly said that Sir right could only be held by a proprietor. All that was intended to be laid down by him, therefore, was that the vendees could not resist the claim of the Plaintiff on the basis of being mere proprietors of the plot in suit which was Sir of the Plaintiff. 10. The lower appellate court has also referred in its judgment to the case of Shambhu Datt and Anr. v. Ishwar Deen (2) (1942 AWR (CC) 93) where it was held that the transfer of a proprietary share includes the transfer of Sir rights, but it has observed that, as distinguished from the instant case, that case was governed by the Oudh Rent Act of 1886. v. Ishwar Deen (2) (1942 AWR (CC) 93) where it was held that the transfer of a proprietary share includes the transfer of Sir rights, but it has observed that, as distinguished from the instant case, that case was governed by the Oudh Rent Act of 1886. It is, however, not disputed before me that the right to exclusive possession of Sir as against Co sharers only in the proprietary right has always been a feature of the rights of a Sir holder both in Agra and in Oudh, and I, therefore, think that the Oudh case cannot be distinguished on the basis on which it has been distinguished by the lower appellate court. I may, in this connection, mention that in Uttam Singh v. Taluqdar Singh (3) (1941 AWR Rev. 388), a case under the UP Tenancy Act, the Board of Revenue recognised the general rule that Sir rights went along with proprietary rights when the latter were transferred. 11. For the foregoing reasons it is, to my mind, clear that Sir right was included in the proprietary rights of a Sir holder and, in any case, it was a legal incident of his proprietary rights, and as such if the conditions laid down in Section 8 of the Transfer of Property Act were present Sir right passed to the transferee along with a transfer of proprietary rights. 12. The first of such conditions was that the transferor must have been capable of transferring Sir right. Section 9 of the UP Tenancy Act laid down that Sir right was not transferable except (a) by gift to a person to whom the proprietary right in the Sir was gifted or (b) by exchange. There can be no doubt that under the deed of gift in favour of the Plaintiff proprietary rights in the Sir appurtenant to the share conveyed by the deed were gifted to him. Mr. Misra, learned Counsel for the Defendants, has argued that u/s 9(2) (a) of the UP Tenancy Act Sir rights were not transferable unless the deed of gift expressly mentioned that the proprietary rights in the Sir were also being transferred by means of the deed. I do not however find any support for this proposition in the words used in the said provision. I do not however find any support for this proposition in the words used in the said provision. It only emphasised the fact that Sir right had always to be accompanied by proprietary rights in the Sir and laid down that Sir right passed under a gift when the proprietary rights in the Sir were gifted and not otherwise. It did not prescribe any particular mode in which the proprietary rights in the Sir could be gifted or any particular words to be used in the gift before proprietary rights in Sir could be deemed to have been transferred to the donee. A gift of proprietary rights in Sir could be by an express term in the deed of gift or by operation of the rule of law embodied in Section 8 of the Transfer of Property Act. Mr. Misra contended that the words used in Section 9 (2) (a) of the UP Tenancy Act had the effect of superseding the general provisions contained in Section 8 of the Transfer of Property Act and that an express gift of proprietary rights in Sir was necessary before Sir right could be transferred to a donee. I, however, find myself unable to accept this contention. In mv opinion, Section 9 (2) (a) of the UP Tenancy Act does not at a11 bar the application of Section 8 of the Transfer of Property Act. 13. Smt. Ram Sakhi was, therefore, capable of transferring her Sir rights in proportion to her proprietary share to the Plaintiff by means of a deed of gift and the first condition required by Section 8 of the Transfer of Property Act was, therefore, satisfied. I he other condition required by the aforesaid section was that there should have been no express or necessarily implied intention on the part of Smt. Ram Sakhi to exempt Sir from the gift. An examination of the deed of gift under consideration would unmistakably show that not only an express or implied intention to exempt Sir was totally absent but it was clearly stated in the deed that all rights appertaining to Zamindari without any exception were being transferred to the donee. An examination of the deed of gift under consideration would unmistakably show that not only an express or implied intention to exempt Sir was totally absent but it was clearly stated in the deed that all rights appertaining to Zamindari without any exception were being transferred to the donee. As a matter of fact, even on the terms of the deed itself and without recourse to the aid of the provisions of Section 8 of the Transfer of Property Act, it could be properly said that since Sir right was appurtenant to the proprietary interest of Smt. Ram Sakhi it passed to the Plaintiff in proportion to the interest conveyed to him under the deed of gift. 14. As a result of the above discussion it must be held that by virtue of the deed of gift dated 4th April 1941 the Plaintiff became a Go sir-holder with Smt. Ram Sakhi to the extent of one fourth share in the plots in suit, and after the enforcement of the UPZA and LR Act he became a Co-bhumidhar with her to the same extent. The question whether he actually obtained possession of his one fourth share in the plots is of no significance inasmuch as the Plaintiff's position has always been that of a co sharer, and Mr. Misra, learned Counsel for the Defendants Respondents, has attached no importance to it in his argument and has conceded that the case turns entirely on whether Sir rights were or were not transferred to the Plaintiff under the deed of gift in his favour. On the view that I take in regard to that matter the Plaintiff is, therefore, entitled to the declaration that the sale deed dated 2nd May 1960 executed by Smt. Ram Sakhi in favour of Defendants Nos. 2 to 4 is ineffective so far as Plaintiff's one fourth share in the plots in suit is concerned, and since it has been found that the Plaintiff is not in possession he is also entitled to a decree for joint possession to that extent. 15. In the result the appeal is allowed, the decrees of the courts below are set aside, and the suit of the Plaintiff is decreed in the following terms. It is declared that the deed of sale dated 2nd May 1960 executed by Smt. Ram Sakhi in favour of Defendants Nos. 15. In the result the appeal is allowed, the decrees of the courts below are set aside, and the suit of the Plaintiff is decreed in the following terms. It is declared that the deed of sale dated 2nd May 1960 executed by Smt. Ram Sakhi in favour of Defendants Nos. 2 to 4 is ineffective to the extent of one fourth share of the Plaintiff in the plots in suit and the Plaintiff is granted a decree for joint possession with Defendants Nos. 2 to 4 over the plots in suit to the extent of his one fourth share. The relief for injunction is refused. In the circumstances of the case, I direct that the parties shall bear their own costs in all the courts.