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1965 DIGILAW 160 (ALL)

Suraj Din v. Ram Chandra

1965-04-14

D.P.UNIYAL

body1965
ORDER D.P. Uniyal, J. - This appeal by the Defendant arises out of a suit for cancellation of a sale deed dated 29.7.1954 executed by Chandra Sen Defendant No. 1 in favour of Suraj Din Defendant No, 2. The following pedigree will be helpful in appreciating the controversy arising in the case between the parties: Jaipal and his five sons constituted a joint Hindu family. They were possessed of certain tenancy holding described in Schedules A and B of the plaint. After the death of Jaipal his five sons inherited the joint tenancy. Chandra Sen adopted Ram Chandra Plaintiff as his son during the life time of his brothers. Jai Ram, Jagdeo, Chandrabhan and Basdeo died issueless and, according to the Plaintiff, after their death the ancestral tenancy holding devolved on him and his adoptive father Chandra Sen. It is alleged that Chandra Sen had grown old and weak in mind. Suraj Din Appellant got the sale deed dated 29.7.1954 executed by Chandra Sen in respect of the joint tenancy holding in his favour for an ostensible consideration of Rs. 2500/-. The Plaintiff's case was that Chandra Sen was well off and was not in need of any money. It was alleged that the sale deed was without legal necessity, and hence the suit for its cancellation. Chandra Sen denied the adoption of the Plaintiff as his son. He said that he had borrowed money to acquire bhumidhari rights in respect of the tenancy holdings and as he had no means to pay the debt he sold the property to discharge that debt. The Appellant vendee pleaded that the sale deed was for legal necessity and that there was partition of the property between Chandra Sen and his brothers and that Chandra Sen succeeded to the property of his brothers upon their death under the UP Tenancy Act, 1939, and not by right of survivorship. It was denied that the Plaintiff-Respondent was the adopted son of Chandra Sen. 2. It was denied that the Plaintiff-Respondent was the adopted son of Chandra Sen. 2. Both the courts below held (1) that the property in suit was ancestral joint family property of Chandra Sen and his brothers; (2) that the Plaintiff was the adopted son of Chandra Sea and had acquired a right in the joint tenancy holding upon his adoption; (3) that there was no legal necessity for the alienation made by Chandra Sen; and (4) that there was no partition of the joint tenancy holding between Chandra Sen and his brothers. On these findings the suit was decreed and it was held that the sale deed was not binding on the Plaintiff and it was liable to be cancelled. 3 The findings recorded by the courts below are pure findings of fact. The learned Counsel did not seriously contest these findings, and indeed it was not open to him to do so. He, however, contended that the mere fact that Chandra Sen and his brothers were in possession of the tenancy holding as members of the joint Hindu family did not confer any right or interest on the Plaintiff Respondent in the said land during the lifetime of Chandra Sen, his adoptive father. The submission was that succession to tenantry lands was governed by the special law contained in the UP Tenancy Act or the ZA Act as the case may be, and not according to the rules of Hindu law. The tenancy in question was an occupancy tenancy and u/s 35 the Respondent would succeed to the holding only after the death of Chandra Sen. Section 38 specifically provides that no person shall be deemed to have an interest in a tenancy which has been acquired by another by inheritance merely because both of them are members of a joint Hindu family. In other words, if a joint Hindu family is possessed of a tenancy the sons do not acquire any interest in it by birth. They have been expressly excluded from inheritance by the proviso to S. 35 (a). 4. There is nothing in the UP Tenancy Act or the ZA Act which prohibits acquisition of tenancy rights by members of a joint Hindu family, but they are regarded as tenants in common and not joint tenants of the holding, as pointed out in Acharji Ahir Vs. Harai Ahir and Others, AIR 1930 All 822 . 4. There is nothing in the UP Tenancy Act or the ZA Act which prohibits acquisition of tenancy rights by members of a joint Hindu family, but they are regarded as tenants in common and not joint tenants of the holding, as pointed out in Acharji Ahir Vs. Harai Ahir and Others, AIR 1930 All 822 . It follows that the Plaintiff Respondent did not have any interest in the joint family tenancy by reason of his being the adopted son of Chandra Sen. 5. After the death of his brothers Chandra Sen became the sole tenant of the holding and no rights devolved on the Plaintiff Respondent in the said property as he was not a male lineal descendant of Chandra Sen's brothers in the male line of descent within the meaning of Clause (a) of S. 35 of the UP Tenancy Act. 6. The facts disclosed that Chandra Sen deposited ten times rent under Act X of 1949 as a consequence of which he became bhumidhar u/s 18 of the ZA Act. The new status acquired by him conferred on him a right to alienate the holding u/s 152. Since he was the sole bhumidhar of the land in question the Plaintiff Respondent could not impugn the sale deed executed by him in favour of the Appellant. The plaintiff's contention that the sale deed was without legal necessity, even if true, would not invalidate the transfer because the only restrictions placed on the Dower of bhumidhar to transfer his holding are those contained in Sections 154 to 165. None of these provisions create a bar on the right of transfer by bhumidhar of his land on the ground that the alienation was without legal necessity. The Plaintiff Respondent could not, therefore, challenge the alienation on the ground of its being without legal necessity. The Plaintiff Respondent could have had no right or interest in the land in suit so long as Chandra Sen was alive, and, therefore, the suit for cancellation of the sale deed executed by Chandra Sen was not liable to challenge by him. 7. The learned Counsel for the Respondent invited my attention to the case of Pheku Chamar and Others Vs. Harish Chandra and Others, AIR 1953 All 406 and sought to contend that the Plaintiff being member of a joint Hindu family had the right to challenge an alienation made by a coparcener. 7. The learned Counsel for the Respondent invited my attention to the case of Pheku Chamar and Others Vs. Harish Chandra and Others, AIR 1953 All 406 and sought to contend that the Plaintiff being member of a joint Hindu family had the right to challenge an alienation made by a coparcener. In that case a permanent lease was executed by a member of the joint Hindu family in respect of sir lands. A suit was filed by another member of the joint Hindu family to set aside the lease on the allegation that the effect of such a transfer was to deprive the joint family of the possession of the property. It was held that if a valuable property is transferred without consideration or legal necessity, such transfer is liable to be set aside. u/s 9 of the UP Tenancy Act succession to Sir rights is in accordance with the personal law of the parries. So that if sir lands are possessed by a joint Hindu family such coparcener comes to acquire interest in the sir lands by birth. So that a transfer of sir lands by a coparcener would be an act prejudicial to the interest of the coparcenary body and, as such, liable to be impugned for want of legal necessity. The principle governing succession to sir lands does not apply to tenancy holding to which S. 35 of the Tenancy Act applies The case of Pheku Chamar (supra) has thus no relevance to the facts of the present case. 8. The learned Civil Judge wrongly assumed that the property in question was the joint family property not only of Chandra Sen and his brothers but also of the Plaintiff Respondent. He failed to notice that the property in suit was the tenancy holding of Chandra Sen and his brothers of which they were in possession as tenants in common and not as coparceners. The Plaintiff Respondent, who was the adopted son of Chandra Sen, had no right or interest in the said tenancy during the lifetime of Chandra Sen and his brothers, or any of them. In this view of the matter his status was not that of a co tenant, as such, he could pot challenge the alienation made by Chandra Sen. 9. I, therefore, allow this appeal and set aside the judgment and decree of the lower appellate court and dismiss the Plaintiff's suit. In this view of the matter his status was not that of a co tenant, as such, he could pot challenge the alienation made by Chandra Sen. 9. I, therefore, allow this appeal and set aside the judgment and decree of the lower appellate court and dismiss the Plaintiff's suit. But in the circumstances of the case, I make no order as to costs of this appeal.