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1968 DIGILAW 96 (ALL)

Mahendra Kumar v. DY. Director Consolidation, UP Lucknow Camp At Jaunpur

1968-02-20

SATISH CHANDRA

body1968
ORDER Satish Chandra, J. - This petition arises out of consolidation proceedings. The holding in dispute belonged to one Nand Kishore. The Petitioners are the grandsons of Nand Kishore. Their father, Virendra Kumar, executed several sale-deeds of the portions of the ancestral property between 1955 and 1958. During consolidation operations, the Petitioners challenged the title of the purchasers in respect of their own share. They claimed that there was no legal necessity compelling their father to sell the ancestral property and that, in any event, he could not sell anything except his own share. The Consolidation Officer accepted this plea and upheld the sale-deeds only in respect of the share of the father of the Petitioners, namely, Virendra Kumar. On appeal, however, the Settlement Officer (Consolidation) reversed the order of the Consolidation Officer on the finding that the sale-deeds were for legal necessity and hence binding on the members of the family. The order of the Settlement Officer has been confirmed by the Deputy Director of Consolidation. 2. The authorities below have proceeded on the footing that the principles of Hindu Law relating to a joint Hindu family property would be applicable to bhumidhari holdings. In Mahabir v. Suba Lal 1965 AWR 419 , a single Judge of this Court held that members of joint Hindu family become joint bhumidhars. They held the holding as joint tenants and not as tenants in common. The principles of Hindu law would apply and the joint Hindu family property could be alienated for legal necessity. In Jai Narain v. Ayodhya Prasad 1966 AWR 823, however, another single Judge of this Court held to the contrary. It was ruled that the fresh rights created by the ZA Act would be governed not by the personal law, but by the statutory law to which they owed their origin and by which they would be regulated. Both in matters of transfer inter vivos as well as by will the statutory law made elaborate provisions that superseded the personal law. The personal law of a party would not continue to govern the bhumidhari rights. 3. This obvious conflict of decisions need not, however, detain me, because in Mahendra Singh v. Attar Siagh 1967 AWR 73 a Division Bench of this Court has held that the principles of coparcenary property are not applicable to the bhumidhari rights. The personal law of a party would not continue to govern the bhumidhari rights. 3. This obvious conflict of decisions need not, however, detain me, because in Mahendra Singh v. Attar Siagh 1967 AWR 73 a Division Bench of this Court has held that the principles of coparcenary property are not applicable to the bhumidhari rights. The transferability would be governed by the provisions of the Zamindari Abolition Act. According to this decision, the principles of Hindu Law would no longer be attracted to bhumidhari holdings. Notions of Hindu law could not be imported into the rights created by the Zamindari Abolition Act. Consequently, it cannot be said that the bhumidhari rights in a holding would be rights vested in the joint Hindu family as such. The members of the family would be bhumidhars, and not the family itself as a distinct entity. The joint Hindu family has not been recognised by law as a juristic personality. The powers of Karta under the Hindu law would not be available qua-bhumidhari rights. A Karta cannot alienate a bhumidhari holding either for legal necessity or for the benefit of the estate etc. He has unfettered right to transfer his own share, but he cannot alienate the share of other members of the family. The sale deeds, in the present case, therefore, did not validly pass any title to the purchasers in respect of shares not belonging to the executants. The authorities below were not right in up holding the sale-deeds in their entirety. Virendra Kumar could transfer only his share and purchasers could get title only in respect of that share. The rest of the shares would be deemed to continue to remain with the other members of the family. 4. It was for the Respondents argued that since the purchasers came in possession soon after the sale-deeds were executed between 1955 and 1958 and as their possession in respect of certain shares in the property sold was without any title, it would be per-se adverse to the interest of the Petitioners. The purchasers would, by being in possession for over six years, become sirdars. No such plea was taken and no issue was joined on it before the authorities below. The question is not a pure question of law. Adverse possession is a question of animus. It has to be established as a fact. The purchasers would, by being in possession for over six years, become sirdars. No such plea was taken and no issue was joined on it before the authorities below. The question is not a pure question of law. Adverse possession is a question of animus. It has to be established as a fact. Moreover, by acquiring a share in the holding, the purchasers become co-sharers with the rest of the family. Their possession would be presumed to be on behalf of the entire body of the co-sharers. In the absence of any ouster, they could not acquire title by adverse possession. 5. The view of the Consolidation Officer that sons of Virendra Kumar, who were not in existence that is not conceived when the sale-deeds were executed, would have no share in the property sold, appears to be correct and justified. Hence such Petitioners as were born after the sale-deeds were executed, would have no share in the property sold. 6. The petition succeeds and is allowed. The impugned orders are set aside. The matter is sent back to the Deputy Director of Consolidation, who will recalculate the share of the parties in the light of the observations made above. The parties will bear their own costs.