Bibhuti v. Kashi Ram — 1977 DIGILAW 422 (ALL)

JUDGMENT : K.N. Seth, J. Dhanraj filed a suit for cancellation of the sale deed dated September 17, 1963 under which his half share in certain Bhumidhari plots measuring 4 bighas, 12 biswas and 13 dhoors and the half share in a house was transferred in favour of the Defendants. The Plaintiff also claimed a declaration that he was Bhumidhar in possession of the plots and the owner in possession of the house in suit and in case he was found out of possession, a decree for possession was also claimed. During the pendency of the suit Dhanraj died and his brother Bibhuti, who was the co-Bhumidhar of the plots in question to the extent of the remaining half share, was substituted in his place. The sale deed was ought to be cancelled primarily on the ground that it had been procured fradulently and that it was void as the transfer was contrary to the provisions of Sub-section (1) of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act. The Courts below dismissed the suit. During the hearing of the second appeal it was noticed that conflicting views on the scope of Section 168-A have been expressed in Jalpa Sahai v. Tribhunath 1971 AWR 863 and Santokhi v. Board of Revenue U.P. at Allahabad 1971 AWR 590. On account of this conflict the following question has been referred to us for decision: Whether the sale of his entire share in the bhumidhari by a co-tenure holder, where the total area of bhumidhari land is less than the prescribed area is hit by the provisions of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act. Section 168-A lays down: 168-A. Transfer of fragments- (1) Notwithstanding the provisions of any law for the time in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder the whole, or so much of the plot in which the person has bhumidhari rights, which pertains to the fragment is thereby transferred. (2) The transfer of any land contrary to the provisions of Sub-section (1) shall be void. (2) The transfer of any land contrary to the provisions of Sub-section (1) shall be void. (3) When a bhumidhar has made any transfer in contravention of the provisions of Sub-section (1), the provisions of Sections 167 and 168, shall mutatis mutandis, apply. 2. There is no dispute that the plots in question are Bhumidhari land situate in a consolidated area and measures less than three acres. Dhanraj had a half share in the land and the other half share belongs to his brother Bibhuti. The sale was not in favour of any person having a contiguous plot or holding. The transfer was of Dhanraj's entire share in a 'fragment' which has been defined to mean land of less extent than 6.25 acres in certain areas of the State and land of less extent than 3.125 acres in certain other areas. The land in question being situate in Basti a fragment will mean less than 3.125 acres. 3. A plain reading of Section 168-A indicates that the law prohibits transfer of a fragment situate in a consolidated area except transfer in the following circumstances: (1) Transfer of a fragment in favour of a tenure-holder who has a plot contiguous to the fragment; and (2) Transfer in favour of any person of the whole or so much of the plot in which the person has Bhumidhari rights, which pertains to the fragment. 4. The prohibition contained in Section 168-A is in respect of any 'fragment' of land situate in a consolidated area i.e. a specific piece of land. Similarly the exception provided is relating to transfer of a 'fragment' in favour of a tenure holder who has a plot contiguous to the 'fragment' and the transfer pertaining to a 'fragment' in favour of any person of the whole or so much of the plot in which the transfer (?) has Bhumidhari rights. The provision in the first exception that the transferee tenure-holder must have a plot contiguous to the 'fragment' sought to be transferred also indicates that the transfer contemplated in the section relates to a specific piece of land. Similarly the language employed in the second exception indicates that the transfer must be of a specific piece of land. The language of the section does not warrant an interpretation that the prohibition contained in it extends to the transfer of a share in the 'fragment'. Similarly the language employed in the second exception indicates that the transfer must be of a specific piece of land. The language of the section does not warrant an interpretation that the prohibition contained in it extends to the transfer of a share in the 'fragment'. If that had been the intention of the legislature, the language would have been that no person shall transfer whether by sale, gift or exchange any 'fragment' or a share in any 'fragment'. 5. it was urged that the intention of the legislature was to prohibit splitting up or fragmentation of holdings and it was with this intention that Section 168-A was enacted and this intention would be defeated if the section is interpreted to exclude transfer of share in a fragment. We find no merit in the contention. The transfer of a share in a fragment by one of the co-tenure holders would not bring about any material change in the situation. Its only effect would be that instead of the transferor the transferee would become the co-tenure-holder. As regards the possibility of the land being split up in future on account of the fact that the transferee and the original co-tenure holder may not pull on together, the situation would not be different by the mere fact of transfer because even the original co-tenure holders may not find it possible or convenient to continue as co-tenure holders. Moreover, the legislature has made suitable provisions, to avoid such a contingency in Section 178 and the following sections relating to division of a holding by enacting that where the aggregate area of the holding or holdings to be divided does not exceed three and one-eighth acres, the court shall instead of proceeding to divide the holding or holdings, direct the sale of the same and distribute the proceeds thereof in accordance with such principles as may be prescribed. Where the court orders a sale of the holding or holdings, a preferential right is given to the co-tenure holder to purchase it on the price ascertained and where two or more co-tenure holders having an equal preferential right severally ask for leave to buy, the court is authorised to order the sale to such one of them as offers to pay the highest price above the price ascertained, and where no share-holder offers to buy at or above the price ascertained, the court is required to order the sale to the shareholder who offers to pay the highest price. In view of these provisions it is not right to contend that the transfer of a share would result in splitting up of the holdings and shall be contrary to the intention of the legislature. In our opinion the view taken in Jalpa Sahai's case (supra) that if the sale of a share is permitted, then the very object of Section 168-A is likely to be frustrated because the strangers can subsequently divide the plot and it will result in fragmentation does not appear to be sound. 6. Our answer to the question referred is that the sale of his entire share in the Bhumidhari by a co-tenure holder where the total area of Bhumidhari land is less than the prescribed area is not hit by the provisions of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act. 7. Let the appeal be listed before the learned single Judge for decision.