JUDGMENT Virendra Kumar, Chairman. - In Revision No. 230 L.R./1974-75, Jai Jai Ram versus Rama Shanker and others, that came up before him under Section 219 of the U.P. Land Revenue Act, the Chairman, Board of Revenue, U.P. finding that conflicting interpretations had been given by two Hon'ble Members of the Board, in R.D. 1972 page 6 Mawasi v. Udai Bhan and 1972 R.D. 265, Neksa v. Ninua on the issue of transfer of a share in a holding which is a fragment observed as follows in his referring order dated October 10, 1977:- "In both the ruling of the Board (R.D. 1972 page 6 and R.D. 1972 page 265) the Hon'ble High Court's ruling reported in R.D. 1971 page 518, Santaokhi v. Board of Revenue, has been considered by the then Hon'ble Members of the Board who decided those ceases and have interpreted the High Court's decision in their own way. In these circumstances I think it is necessary to refer this matter to the Bench for deciding the following legal question involved in this case. "Whether the transfer of a share in an undivided holding of which the total area is itself a fragment, is hit by the provisions of section 168-A of U.P.Z.A. and L.R. Act or not." 2. The Chairman had found that in the instant case the entire land was a fragment and th share in the fragment had been sold and the learned counsel on one side had argued that this transfer was hit by Section 168-A of the U.P.Z.A. and L.R. Act, placing reliance on the ruling in R.D. 1972 page 265 in which the Hon'ble Member observed that "a share cannot come under the definition of a fragment unless the entire land was in itself a fragment". The position taken by the learned counsel on the other side was that prohibition in Section 168-A did not apply to a transfer of undivided interest in a holding made by a co-Bhumidhar, placing reliance on the ruling in 1972 R.D. 6, in which the Hon'ble Member held that the prohibition of Section 168-A did not apply to transfer of undivided interest in the holding made by a co-Bhumidhar, if what was transferred was not a fragment but only a share or interest in an undivided holding. As in the previous ruling, in this ruling also reliance was placed on the ruling of the Allahabad High Court as laid down by B.N. Lokur, J., in Santokhi v. Board of Revenue, U.P. and others, reported in 1971 R.D. 518. 3. Sri B.K. Gupta, Advocate and Sri R.A. Upadhya, Advocate appeared before us and argued for and against the question of law under the consideration of this bench. 4. Sri B.K. Gupta, argued that the transfer made by a co-tenant in respect of his entire share in a consolidated area would be valid only in that position where the entire holding out of which this share was transferred was itself not a fragment. He said that if the total of the holding itself was a fragment the transfer of a share by a cotenant would be hit by section 168-A, as held in 1972 R.D. 6. 5. Sri Upadhya, however, argued that the identical question of law was considered by a Division Bench of the Allahabad High Court and question referred to it was answered by K.N. Singh and K.N. Seth, JJ. as reported in 1977 R.D. 313, Bibhuti v. Kashi Ram. He said that the section itself did not impose any restriction on the power of transfer, even if the holding was a fragment and that the exception given in the section clearly showed that the entire undivided interest of a Bhumidhar in a fragment was transferable in a plot situated in a consolidated area. He contended that Section 168-A made no distinction between transfer of a share in a holding which was not a fragment and of a share in a holding which was a fragment. In the ruling of 1971 R.D. 518, Santokhi v. Board of Revenue, the Hon'ble Justice B.N. Lokur had observed as follows:- "Where undivided interest of one of the co-tenure holders is transferred, it cannot be said that the transfer involves transfer of a 'fragment' or, in other words, transfer of a land of less extent than 3.25 acres, for the simple reason that what is transferred is undivided interest in the land and not any specific land. The prohibition contained in section 168-A is in respect of land which is a fragment, i.e., which is lesser in extent than the prescribed area and not of undivided interest in the land. The prohibition contained in section 168-A is in respect of land which is a fragment, i.e., which is lesser in extent than the prescribed area and not of undivided interest in the land. That being so Section 168-A, as it stood, had no application where a co-tenure holder transferred his undivided interest in the land. "By the U.P. Land (Second Amendment) Act, 1961 the original words in Section 168-A 'whole of the plot to which the fragment pertains is thereby transferred' where substituted by the words: 'the whole, or so much of the plot in which the tenure holder has Bhumidhari rights', which pertains to the fragment is thereby transferred. The effect of this amendment is that a third exception was engrafted in the section namely, transfer of a portion of a plot in which the tenure-holder has Bhumidhari rights. This amendment also envisages that the plot is in two portion, in one of which the tenure-holder has Bhumidhari rights and the other in which the tenure-holder has Sirdari rights permits transfer of that portion of the plot in which he has Bhumidhari rights. The amendment makes no difference in the view I have take in respect of transfer of fragment under the unamended section." The two exceptions referred to in this extract are: (1) transfer of a fragment in favour of a tenure-holder who has a plot contiguous to the fragment; (ii) transfer a fragment in favour of any person, provided the transfer is of the whole of the plot to which the fragment pertains. In the ruling in (1972 R.D. 6 Mawasi v. Udai Bhan), Sri S.N. Mehrotra, the then Hon'ble Member referring to the case before him and considering the scope of Section 168-A observed as follows:- "This fact shall have to be kept in mind that undivided interest of one co-Bhumidhar is being transferred. This cannot be said to mean that the transfer involves transfer of a fragment, for the simple reason that what has been transferred is undivided interest in the land and not any specific land. The provisions of Section 168-A pertains to a fragment and not undivided interest in a holding. Thus provisions of section 168-A have got no application where a co-Bhumidhar transfers his undivided interest in the land. Once the land in dispute is not a fragment, the question of the transfer being covered within the second exception does not arise. The provisions of Section 168-A pertains to a fragment and not undivided interest in a holding. Thus provisions of section 168-A have got no application where a co-Bhumidhar transfers his undivided interest in the land. Once the land in dispute is not a fragment, the question of the transfer being covered within the second exception does not arise. This view finds support from the case law laid down by the Allahabad High Court in Santokhi v. Board of Revenue, U.P. and other (1971 R.D. 518, already referred to above)." In the same R.D. 1972 at page 264 (Neksa v. Ninua) another learned Member, Sri M. Zaheer, considering the scope of Section 168-A observed as follows. "The transfer was made of a share in a joint holding and a share cannot be regarded as a fragment unless the entire land in which the share is claimed is in itself a fragment unless the entire land is not a fragment and, therefore, the share cannot be a fragment...I am also supported by the decision of the Hon'ble High Court in Civil Misc. Writ No. 4304 of 1969, reported on pages 518 to 520 of R.D. 1971. The intention of the legislature was to restrict fragmentation of the consolidated holding but not to restrict devolution of shares." 6. We find that the ruling of the Division Bench of the Allahabad High Court as reported in 1977 R.D. 313, which had not been published at the time the reference was made to this Bench, answers the question in consideration before us very lucidly. The Hon'ble Judges of the High Court observed as follows on this question:- "The prohibition contained in Section 168-A is in respect of any 'fragment' of land situate in a consolidation 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 transferor 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. 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'. 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'. "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 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 possible or convenient to continue as co-tenure-holder. 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-eight acres, the court shall instead of proceedings 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. Whether 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 them to the share-holder 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 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." "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. The reference, therefore, stands answered accordingly.