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2019 DIGILAW 2206 (ALL)

Laxmi Bricks Ujrai v. Dariyab Singh

2019-09-19

SIDDHARTHA VARMA

body2019
JUDGMENT : Siddhartha Varma, J. 1. A suit being Original Suit No. 1064 of 1993 was filed by the plaintiff-appellant for the relief of cancellation of a sale-deed dated 27.6.1984. Alongwith the prayer for cancellation of the sale-deed, a permanent injunction for restraining the defendants from interfering with the plaintiff's possession over the suit property and also for putting the plaintiff into possession if he was found to be out of it was also prayed for. 2. The case of the plaintiff was that while the plaintiff was the son of one Shiv Charan, he was adopted by his uncle namely Natthi Lal and while he was still a minor, his date of birth being 17.3.1973 as per his High School certificate and 15.9.1974 as per the school leaving certificate, the properties which belonged to him in plot No. 686 were illegally sold off by Shiv Charan after giving out that he was the plaintiff's guardian. Further case taken up in the plaint was that after Natthi Lal had died, the plaintiff was looked after by the daughters of Natthi Lal and Shiv Charan had absolutely no concern with either him or his property. The suit was filed on 14.9.1994 within three years of the plaintiff reaching 18 years of age as per the date of birth given in the High School certificate. 3. The plaintiff had stated that the property contained in plot No. 686 was around 27 bighas and 17 biswas and half of this property belonged to the plaintiff. Even though only 5 and half bigha was sold by the sale-deed which was under challenge, it was averred in the sale-deed that Shiv Charan who was selling his property was also selling a portion of the property of the plaintiff. The property was sold by Shiv Charan vide sale-deed dated 27.6.1984 to the defendant No. 1 namely Laxmi Bricks through its Proprietor the defendant No. 2-Brij Mohan. Since, the defendant Nos. 1 and 2 had sold the property further to defendant Nos. 3 and 4 on 3.5.2001, they were also arrayed as defendants in the suit. The defendant Nos. The property was sold by Shiv Charan vide sale-deed dated 27.6.1984 to the defendant No. 1 namely Laxmi Bricks through its Proprietor the defendant No. 2-Brij Mohan. Since, the defendant Nos. 1 and 2 had sold the property further to defendant Nos. 3 and 4 on 3.5.2001, they were also arrayed as defendants in the suit. The defendant Nos. 1 and 2 contested the suit and stated that the plaintiff though was the adopted son of Natthi Lal, after the death of Natthi Lal, was under the guardianship of his de-facto father Shiv Charan and since the properties were joint, the natural father Shiv Charan had the authority to sell the land and, therefore, no fault could be found by the plaintiff in the sale-deed. 4. While the suit was being contested, there were eight issues framed and the Trial Court, while deciding the suit, gave a finding of fact that the suit was bad for non-joinder, Shiv Charan having not been made a defendant. It also held that as the property was joint between the plaintiff and his natural father Shiv Charan and as no partition was there, there was no requirement under section 12 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the 'Act') for the appointment of a guardian by the Court. It also held that the properties were of the Hindu Undivided Family (HUF). The Trial Court also held that since the property was not divided, it could also be held that the land measuring 5 bighas and 10 biswas which was sold was only from the property of Shiv Charan and nothing was sold from the property of the plaintiff. With these observations, the suit was dismissed. 5. The First Appellate Court formulated a definite question for determination which was as to whether the sale-deed dated 27.6.1984 by Shiv Charan, the natural father of the plaintiff was rightly executed or not. The First Appellate Court came to a definite conclusion that the suit was filed within the limitation provided by the Limitation Act. It also held that since the sale-deed had mentioned that the plaintiff's share was also being sold, then half of the property sold i.e., half of 5 bighas and 10 biswas was that of the plaintiff. The First Appellate Court came to a definite conclusion that the suit was filed within the limitation provided by the Limitation Act. It also held that since the sale-deed had mentioned that the plaintiff's share was also being sold, then half of the property sold i.e., half of 5 bighas and 10 biswas was that of the plaintiff. Further it held that since the plaintiff-appellant had been adopted by Natthi Lal, the property which devolved upon him was the property of Natthi Lal and it had nothing to do with the share of the property of Shiv Charan. There was in fact nothing which was joint and thereafter the First Appellate Court having setting aside the finding as had been arrived at by the Trial Court that there was no requirement of a guardian under section 12 of the Act, allowed the First Appeal and held that since no guardian had been appointed, the sale of the portion of the property belonging to the plaintiff was bad in law. 6. The instant Second Appeal was filed by the defendant-appellants before this Court. The following substantial questions of law were formulated: "1. Whether the lower Appellate Court has illegally allowed the civil appeal without meeting out the reasoning and setting aside the findings recorded by the Trial Court and as such the judgment and decree dated 11.8.2017 passed by Lower Appellate Court is vitiated in law? 2. Whether no permission of District Judge was required for transfer of minor's undivided share in the joint family property made by manager (Karta) of the family when admittedly the land in suit is HUF property under section 12 of Hindu Minority and Guardianship Act 1956 which was not denied by the plaintiff in his replication nor any evidence was led and as such the suit was liable to be dismissed on this ground alone?" 7. So far as the first question of law is concerned, this Court feels that a bare reading of the two judgments clearly shows that the First Appellate Court had allowed the First Appeal after reversing all the findings recorded by the Trial Court. So far as the first question of law is concerned, this Court feels that a bare reading of the two judgments clearly shows that the First Appellate Court had allowed the First Appeal after reversing all the findings recorded by the Trial Court. The most important finding that the property was a joint one and that no guardian was required, was definitely set aside by the First Appellate Court by saving that the property was not joint and if the sale-deed had to be held valid then a definite requirement of a guardian was there. 8. So far as the second substantial question of law is concerned, learned Counsel for the appellants stated that the plaintiff had not been able to prove that there was any division between himself and his natural father. He, therefore, submits that no requirement of the appointment of a guardian by the Court, as per section 12 of the Act, was required. In this regard, learned Counsel for the appellants relied upon a decision of this Court reported in Smt. Ramwati and others v. Dharmdas : 2013 RD (120) 842. 9. Learned Counsel for the plaintiff-respondent, however, stated that under the U.P. Zamindari Abolition and Land Reforms Act, 1950, an agricultural land upon the enactment of the U.P. Zamindari Abolition and Land Reforms Act, 1951 vested in the State of Uttar Pradesh and thereafter individually all tenure-holders became bhumidhars in their own rights. Natthi Lal and Shiv Charan became bhumidhars under the U.P. Zamindari Abolition and Land Reforms Act in their own rights. Even if there was no partition by metes and bounds, the shares of the two namely Natthi Lal and Shiv Charan were separate. One could not have dealt with the property of the other..When Natthi Lal died, his share was inherited by his son - the plaintiff. Shiv Charan who was a separate identity (a separate bhumidhar) could not have dealt with the properties of either Natthi Lal or of his son, the plaintiff. If Shiv Charan wanted to sell a share of his property he was free to do so, but under no circumstance could he have sold the properties of Natthi Lal or his successor, the plaintiff. If Shiv Charan wanted to sell a share of his property he was free to do so, but under no circumstance could he have sold the properties of Natthi Lal or his successor, the plaintiff. Since the concept of personal law had not been adopted by the Zamindari Abolition Act, the concept of Hindu Undivided Family (HUF) also could not be said to be governing the inheritance or ownership under the Zamindari Abolition Act. Learned Counsel, therefore, submitted that the decision reported in Smt. Ramawati and others v. Dharmdas : 2013 RD (120) 842 since had not taken into consideration the provisions of Zamindari Abolition Act, could not be said to be a decision which could be relied upon in the instance case. He, therefore, submitted that the First Appellate Court correctly decided the case. Learned Counsel submitted that the Full Bench decision of Ram Awalamb and others v. Jata Shankar and others 1968 RD 470 was not considered in : 2013 RD (120) 842 in its right perspective and, therefore, the decision reported in 2013 RD (120) 842 could not be relied upon in this case. Learned Counsel referred to para 44 of the Full Bench decision of Ram Azvalamb (supra) and, therefore, the same is being reproduced here as under: "44. Our conclusions can, therefore, be briefly summarised as follows: (1) Where members of a joint Hindu family hold bhumidhari rights in any holding, they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot be invoked to determine that status. (2) Where in certain class of tenancies, such as permanent tenure holders, the interest of a tenant was both heritable and transferable in a limited sense and such a tenancy could, prior to the enforcement of the Act, be described as joint family property or coparcenary property, the position changed after Act I of 1951 came into force. Thereafter the interest of each bhumidhar, being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself, must be deemed to be a separate unit. (3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member. (3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member. (4) The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by section 152 of the Act and by no other restriction. The provisions of Hindu law relating to restriction on transfer of coparcenary land, e. g., existence of legal necessity, do not apply." (Emphasis supplied) 10. Having heard learned Counsel for the appellants and the learned Counsel for the plaintiff, this Court is of the view that the First Appellate Court correctly reversed the findings therein and held that there was no joint ownership and, therefore, correctly came to a conclusion that if any sale of the property of a minor had to take place, then a guardian ought to have been appointed. In the instant case, since there was no jointness of the properties of the successor of Natthi Lal i.e., the plaintiff and of Shiv Charan, the latter could not have dealt with the properties of the successor of Natthi Lal at all as a Karta. The second substantial question of law is also, accordingly, answered. 11. Under such circumstances, the substantial questions of law, as have been framed, are answered. 12. The Second Appeal is, accordingly, dismissed.