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Case Number

Second Appeal No. 567 of 1973

Attorney(S)

S/Sri Swaraj Prakash
H. S. Joshi
A. N. Srivastava
Rameshwar Nath
C. B. Yadav
Advocates
for Appellant S/Sri K.K. Bajpai
Faujdar Rai
A. N. Bhargava
Ashok Trivedi
Dr. Madhu Nandan
G. N. Verma
Advocates
for the Respondents.

Judges

Hon'ble Mr. Justice Yatindra Singh

Acts

Sections 166, 167, 168, 168-A and 189 clause (cc) (Section 189(cc) of U.P Zamindari Abolition and Land Reforms Act, 1950 (the Act)
Subsection (3) of Section 168-A applied the provisions of Sections 167 and 168
clause (cc) of sub-section (1) of Section 190(section 190(1)(cc))
SECTION 41 TRANSFER OF PROPERTY ACT
open.48. Section 19(b) of the SRA and Section 41
provisions of this Act.26. Section 167 and 168
India.25. Section 167, 168, 189(aa) and 190(1)(cc)
Section 3 of the Transfer of Property Act19
3-8-198111). Sections 3(6-A), 3(8-A) and 168-A
Section 167 by the U.P Act No. 20 of 1982
Section 6 of the U.P Act No. 20 of 1982
Section 41 of the TPA and Section 19(b)
Section 19(b) of the SRA or Section 41
Section 167 makes Section 168
Section 19(b) of the SRA.23.45.
Sections 189 (aa) and 190(1)(cc).
sub-section (2) of Section 167
1956. Section 189(aa)
Section 3(8-A)(b)
Section 19(b)

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This appeal arises from a suit filed by Sri Fateh Bahadur Singh (plaintiff) for specific performance of an unregistered contract to sell dated 5-4-1966, by which he alleged he contracted to buy plot No. 249 (10 Bigha 12 Biswa 10 Biswansi) from Sri Jang Bahadur Gupta (defendant No. 1) for Rs. 5,000, having paid Rs. 4,000 as earnest money. Defendant No. 1 executed two sale deeds in 1966: one on 2-9-1966 transferring half the plot to defendant No. 2 for Rs. 1,000, and another on 21-12-1966 transferring the remaining half to defendant No. 3 for Rs. 2,000. The plaintiff discovered the sale deeds in May 1970 and sued for specific performance.

The trial Court decreed recovery of the earnest money with interest but dismissed the suit for specific performance, finding (inter alia) that defendant Nos. 2 and 3 were bona fide purchasers for value without notice and that the sale deeds did not amount to prohibited fragmentation under Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (the Act). The appellate Court agreed with much of the trial Court's findings but held the first sale deed (2-9-1966) void under Section 168-A as a transfer of a fragment, and held that rights of defendant No. 1 in respect of that portion were extinguished under Section 189(aa) on the date of that transfer; the second sale deed was held valid. A single Judge later allowed the plaintiff's second appeal on the ground that Section 189(aa) had not been considered, but the Apex Court allowed an appeal by defendant Nos. 2 and 3 and remitted the matter for fresh decision applying law in force at the time of the sales. The present opinion is the High Court's fresh decision on remand.

Legal Issues Presented

Is 5 Bigha 6 Biswa 6 Biswansi a "fragment" within the meaning of Section 3(8-A) of the Act (as applicable in Fatehpur)?
In a transfer contrary to Section 168-A of the Act, when do the rights of a Bhumidhar (transferor) come to an end: on the date of the transfer or only upon ejectment in a suit by the Gaon Sabha?
Are the two sale deeds in favour of defendant Nos. 2 and 3 contrary to Section 168-A of the Act and therefore void?
Are defendant Nos. 2 and 3 bona fide purchasers for consideration and without notice of the agreement to sell? If so, what is the effect — are these sale deeds protected under Section 41 of the Transfer of Property Act (TPA)? What is the effect of Section 19(b) of the Specific Relief Act (SRA)?
Given that specific performance is discretionary, should it be granted in the present case?

Arguments of the Parties

Plaintiff's (Appellant's) Arguments (Sri Rameshwar Nath / Sri Nath)

There was an unregistered contract to sell dated 5-4-1966 and the defendant No. 1 received Rs. 4,000 as earnest money.
The rights of a transferor who transfers land contrary to Section 168-A do not extinguish on the date of transfer; they survive until the transferee (or person in possession) is ejected in a suit by the Gaon Sabha. Reliance was placed on Section 163 (as argued) and earlier case observations.
The courts below had recorded as a fact that 5 Bigha 6 Biswa 5 Biswansi (and similar measures) constituted a fragment; that finding should bind the defendants who earlier admitted it.
By Explanation II of Section 3 of the TPA and by reason of possession (as contended), the defendants should be deemed to have notice of the contract to sell.
Challenged factual findings (possession) recorded by the appellate Court as illegal and argued the trial Court's find of possession supported plaintiff's claim.

Defendants' (Respondents') Arguments (Sri G.N. Verma)

There was no agreement to sell in favour of the plaintiff (defendants denied the contract's effect).
Defendant Nos. 2 and 3 are bona fide purchasers for valuable consideration and without knowledge of the agreement to sell; they took reasonable care and acted in good faith, and their title is protected under Section 41 of the TPA.
The sale deeds are not hit by Section 168-A of the Act (argument that the area transferred was not a "fragment" or, alternatively, that there was community of interest and no fragmentation because the purchasers are mother and daughter living together).
Relied on authorities (Chandni v. Anant Bali; Nainsukhdas v. Gowardhandas; Mathura Prasad v. Mst. Anandi Kunwar) to show reasonable care is a question of fact and that entries in revenue records sufficed for inquiry.
Where applicable, Section 19(b) of the SRA would prevent grant of specific performance against a bona fide purchaser; Section 41 TPA also affords protection.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chandni v. Anant Bali, AIR 1943 Oudh 398	That reasonable care is a question of fact depending on the circumstances of the case.	The Court accepted the proposition that reasonable care is fact-sensitive and treated the lower courts' findings on reasonable care and bona fides as binding factual findings.
Nainsukhdas v. Gowardhandas, AIR 1948 Nagpur 110	Also cited for the principle that reasonable care is a question of fact.	Used to support the view that factual findings on reasonable inquiry and good faith are binding and cannot be disturbed in second appeal.
Mathura Prasad v. Mst. Anandi Kunwar, AIR 1924 All 63	Where the transferor's name is recorded in revenue records, no further inquiry may be required of a purchaser.	Cited by respondent counsel to support the factual conclusion that defendant purchasers had taken reasonable steps, considering the revenue entries in the transferor's favor.
Vibhuti v. Kashi Ram, 1977 All WC 491	Interpreted Section 168-A as not prohibiting sale of a fragment if the entire area held by the transferor is transferred.	The Court relied on this division bench interpretation to hold that the second sale deed (transferring the entire share held by defendant No. 1 on that date) was not hit by Section 168-A and therefore valid.
Tikam Singh v. Chatrapal Singh, 1963 Rev Dec 133	Contains observations suggesting rights may extinguish on ejectment, but relates to transfers made before 7-11-1958.	The Court distinguished this authority because the transfers there pre-dated the insertion of Sections 189(aa) and 190(1)(cc); the observations were treated as obiter and not binding for the present case.
Parmanand v. Board of Revenue, 1966 All LJ 963 (1966 Rev Dec 177)	Contains holding that Sections 189(aa) and 190(1)(cc) are not retrospective; earlier observations relating to extinguishment on ejectment were in the context of pre-7-11-1958 transfers.	The Court relied on this distinction to hold that the cited obiter observations do not govern transfers executed after 7-11-1958 when Sections 189(aa) and 190(1)(cc) were in force.
Anant Ram v. Sheikh Mohammad Ishaq, 1981 Rev Dec 340 (1981 All LJ 839)	Similar earlier-case observations on extinguishment on ejectment where transfer occurred before 7-11-1958.	Distinguished on timing: transfers occurred prior to insertion of Sections 189(aa) and 190(1)(cc); therefore such observations were not controlling here.

Court's Reasoning and Analysis

The Court proceeded by (a) determining whether the impugned transfers constituted transfers of a "fragment" under Section 3(8-A), (b) examining the legislative history of the relevant provisions of the Act as they stood in 1966, and (c) harmoniously construing Sections 167, 168, 168-A, 189(aa) and 190(1)(cc) to decide when rights of a Bhumidhar would be extinguished where a transfer contravened Section 168-A.

Measurement and "fragment" analysis

The Court examined local measures: a standard bigha varies by district; in Fatehpur one bigha equals 1,936 square yards while one acre is 4,840 square yards. A fragment in Fatehpur is 3.125 acres (3.125 x 4,840 = 15,125 sq. yards), which equals 7.8125 bighas. This arithmetic showed that 5 Bigha 6 Biswa 5 Biswansi (the half-share amounts as described) is less than the fragment threshold and therefore qualifies as a fragment in Fatehpur, while the whole plot of 10 Bigha 12 Biswa 10 Biswansi was not a fragment.
The Court declined to bind parties to earlier admissions about area where earlier counsel had erred, stating it would decide the factual question on merits.

Legislative history and textual/harmonious construction

The Court reviewed enactments: Sections 166–168 and 168-A and the later insertion of Sections 189(aa) and 190(1)(cc) by U.P. Act No. 39 of 1958 (effective 7-11-1958). It noted that Sections 167 and 168 (as then framed) were aimed at ejectment proceedings against transferees or persons claiming under them, whereas Sections 189(aa) and 190(1)(cc) operate to terminate the rights of transferors when a holding or part is transferred contrary to the Act.
Applying the principle of harmonious construction, the Court held Sections 167 and 168 operate primarily against transferees and persons claiming under them, while Sections 189(aa) and 190(1)(cc) apply directly to transferors: both sets of provisions must be given effect without making any provision otiose.
Therefore, where a Bhumidhar made a transfer contrary to Section 168-A after the insertion of Sections 189(aa) and 190(1)(cc), his rights were extinguished on the date of such transfer under Sections 189(aa) and 190(1)(cc), and did not await ejectment through a suit by the Gaon Sabha.

Treatment of earlier authorities cited by plaintiff

Cited High Court decisions that suggested extinguishment only upon ejectment were distinguished because the transfers in those cases took place prior to 7-11-1958, i.e. before Sections 189(aa) and 190(1)(cc) were in force. As such, those observations were obiter for purposes of the present facts and not binding.

Application to the sale deeds

The Court concluded that the first sale deed dated 2-9-1966 (transfer of half the plot) conveyed a fragment and was therefore contrary to Section 168-A; under Sections 189(aa) and 190(1)(cc) the transferor's rights in that portion were extinguished on 2-9-1966, making that sale deed void ab initio.
The transferor remained Bhumidhar of the remaining half share until he transferred that whole share on 21-12-1966; the second sale deed, being of the entire area that he then held, was not hit by Section 168-A (relying also on Vibhuti v. Kashi Ram) and was held to be valid.

Bona fide purchaser and protection under statutory provisions

The trial and appellate courts found defendant Nos. 2 and 3 to be bona fide purchasers for value without notice, having acted with reasonable care; these are findings of fact and were treated as binding on second appeal.
The Court held that the second sale deed (in favour of defendant No. 3) is protected and cannot be set aside; while Section 41 of the TPA and Section 19(b) of the SRA both provide protection to bona fide purchasers, the Court preferred to rest its decision on Section 19(b) of the SRA although findings satisfied both tests.
The Court explicitly left open the separate question whether Section 19(b) of the SRA or Section 41 of the TPA could protect an illegal transfer (i.e., whether an illegal transfer in favour of defendant No. 2 could ever be so protected), noting that even if that question were decided adversely to defendant No. 2 it would not help the plaintiff in obtaining specific performance regarding the first sale-deed portion.

Exercise of discretion on specific performance

The Court emphasized the discretionary nature of specific performance. It refused to grant specific performance to the plaintiff for two principal reasons: (a) the first sale deed was void and defendant No. 1 had no rights to convey in respect of that portion on the date of the deed; (b) the defendants were bona fide purchasers for value without notice in respect of the second sale deed and the balance of equities did not favor granting specific performance to the plaintiff.

Holding and Implications

Holding:

The Court's core rulings are:

The rights of a tenure holder (Bhumidhar) who transfers his holding contrary to the Act are extinguished on the date of the transfer. They do not survive until ejectment of a transferee or other person in possession.
The first sale deed dated 2-9-1966 (in favour of defendant No. 2) is void as it is hit by Section 168-A of the Act.
The second sale deed dated 21-12-1966 (in favour of defendant No. 3) is valid.
Defendant Nos. 2 and 3 were bona fide purchasers in good faith for value and without knowledge of the contract to sell; the second sale deed is protected (the Court rested on Section 19(b) of the SRA).
The plaintiff's claim for specific performance is refused and the appeal is dismissed with costs.
The trial Court's decree for return of earnest money with interest against defendant No. 1 remains in force and may be executed by the plaintiff in accordance with law.

Implications and Consequences:

Direct effects on parties: The plaintiff cannot obtain specific performance for the portion sold by the first sale deed (void). The purchaser under the second sale deed (defendant No. 3) retains a valid title protected by the Court's ruling, and defendant Nos. 2 and 3's status as bona fide purchasers stands. The plaintiff retains the decree for return of earnest money against defendant No. 1.
Statutory interpretation: The Court held that Sections 189(aa) and 190(1)(cc) (as in force in 1966) operate to extinguish a transferor's rights on the date of an illegal transfer under Section 168-A, and that these provisions must be harmoniously read with Sections 167 and 168 which mainly address ejectment against transferees.
Open question: The Court explicitly left open whether Section 19(b) of the SRA or Section 41 of the TPA can protect an illegal transfer (the issue of whether an illegal sale to defendant No. 2 could ever be protected). That question was reserved for decision in an appropriate case and was not decided here.
Precedential note: The Court distinguished earlier authorities relied upon by the plaintiff because those decisions involved transfers made before the insertion (7-11-1958) of Sections 189(aa) and 190(1)(cc); accordingly, earlier obiter observations were not treated as controlling.

Order: Appeal dismissed with costs; decree for return of earnest money against defendant No. 1 remains executable.

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Fateh Bahadur Singh v. Jang Bahadur Gupta And Others

1. This appeal, among the other questions, involves with the interpretation of Sections 166, 167, 168, 168-A and 189 clause (cc) (Section 189(cc) of U.P Zamindari “Abolition and Land Reforms Act, 1950 (the Act) as they stood in 1966. The question is that in case of a transfer contrary to the Section 168-A of the Act, when do the rights of transferor come to an end? Are they extinguished on the date of making the transfer contrary to Section 168-A of the Act or upon ejectment in a suit filed by the Goan Sabha?

THE FACTS

2. Sri Fateh Bahadur Singh (the plaintiff) filed a suit for the specific performance of a contract against Sri Jang Bahadur Gupta, Smt. Kalawati Devi and Mithilesh Kumari (the defendant Nos. 1, 2 and 3 respectively) with the allegations that:

The defendant No. 1 was the owner of the plot (Chak) No. 249 (area 10 Bigha 12 Biswa 10 biswansi). He contracted to sell it to the plaintiff within five years by an unregistered contract to sell dated 5-4-1966 for Rs. 5000/-, out of which Rs. 4000/- was given as the earnest money.

The defendant No. 1 sold half share in plot No. 249 to the defendant No. 2 for Rs. 1000/- on 2-9-1966 (the first sale deed)’and remaining half in favour of the defendant No. 3 on 21-12-1966 for Rs. 2000/- (the second sale deed). These sale deeds, apart from other reasons, are illegal as they are of a ‘fragment’ in a ‘consolidated area’ and are hit by Section 168-A of the Act.

The plaintiff came to know about the sale deeds in the month of May 1970 when he received the notices for mutation in respect of the sale deeds and thus filed the suit for specific performance of his contract.

3. The case went to the Apex Court once and has come back on remand. The defendant No. 1 did not put appearance in any of the Courts. Only the defendant No. 2 and 3 are contesting the suit. They allege that:

There is no agreement to sell in favour of the plaintiff.

They are bona fide purchasers, for valuable consideration, and without knowledge of the agreement to sell.

The sale deeds are not hit by Section 168-A of the Act.

4. The Findings of the Courts Below. The trial Court after considering the evidence on record decreed the suit for recovery of the earnest money with interest but dismissed it for the specific performance of the contract on the following findings:

(i) The defendant No. 1 executed the contract to sell in favour of the plaintiff on 5-4-1966 and also received Rs. 4000/- as the earnest money.

(ii) The defendant Nos. 2 and 3 are bona fide purchasers for value in good faith of the land without any notice of the contract to sell and are protected under Section 41 of the Transfer of Property Act (the TPA).

(iii) Half share of plot No. 249 (area 5 bigha 6 biswa 5 biswansi) is a fragment in a consolidated area. The sale deeds are in favour of the defendant Nos. 2 and 3, who are mother and daughter. There is community of Interest and there is no fragmentation of the plot No. 249. The sale deeds are not hit by Section 168-A of the Act.

5. The plaintiff filed an appeal. It was dismissed. The appellate Court agreed with the trial Court on the first three findings but disagreed with the third finding, though it did not change the fate of the case. The appeal was dismissed. The appellate Court so far as the third finding is concerned has held that:

The first sale deed dated 2-9-1966 in favour of the defendant No. 2 is of a fragment situate in a consolidated area and is hit by Section 168-A of of the Act: it is void.

The rights of the defendant No. 1 in respect of of the land that was subject-matter of the first sale deed are extinguished under Section 189(aa) of the Act on the date of the transfer.

The second sale deed dated 21-12-1966 was of a fragment in a consolidated area but as it is of the entire share of the plaintiff on that date, It is not hit by Section 168-A of the Act and is valid.

The suit for specific performance of the contract can not be decreed though the first sale deed is invalid as the defendant No. 1 lost all his rights, interest in the property on the date of the transfer under Section 189(aa) of the Act.

6. The Finding in the Previous Bound

7. A single Judge earlier allowed the plaintiffs second appeal on the grounds:

* The two sale deeds in favour of defendant No. 2 and 3 were of fragments in a consolidated area and are illegal.

* The benefit of Section 43(it appears to be wrongly mentioned for Section 41) of the 1PA can not be availed of by the defendant Nos. 2 and 3 as the sale deeds, being illegal, can not be looked into.

8. But the single Judge did not refer to Section 189(aa) of the Act or its consequences on the illegal sale deeds before allowing the appeal.

9. The defendant Nos. 2 and 3 filed an appeal before the Apex Court. It was allowed on the ground that the Single Judge neither referred to Section 189(aa) of the Act, nor applied the law prevailing at the time of the sales. The case has come back to the High Court for fresh decision in accordance with law applicable to the facts of the case.1

POINTS FOR DETERMINATION

10. I have heard Sri Rameshwar Nath, counsel for the plaintiff-appellant and Sri GN Verma, counsel for the defendant-respondent Nos. 2 and 3. The following points arise for determination.

(i) Is 5 Bigha 6 Biswa 6 Biswansi a fragment within the meaning of Section 3(8-A) of the Act?

(ii) In a case of a transfer contrary to Section 168-A of the Act, when do the rights of a Bhumidhar come to an end? Are they extinguished on the date of a transfer contrary to Section 168-A of the Act or only when the Gaon Sabha ejects him or his transferee in a suit?

(iii) Are the two sale deeds in favour of defendant No. 2 and 3 contrary to Section 168-A of the Act and therefore void?

(iv) Whether the defendant Nos. 2 and 3 are bona fide purchasers, for consideration, and without notice of the agreement to sell? What is its effect? Are these sale deeds protected under Section 41 of the Transfer of Property Act (the TPA)? What is the effect of Section 19 clause (b) (Section 19(b) of the Specific Relief Act (the SRA)?

(v) The grant of Specific Performance is discretionary. Should (or rather can) it be granted in the present case?

1ST POINT: THE SALE DEEDS ARE OF A FRAGMENT

11. Section 168-A2 of the Act prohibits transfer of a fragment in a consolidated area and such transfers are void. This has been done in order to avoid fragmentation of a holding. The word ‘consolidated area’ and ‘fragment’ are defined in Section 3(6-A)3 and (8-A)4 of the Act. Sri Verma admitted that the plot was in a consolidated area but submitted that an area of 5 Bigha 6 Biswa Ej Biswansi is not a fragment. The land in dispute is in Fatehpur and is governed by Section 3(8-A)(b) of the Act. An area less than 3.125 acres in Fatehpur is a fragment. According to Sri Verma 3.125 acres is equal to 5 Bighas and the land subject-matter of sale deeds being more than 5 Bighas is not a fragment. He has also brought to my notice para 985 of the Gaon Sabha Manual applicable at that time to show that 3.125 acre is equal to 5 standard bighas.

12. Sri Nath has submitted that:

* The courts below have recorded a finding that 5 Bigha 6 Biswa and 5 Biswansi is a fragment. It is finding of fact.

* The aforesaid fact was admitted on the earlier occasion before the High Court and before the Apex Court and the defendants No. 2 and 3 should not be permitted to raise this plea.

13. He however admitted that 10 Bigha 12 Biswa 10 Biswansi (the entire area of plot No. 249) is not a fragment and it was wrongly admitted to be a fragment by the counsels before the Apex Court.

14. It will not be proper to bind the parties to their admissions. I should decide this point on merits in view of the following reasons:

* The areas of an Acre and a standard Bigha are the same throughout Uttar Pradesh but the area of a Bigha is different in different parts of this State. This perhaps was not in the knowledge of the counsels for the parties on the earlier occasion,

* The counsels agree that part of the concession before the Apex Court was in-.correct.

* The books Including Government publications wrongly gave the impression that ‘area mentioned in Section 3(8-A)(b) of the Act in 1966 was 6.25 acres in place of 3.125 acres. In fact area in Section 3(8-A)(b) was always 3.125 acres. It was no different in 1966 (detailed in Footnote No. 4).

15. The Board of Revenue, U.P has published a book ‘Krushi Garna’ 1995–96. It provides area in a bigha in different districts of the State. It says that one bigha in Fatehpur, where the land in dispute is situate, is equal to 1936 square yards (and the standard Bigha is equal to 3025 Sq. Yards). One acre is equal to 4840 Square Yards. A fragment in Fatehpur is of 3.125 acres or 3.125 into 4840 = 15125 Square yards. This Is equal to 15125 divided by 1936 = 7.8125 Bighas in Fatehpur. This shows that 5 Bigha 6 Biswa and 5 Biswansi is a fragment in Fatehpur though 10 Bigha 12 Biswa 10 Biswansi is not a fragment.

2ND POINT: THE RIGHTS OF TRANSFEROR ARE EXTINGUISHED ON THE DATE OF TRANSFER.

16. Legislative History

17. The defendant No. 1 was a Bhumidhar. He executed two sale deeds. These sale deeds were of a fragment in a consolidated area. The answer to the following question:

Whether both the sale deeds were contrary to Section 168-A of the Act or only the first one as held by the first appellate Court.

depends upon the answer to the following question,

When do the rights of a Bhumidhar transferring the land contrary to Section 168-A are extinguished?

18. The sale deeds were executed in 1966 and the answer to the above question depends upon the interpretation of Section 1666……………1677, 1688, 168-A (already quoted in footnote-2), Section 1899 and Section 19010 as they stood in 1966. Sections 166, 167 and 168, were enacted along with the Act (Sections 166 and 167 at present have been newly substituted by Section 6 of the U.P Act No. 20 of 1982 with effect from 3-8-198111). Sections 3(6-A), 3(8-A) and 168-A were introduced by U.P Act No. 17 of 1956 and came into force at once namely on 28 of May, 1956. Section 189(aa) (relevant for this case) and clause (cc) of sub-section (1) of Section 190(section 190(1)(cc)) were added by U.P Act No. 39 of 1958 and came into force as once namely on 7-11-1958.

19. Section 163 of the Act has no application.

20. Sri Nath counsel for the plaintiff-appellant has submitted that the rights of a transferor, in the land transferred contrary to Section 168-A of the Act, will not came to an end unless the transferee and the transferor are ejected in a suit by the Gaon Sabha. Sri Verma on the contrary has submitted that they will come to an end on the date when the transfer contrary to Section 168-A of the Act is made. Sri Nath the counsel for the appellant in support of his submission placed reliance on Section 16312 (this section at present has been deleted by U.P Act No. 20 of 1982 w.e.f 3-6-1981. Kindly see footnote-11). Section 163 of the Act does not apply to the transfers made in this case.

21. Section 163 applies to a transfer of a holding or part there of which has made in contravention of Section 15413 of the Act. Section 154 of the Act prohibits a Bhumidhar to transfer any land to a person (except for under certain circumstances) whose land together with the land transferred would exceed twelve and half acres of land. Section 154 and 163 were enacted in order to put a ceiling on the land whereas Section 168-A of the Act was enacted in order to prevent fragmentation of a holding. There is no case that sale-deeds here are in violation, of Section 154 and Section 163 of the Act does not apply.

22. Sections 167 and 168 of the Act in 1966 provided extinction of rights in certain circumstances. These sections at that time applied to a sirdar and an Asami. Subsection (3) of Section 168-A applied the provisions of Sections 167 and 168 to a Bhumidhar who transfers land contrary to sub-section (1) of Section 168-A of the Act. Apart from these sections the rights of a tenure holder can be extinguished under Sections 189 and 190 of the Act. The relevant parts of these sections are Sections 189 (aa) and 190(1)(cc). These four sections have to be harmoniously interpreted to find out if the rights of a Bhumidhar are extinguished on the date of the transfer contrary to Section 168-A of the Act or on a date when the transferee or any other person in possession is ejected upon a suit filed by the Gaon Sabha.

23. Harmonious construction

24. The Principal of harmonious construction is as old as our civilisation. Justice M. Rama Jois in his classic, ‘Legal and Constitutional History of India’ Volume 114 explains that Maharishi Jaimini is the first known author to propound the different principles of interpretation under title Mimansa (rules of interpretation). The principle of Samanjasay (Harmony) axiom is that contradiction should not be easily assumed. In such a case the provisions should be interpreted so as to give effect to both of them; they should be reconciled. There is no dearth of modern literature15 on harmonious construction. They say the same thing as was propounded by Maharishi Jaimini in ancient India.

25. Section 167, 168, 189(aa) and 190(1)(cc) have to be harmoniously interpreted. In Section 167, the use of the words ‘the transferee and other persons who may have thus obtained possession… shall be liable for ejectment’ indicates that Section 167 was meant for ejectment of a transferee or person claiming under him. The words in Section 168, ‘upon ejectment in a suit under Section 167’ makes Section 168 applicable to a suit under Section 167 of the Act i.e a suit against transferee or a person claiming under him. It is true that at that time sub-section (2) of Section 167 provided that ‘decree of ejectment… may direct for Ejectment of Sirdar or Asami’ and Section 168 of the Act also provided upon ‘ejectment……all the rights and interests or Sirdar and Asami in the holding……shall be extinguished’. But these provisions:

* neither made a suit under Sections 167 and 168 to be (primarily) against the transferor, it essentially remained against transferee or person claiming under him,

* nor can they take away the width and impact of Sections 189(aa) and 190(1)(cc), ‘which provide that the interest of ‘Bhumidhar and Sirdar will come to an end when holding or a part is transferred contrary to the provisions of this Act.

26. Section 167 and 168 do not eclipse the scope of Section 180(aa) and 190(1)(cc) of the Act. Sections 167 and 168 apply to transferees and persons claiming under them. Sections 189(aa) and 190(1)(cc) apply to the transferors. To read them otherwise or to make Sections 167 and 168 applicable to transferors despite Sections 189(aa) and 190(cc) of the Act is to make Sections 189(aa) and 190(1)(cc) a dead letter. To harmonise is not to destroy or to render it otiose but to give life to both of them.

27. Once the rights and interest of a tenure holder have come to an end he may be ejected under Sections 122 or 194 or 202 or 209 of the Act. It is true that for a short period Section 194 did not envisage ejectment of a tenure holder losing rights under Sections 189(aa) and 190(1)(cc) of the Act but this does not mean that suit for their ejectment could not be filed under general law and the only recourse open to Gaon Sabha was a suit under Sections 167 and 168 of the Act. The rights and interest of a tenure holder are extinguished on the date of making a transfer contrary to the Act under Sections 189(aa) and 190(1)(cc) of the Act. I am not alone in taking this view but in company of two other single Judge of this Court16. Of course this questions will not arise after substitution of the new Section 167 by the U.P Act No. 20 of 1982 (kindly see footnote 11) as the land subject-matter of transfer now stands vested in the State Government.

28. Cases cited by the counsel of the plaintiff.

29. Sri Nath counsel for the plaintiff has cited three decisions of the High Court17 reported in Tikam Singh v. Chatrapal Singh (the Tickam Singh, case, 1963 Rev Dec 133, Parmanand v. Board of Revenue (the Parmanand, case) 1966 All LJ 963 : 1966 Rev Dec 177, and Anant Ram v. Sheikh Mohammad Ishaq (the Anant Ram case) 1981 Rev Dec 340 : (1981 All LJ 839). In these cases certain observations have been made which support his contention that rights of a tenure holder transferring his land contrary to Section 168-A of the Act are extinguished only upon ejectment of the transferee or a person in possession upon a suit filed by a Gaon Sabha. These cases are distinguishable.

30. In the three cases mentioned in the previous paragraph, the transfers were made prior to 7-11-1958 the date when Sections 189(aa) and 190(1)(cc) were enforced. In the Tikam Singh case, (1963 Rev Dec 133) the gift-deed was made of a Sirdarl land on 27-6-1955. In the Parmanand case the licence or the lease (as alleged by the plaintiff or the defendant in that case) was made in 1954 and in the Anant Ram case, (1981 All LJ 839) lease-deed was executed on 25-8-1952. These transfer deeds were not affected by the insertion of Sections 189(aa) and 190(1)(cc) of the Act. These sub-sections are not retrospective it was so held in the Parmanand case, (1966 All LJ 963).18 The point in consideration in this case about the interpretation of sub-Sections 189(aa) and 190(1)(cc) of the Act never arose in these cases. The observations in these cases are merely obiter and not binding. Apart from this, in the Parmanand case and the Anant Ram, transferor did not transfer all his rights. He had merely transferred some of his rights whereas in the present case the transferor has transferred all of his rights. These cases are distinguishable.

3RD POINT: THE FIRST SALE DEED IS ILLEGAL THE SECOND SALE DEED IS VALID.

31. The defendant No. 1 transferred half share in the plot No. 249 by the first sale-deed dated 2-9-1966. It is a fragment in a consolidated area (first point paragraph No. 9 to 12). The first sale deed was of a fragment of a part of holding in favour of the defendant No. 2 who did not have a plot contiguous to it. The defendant No. 1 did not sell his entire holding by the first sale deed. It was contrary to Section 168-A of the Act and the rights of the defendant No. 1 were extinguished on 2-9-1966 in respect of this area. But the defendant No. 1 remained Bhumidhar of the remaining half share in plot No. 249 namely 5 Bigha 5 Biswa and 5 Biswansi.

32. The defendant No. 1 executed the second sale deed of the remaining half share in plot No. 249 namely 5 Bigha 6 Biswa 5 biswansi on 2-12-1966. This was the entire area held by him on 2-12-1966. His rights were already extinguished in respect of other half share on 2-9-1966. This sale deed was of the entire area held by him in plot No. 249, Section 168-A, does not prohibit the sale of a fragment if entire area is transferred. It has also been so interpreted by a division Bench of this Court in Vibhuti v. Kashi Ram, 1977 All WC 491.

33. The second sale deed in favour of the Defendant No. 3 is valid.

34. Sri Verma, counsel for the defendant No. 2 and 3 submitted that the first sale-deed is also valid in view of the reasons that:

* The intention of 168-A is to avoid fragmentation.

* The defendant No. 2 is the mother of the defendant No. 3. They live together. There is community of interest and these two sale-deeds have been executed in favour of persons living together.

* There is no fragmentation in the present case.

35. The aforesaid submission can not be accepted. The sale deed dated 2-9-1966 was contrary to Section 168-A of the Act and void on the date it was executed. It is not possible that by execution of the second sale deed, the first one is validated. If the contention of Sri Verma is accepted then the sale deed would be contrary to Section 168-A of the Act and void from 2-9-1966 to 21-12-1966, but would become valid after 21-12-1966. There is nothing in the Act or any provision of law to validate a void sale deed on such a ground. I am afraid, I can not accept it though this aspect will have some bearing while deciding the last point namely should discretion be exercised in favour of the plaintiff to grant him relief of specific performance of the contract or not.

IVTH POINT: THE DEFENDANT NOS. 2 AND 3 ARE BONA FIDE PURCHASER FOR CONSIDERATION WITHOUT NOTICE OF AGREEMENT TO SELL.

36. The contract to sell in favour of the plaintiff is dated 5-4-1966. It is an unregistered document. The Courts below have held that the defendant Nos. 1 and 2.

* had no notice of the agreement to sell.

* are bona fide purchasers for value.

* had taken reasonable care and

* had acted in good faith.

37. Shri Nath counsel for the plaintiff has brought to my notice explanation II of Section 3 of the Transfer of Property Act19 and has submitted that:

* in view of the Explanation II and

* the fact that the plaintiff was in possession of the property,

the defendant Nos. 2 and 3 will be deemed to have notice of the contract to sell.

38. The contract to sell does not contain any assertion that possession has been given to the plaintiff. It is true that the trial Court has held that the plaintiff was in possession of the property20 but has not held on what date he acquired possession or if he was in possession on the date when sale deeds were executed. The appellate Court has also dealt with the question of the possession and has held21 that:

* the plaintiff was not in possession when the sale deeds were executed;

* the contract to sell was kept well guarded secret and

* the defendants Nos. 2 and 3 were mislead by the revenue entries in favour of the defendant No. 1.

39. These findings are findings of fact and are binding in the second appeal.

40. Sri Nath, counsel for the plaintiff submitted that:

* The finding of possession by the trial Court was in favour of the plaintiff. The appellate Court could not reverse it in the plaintiffs appeal; and

* The finding of possession is otherwise illegal.

41. The trial Court has not recorded any finding if the plaintiff was in possession on the date of the sale deeds. The appellate Court recorded it for the first time. In any case the decree of the trial Court was in favour of the defendant Nos. 2 and 3, they could challenge the finding of the trial Court without filing any appeal or cross-objection. There is nothing to show that the finding recorded by the appellate Court that the plaintiff was not in possession of the land on the date of the sale deed is illegal. The Explanation II of Section 3 of the TPA does not assist the plaintiff in holding that the defendant Nos. 2 and 3 should be deemed to have notice about the agreement to sell.

42. The Second Sale Deed is Protected by Section 41 of the TPA and Section 19(b) of the SRA.

43. Sri Verma counsel for the defendant Nos. 2 and 3 has cited:—

* Chandni v. Anant Bali, AIR 1943 Oudh 398 and Nainsukhdas v. Gowardhandas, AIR 1948 Nagpur 110 for the proposition that reasonable care is a question of fact depending on the circumstances of the case,

* Mathura Prasad v. Mst. Anandi Kunwar, AIR 1924 All 63 for the proposition that in case the name of the transferor is recorded in the revenue records (as in the present case) then no further inquiry was required to be made.

44. He has submitted that:

* The findings regarding bona fide purchaser for value, and reasonable care after due inquiry are findings of fact.

* The above findings are binding in the second appeal.

* The suit is not only barred by Section 4122 of TPA but relief of specific performance can be granted in view of Section 19(b) of the SRA.23.

45. The findings of the Courts below are:

* the defendant Nos. 2 and 3 had no knowledge of the agreement to sell.

* They are purchasers for value.

* They purchased the property in good faith.

* They took reasonable care.

46. These are the findings of fact. There is no illegality in recording them. They can not be interfered with in the second appeal. The second sale deed in favour of defendant No. 3 cannot bee set aside; it is protected. The specific performance of the contract in respect of land of the second sale deed can be granted. However, I would like to rest my decisions on Section 19(b) of the SRA rather than Section 41 of the TPA. The conditions for the applicability of both sections are more or less same. Necessary findings have already been recorded by the Courts below and have been affirmed by me. But there is still a question whether the benefit of Section 19(b) of the SRA or Section 41 of the TPA can be availed of by the defendant 2 or not.

47. The Question of Protection of the First Sale Deed-Left open.

48. Section 19(b) of the SRA and Section 41 of the TPA apply to legal transfers (as in favour of the defendant No. 3) if they satisfy the conditions mentioned therein. But do these sections apply to an illegal transfer so as to cover the case of the defendant No. 2 (the sale deed in whose favour is void)? I leave this question to be decided in an appropriate case. The reason being that even if this point is decided against defendant No. 2, the plaintiffs suit for specific performance of the contract in respect of land subject-matter of the first sale deed cannot be decreed.

VTH POINT: THE RELIEF FOR SPECIFIC PERFORMANCE CAN NOT BE GRANTED.

49. The relief for specific performance of a contract is discretionary. It cannot be exercised in favour of the plaintiff for the following reasons:

* Firstly, the sale deed dated 2-9-1966 in favour of defendant No. 2 was illegal. The consequence of the illegal transfer is that the transferor (defendant No. 1) has lost all rights in half share of plot No. 249 on 2-9-1966. The plaintiff at the most can get rights of the defendant No. 1. The defendant No. 1 had no right over the half share sold on 2-9-1966. He can not convey anything to the plaintiff.

* Secondly, the plaintiff had no case for specific performance of the contract on the finding that the defendant Nos. 2 and 3 are bona fide purchasers in good faith for value, and without notice of agreement to sell. But the plaintiff is raising a claim that as the first sale deed 2-9-1966 is contrary to Section 168-A of the Act, the defendant No. 1 (transferor) is still owner of the land. Section 168-A of the Act is for preventing fragmentation of a holding. Here at present there is no fragmentation as the entire property is with mother and the daughter who are living together.

CONCLUSION

50. The rights of a tenure holder who transfers his holding contrary to the Act are extinguished on the date of the transfer. His rights do not survive till ejectment of a transferee or any other person in possession. The first sale deed in favour of defendant No. 2 is void as it is hit by Section 168-A of the Act. However the second sale deed dated 21-12-1966 in favour of the defendant No. 3 is valid, The defendant Nos. 2 and 3 had no knowledge of the contract to sell dated 5-4-1966. They are bona fide purchasers in good faith of the property for value, after due enquiry. The discretionary relief of specific performance of the contract cannot be granted in favour of the plaintiff. The appeal Is devoid of merits. It is dismissed with costs. It is clarified that the decree of the trial Court regarding return of the earnest money with interest against the defendant No. 1 still stands and may be executed by the plaintiff in accordance with law.

51. Order accordingly.

Fateh Bahadur Singh v. Jang Bahadur Gupta And Others

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's (Appellant's) Arguments (Sri Rameshwar Nath / Sri Nath)

Defendants' (Respondents') Arguments (Sri G.N. Verma)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Fateh Bahadur Singh v. Jang Bahadur Gupta And Others

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