MALIK, J. - (1.) THIS case has been referred to a larger Bench by reason of a conflict of opinion between a decision of the Oudh Chief Court in Ram Dat v. Suraj Bux, 1948 Oudh W. N. 13 and of the Allahabad High Court in Bam Ban Bijai Prasad Singh v. Sarjoo Singh A. I. R. (34) 1947 ALL. 188. After having been given the facts, however, we are of opinion that the point does not arise and this appeal must fail on another ground.
(2.) A short pedigree will be helpful in understanding the facts of the case. It runs as follows: UMED SINGH ___ Sheoraj Singh(died)=Tejo Kuar Chandrapal Singh | (pre -deceased Sheoraj | Singh)=Indrana Kuar ________|_________________________ || Rampal singh(died unmarried) Shyam Kaur | Krishnapal Singh The property belonged to a joint family consisting of Umed Singh, Sheoraj Singh and Chandrapal Singh. Umed Singh died and then Chandrapal Singh died with the result that Sheoraj Singh was left as the sole surviving owner of the property; but the name of Indrana Kuar, widow of Chandrapal Singh, was mutated over half of the property by way of consolation On Sheoraj's death, the property came to his son Rampal Singh but, Rampal Singh having died while he was a minor, the property came to his mother, Smt. Tejo Kuar. In 1934, Smt. Tejo Kuar and Smt. Indrana Kuar surrendered the estate to Smt. Shyam Kuar, daughter of Sheoraj Singh Shyam Kuar applied under the Encumbered Estates Act and, on her death, her son Krishnapal Singh's name was brought on the record. Before this surrender, however, in the year 1933 Smt. Tejo Kuar and Smt. Indrana Kuar had executed a deed of sale of 15 bighas of land in favour of Smt. Babban in village Samdaha, district Unnao. Smt. Shyam Kuar, in her application under the Encumbered Estates Act, included the whole of the property and did not exclude the portion sold to Smt. Babban The usual publications in the gazette were made and Smt. Babban did not file any objection under Section 11, Encumbered Estates Act. The Special Judge, in due course, sent to the Collector a list of the properties in accordance with the provisions of Section 19, Encumbered Estates Act and on 12 -12 -1943, the Collector passed the final award. The Collector did not, however, attach, sell or mortgage the property but fixed instead instalments for the payment of the debts. In the year 1945, Krishnapal Singh and Smt. Tejo Kuar filed a suit, out of which this second appeal has arisen, for possession of the property sold to Smt Babban in the year 1933. It was claimed that the sale -deed was executed without consideration and there was no legal necessity for the transfer of the property and Smt. Babban was, therefore, not the owner of it. A further point was raised that as Smt. Babban had not filed any objection under Section 11 of the Act, her rights in the property had come to an end and she could no Longer claim to have any title in the property. The plaintiffs thus claimed possession over the property by dispossession of Babban.
(3.) THE lower appellate Court has held that the sale was for consideration and for legal necessity and it was thus a valid sale. It is, however, urged that, by reason of the fact that Smt Babban did not appear in the proceedings under the Encumbered Estates Act and did not file objections under Section 11 of the Act, her title in the property had ceased and the plaintiffs were entitled to claim it.;