S.N. Katju, J. - (1.) This is a Defendants' appeal arising out of a suit for cancellation of a deed of sale dated 24 -7 -1954, to the extent of a half share in the plots conveyed thereunder, executed by the second Respondent, Sarman, in favour of the Defendant Appellants and also for joint possession over the said half share in the aforesaid plots. The Defendant -Respondent, Sarman, is the elder brother of the Plaintiff Lakhan. Both Lakhan and Sarman jointly owned the aforesaid plots which had been conveyed by the deed of sale of 1954. It was alleged by Lakhan that Sarman was not his guardian and the deed of sale was not executed with the consent of his mother who was his natural guardian. It was further alleged that Sarman had no right to deposit ten times of the land revenue on Lakhan's behalf and consequently he could not be said to be the Bhumidhar of the plots in question and they could not be transferred. It was also alleged that the sale consideration was fictitious and there was no legal necessity for the execution of the sale deed by Sarman. The claim of Lakhan was resisted by the Appellants on the ground inter alia that Sarman was the guardian of the Plaintiff Lakhan and he was the Karta and Manager of the joint Hindu family of which the two brothers were members and consequently he could execute the deed of sale for legal necessity and for the benefit of the minor. It was also contended that the suit was barred by limitation and the civil court had no jurisdiction to entertain it.
(2.) The trial court cancelled the impugned deed of sale to the extent of a half share in the plots conveyed thereunder and the Plaintiff -Respondents suit for possession over the half share in the aforesaid plots was decreed. The court below has found that (1) Sarman was not the guardian of Lakhan at the time of execution of the sale deed in question; (2) the sale deed was executed neither for legal necessity nor for the benefit of the minor and (3) the entire ten times of land revenue had been deposited by Sarman but the deposit made by one tenure holder could not be considered as a deposit by the other co -tenure holders. Therefore, Lakhan still continued to remain merely as a Sirdar and was not a Bhumidhar of the plots in question and the suit was governed by 12 years rule of limitation Under Article 144 of the Limitation Act and it was not barred by time; and (4) the suit was maintainable by the civil court. The lower appellate court dismissing the appeal preferred by the Appellants has affirmed the decree of the trial court.
(3.) Shri S.N. Agarwal, learned Counsel for the Appellants and Shri Laxmi Behari who has appeared on behalf of the Respondents have argued the case with great zest and ability at considerable length. Shri Agarwal has contended that: (1) the suit was barred by limitation; (2) the civil court could not take cognizance of the suit as it was triable by the revenue court; (3) Sarman as the Karta of the family was fully competent to make the alienation not only on his own behalf but also on behalf of his younger brother, Lakhan; (4) the transaction was for legal necessity and for consideration. Even assuming that Sarman was competent to make the deposit on behalf of Lakhan and the latter had also become a Bhumidhar of the plots in question, the question arises whether Sarman was competent to make the transfer on behalf of Lakhan. It has been held by a Division Bench of this Court in Mahendra Singh v/s. Attar Singh, 1967 AWR 73 that Bhumidhari rights are special rights which have been created by Act 1 of 1951 and these new rights are governed solely by the provisions of the Act. It was observed: The notions of Hindu Law or Mohammedan Law which would be applicable to other property not governed by any special law cannot be imported into the rights created by this Act. In the aforesaid case A was adopted by J who formed a joint Hindu family. The family owned certain house property as also agricultural land. J made a transfer of the house property and the agricultural land in favour of M. It was found that there was no legal necessity for the sale and therefore, the joint family property at the time of sale could not be validly transferred. The house property and a Gher were treated as joint family property and their sale was held to be void. But the Bhumidhari land was treated on a different footing. It was observed that a Bhumidhar had a right of absolute transfer of his interest to another person without any consideration of legal necessity. It was observed: On the same principles, since Sec. 152 of the UP ZA and LR Act clearly gives a right to a Bhumidhar to transfer his interest, there is no reason to hold that in this case Jeet Singh could not transfer his interest in the Bhumidhari property in favour of Mahendra Singh by means of a sale deed, unrestricted by any consideration of legal necessity etc. It was held that the sale deed executed by J in favour of M was valid only to the extent of a half share in the Bhumidhari property held by J. It follows that J was not competent to make the alienation on behalf of his son even though both of them formed a joint Hindu family.;