Bhimaji Narayanrao Lokur, J. - (1.) Claiming to be the purchaser of one -half of the Bhumidhari rights of the share of Smt. Parbati in the plots in dispute, under a sale deed dated 28th March, 1961 the petitioner brought a suit for declaration and partition in respect of those plots against opposite parties Nos. 4 and 5 - -the cosharers of Smt. Parbati. The suit was contested on a number of grounds, including a ground that the sale deed was void as having been executed contrary to the provisions of S. 168 -A of the UP ZA and LR Act (hereinafter referred to as 'the Act'). The suit was decreed by the trial court but in appeal the Addl. Collector dismissed it on the view that the sale deed contravened S. 168 -A of the Act and was void. His decision was affirmed in second appeal by the Board of Revenue. The petitioner seeks to impugn by this writ petition the decisions of the Addl. Collector and the Board of Revenue. The relevant question which arises and was canvassed is regarding the validity or otherwise of the sale deed in the light of the provisions of S. 168 -A of the Act which on 28th March, 1961, the date of the sale deed, read as follows: 168 -A. Transfer of fragments - -(1) Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure -holder, the whole of the plot to which the fragment pertains is thereby transferred. (2) The transfer of any land contrary to the provisions of sub -S. (1) shall be void. (3) When a bhumidhar has made any transfer in contravention of the provisions of sub -S. (1), the provisions of Ss. 167 and 168 shall, mutatis mutandis, apply. The Sec. prohibits transfer of a fragment situated in a consolidated area except the following two kinds of transfers: - - (1) transfer of a fragment in favour of a tenure -holder who has a plot contiguous to the fragment; (2) transfer of a fragment in favour of any person provided the transfer is of the whole of the plot to which the fragment pertains. The expression "fragment" is defined in S. 3(8 -A) of the Act to mean land of less extent than 6.25 acres in certain areas of the State and land of less extent than 3.125 acres in certain other areas. The land in dispute is located in the Basti district and a fragment for the purposes of this case would mean land of less extent than 3.125 acres.
(2.) 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 3.125 acres, for the simple reason that what is transferred is undivided interest in the land and not any specific land. The prohibition contained in S. 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, S. 168 -A as it stood had no application where a co -tenure -holder transferred his undivided interest in the land.
(3.) By the UP Land Laws (Second Amendment) Act, 1961, the original words in S. 168 -A "the whole of the plot to which the fragment pertains is thereby transferred" were 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 portions, in one of which the tenure -holder has bhumidhari rights and the other in which the tenure -holder has sirdari rights and permits transfer of that portion of the plot in which he has bhumidhari rights. The amendment makes no difference in the view I have taken in respect of the transfer of fragments under the unamended section. Since, in my opinion, the unamended S. 168 -A of the Act does not apply to transfer of undivided interest of a co -tenure -holder in a plot, the order of the Board of Revenue has to be and hereby quashed and the Board of Revenue is directed to dispose of the second appeal in accordance with law in the light of the above observations. No order as to costs.;