Deoki Nandan, J. - (1.) ;-
(2.) THIS is a defendant's second appeal in a suit for cancellation of a sale deed executed on 17-3-1969 by one Smt. Kailasya in favour of her son-in-law Sheo Lal. The plaintiff Smt. Sudamiya is the widowed daughter-in-law of Smt. Kailasya. The relief of possession over the land, which Was the subject-matter of the conveyance, and is situate in two villages, namely, Jalalpur Neori and Kanera Mai, Pergana Koda, District Fatehpur, was originally held by Tulsi, the husband of Smt. Kailasya and father-in-law of Smt. Sudamiya. Smt. Kailasya having died during the pendency of the suit in the trial court, her name was struck off and Sheo Lal, the appellant, remained the sole defendant in the suit. After the death of Tulsi, the husband of Smt. Kailasya, and their son Devanand, the husband of Smt. Sudamiya, Smt. Kailasya filed two suits u/Sec. 229-B of theUP ZA & LR Act, 1951, for declaration of her title to the land against Smt. Sudamiya. These suits were compromised on the terms that both Smt. Kailasya and Smt. Sudamiya were to be recognized as the tenure-holders of the land in suit in both the villages in equal shares, but neither of them could, during their life time, alienate their respective shares; but, on the death of either of them the survivor was to possess the whole land as the sole tenure-holder with full rights of alienation. In course of time, there was consolidation of holdings in the village and while in the village Kanera- Mai the two widows were allotted a joint Chak, in village Jalalpur Neori separate Chaks were allotted to them. Thereafter, on 17-3-1969, Smt. Kailasya sold her entire right, title and interest in the land, after acquiring Bhumidhari rights, for Rs. 10,000/- to her son-in-law Sheo Lal, the defendant-appellant. The validity of the sale deed was impugned in the suit giving rise to the present second appeal on the following grounds:- That the sale deed was without consideration as no consideration had in fact been paid by Sheo Lal to Smt. Kailasya-the consideration shown to have been paid was fictitious and sham; 2. Smt. Kailasya was not competent to execute the sale deed inasmuch as she had no right to do so in view of the terms of the aforesaid compromise; 3. Sheo Lal was not in possession of any of the land and although mutation had secretly been got effected in favour of Sheo Lal in Village Kanera Mai, no mutation had been effected till then in Village Jalalpur Neori; and 4. The market price of the land was much more than Rs. 10,000/-. As Smt. Kailasya appears to have died shortly after the institution of the suit and her name was struck off, only Sheo Lal filed a written statement and contested the suit. His defence was that there had been consolidation of holdings in the two villages and Smt. Kailasya had been declared to be the tenure-holder of the land in suit in both the villages and the land in village Jalalpur Neori had even been divided and their holdings separated without any objection by Smt. Sudamiya; and that in view of the said proceedings in the course of the consolidation of holdings, the plaintiff Smt. Sudamiya could not deny Smt. Kailasya's right. It was then alleged that the land originally belonged to Tulsi. His son Devanand had not married and died unmarried. Smt. Sudaraia was not his wife and three daughters of Tulsi and Smt. Kailasya were alive. Sheo Lal alleged that he purchased the property in good faith, after taking the necessary precautions, and for valuable consideration of Rs. 10,000/- and was protected by Sec. 41 of the Transfer of Property Act. About the execution of the sale deed it was alleged that Smt. Kailasya executed it after the contents thereof were fully explained to and understood by her and the consideration of Rs. 6,000/- was paid before registration, and Rs. 4,000/-were paid before the Sub-Registrar at the time of the registration, and it was false to say that no consideration was paid. The defendant, it was alleged, had no knowledge of the terms of the alleged compromise and he came to know of them for the first time on reading the plaint. It was claimed that although Smt. Sudamia was not the widow of Devanand, yet Smt, Kailasya entered into the compromise in order to avoid litigation and harassment and the compromise was a family arrangement, but the term of compromise restraining alienation was alleged to be illegal and not binding on the defendant Sheo Lal. Smt. Kailasya had become the sole owner of the land in suit after the death of Devanand and only life interest was agreed to be given to Smt. Sudamiya, the plaintiff. The terms of the compromise were not read out to Smt. Kailasya. She was defrauded and the compromise was obtained by fraud. Smt. Kailasya had, it was claimed, full powers to alienate the land and she executed the sale deed after obtaining Bhumidhari rights on payment of ten times the land revenue. Lastly, it was claimed that Smt. Kailasya had three surviving daughters and the plaintiff Smt. Sudamiya was not her heir and was not competent to sue and the suit was bad for non-joinder of three daughters. The following were the issues on which the parties went to trial, namely:- 1.Whether the sale deed dated 17-3-1969 executed by deceased-defendant no. 2. Smt. Kailasya in favour of defendant no. 1 Sheo Lal is liable to be cancelled on the grounds given in the plaint 2.Whether Smt. Kailasya had entered into the compromise dated 24-1-1958 with Smt. Sudamiya out of her free will and consent after fully understanding the terms of the compromise ? If not its effect ? 3.Whether Smt. Sudamiya plaintiff is the widow of Devanand ? If so, its effect ? 4.Whether the suit is bad for non-joinder of necessary parties ? If so, its effect ? 5. Whether the defendant no. 1 is bona fide purchaser in good faith for value without notice of the land in suit ? If so, effect ? 6. Whether the compromise dated 24-1-58 is family arrangement as alleged in para 19 of the written statement ? If so its effect ? 7. Whether the condition in the compromise restraining Smt. Kailasya from selling or transferring the land in suit is void as alleged in para 20 of the W. S. ? Its effect ? 8. To what relief, if any, the plaintiff is entitled ? 9. Whether the suit is barred by Section 49 of G. H, Act as alleged in paras 11& 12 of W. S. ? The trial court has by some mistake referred to only 7 issues in its judgment and though the issues nos. 6, 7 & 8 appear to have been wrongly numbered as issues nos. 5, 6 and 7 and the issues nos, 5 and 9 were not quoted in the judgment at all, nevertheless, it appears to have given its findings on all the 9 issues in the following manner. It first took up issue no 3 and held that Smt. Sudamiya is the widow of Devanand It also held that according to law of succession prevalent in the year 1957 when Devanand died, according to the statement of Sheo Lal, D. W. 1, Smt. Sudamiya was the sole successor to Devanand and neither Smt. Kailasya nor her three daughters inherited anything in the property in suit. Issue no. 4 was answered in the negative in favour of the plaintiff. Under issue no. 5 the trial court held that the compromise was by way of a family settlement and the effect was that the act of giving the disputed land to Smt. Kailasya. in terms of the compromise was not a transfer of property in law and therefore, Section 10 of the Transfer of Property Act would not be applicable to it and did not govern its terms. Thereafter, under issue no. 6 the trial court held that the condition in the compromise, restraining Smt. Kailasya from selling or transferring the land in suit, was not void, but was valid, and accordingly on issue no. 1, it held that the sale was invalid. It further held that the defendant Sheo Lal having stated in his statement on oath that he had come to know of the Terms even before the execution of the sale deed, the transaction was not protected by Section 41 of the Transfer of Property Act and was liable to be cancelled. Lastly, under issue no.7, the trial court held that the suit could not be said to be barred by the provisions of Section 49 of the U. P. Consolidation of Holdings Act inspite of the partition of the holding and/or allotment of new numbers in view of the fact that Smr. Kailasya possessed the same rights and liabilities in the land, allotted to her in the consolidation proceedings, which she had in the land held by her before the consolidation operations, in view of Section 30 (b) of the U. P. Consolidation of Holdings Act. She was, therefore, subject to the conditions imposed by the compromise even in respect of the land allotted to her in the consolidation proceedings and the sale deed was, therefore, liable to be cancelled for being in violation of the conditions of the compromise. The trial court, under the same heading of issue no. 7, held that the plaintiff was not in possession of the land in the suit and that the defendant was in its possession and that, therefore, the plaintiff was also entitled to a decree for possession having become owner of the land in terms of the compromise after the death of Smt. Kailasya. In the result, the trial court decreed the suit for cancellation of the sale deed as well as for possession.
(3.) THE lower appellate court generally confirmed the said findings and decree of the trial court. Hence, this second appeal. The learned counsel for the appellant urged before me that the finding of the two courts below on the question about the effect of Section 49, read with Section 30 (b) of the U. P. Consolidation of Holdings Act, was erroneous in law. The argument was that the restriction imposed by the compromise, against alienation, did not run with the land. It was merely personal to the two widows. Theirs rights in the land as co-tenureholders thereof could not be added to or substracted from or in any manner modified by any agreement between the two widows by way of compromise or family settlement inasmuch as the rights were statutory and prescribed by the UP ZA & LR Act. Indeed, argued the learned counsel, the two widows were merely co-Sirdars and a Sirdar had no right to alienate the holding even if he were the sole tenure-holder. There could thus be no question of any effect on the rights of the two widows, who were recognized as the co-Sirdars of the land in the two villages under the compromise between them, by the term of the compromise which restrained each one of them from alienating her share during their life-time or by the term which conferred the right of alienation on the survivor. The term restraining alienation could, if valid, at best impose a personal obligation on the two widows not to alienate their share in the holding after obtaining Bhumidhari rights and since that was so, the obligation of one not to alienate the land and the corresponding right of the other to restrain the alienation, did not attach to the holding. Consequently, it was not any right, title or interest or liability in the original holding which might have been deemed to stand transferred from the original holding to the holdings allotted in the consolidation operations, within the meaning of clause (b) of Section 30 of the U. P. Consolidation of Holdings Act. In view of this position of law, learned counsel urged that once the old holdings were exchanged for new, even the personal obligation which the widows had undertaken ceased to be enforceable even if it was deemed to have been enforceable so long as the original holdings stood. In support, the analogy of the right to specific performance of a contract was given and the decision of the Supreme Court in Pearey Lal v. Hori Lal, AIR 1977 SC 1226, was cited and it was urged that the contractual obligation undertaken by each of the two widows, not to transfer their share of the holdings, could not be enforced against the new holdings, allotted to them in the consolidation of holdings operations.;