Decided on April 14,1965

SURAJ DIN Appellant
Ram Chandra and another Respondents

Referred Judgements :-



- (1.)This appeal by the Defendant arises out of a suit for cancellation of a sale deed dated 29.7.1954 executed by Chandra Sen Defendant No. 1 in favour of Suraj Din Defendant No, 2. The following pedigree will be helpful in appreciating the controversy arising in the case between the parties:
Jaipal and his five sons constituted a joint Hindu family. They were possessed of certain tenancy holding described in Schedules A and B of the plaint. After the death of Jaipal his five sons inherited the joint tenancy. Chandra Sen adopted Ram Chandra Plaintiff as his son during the life time of his brothers. Jai Ram, Jagdeo, Chandrabhan and Basdeo died issueless and, according to the Plaintiff, after their death the ancestral tenancy holding devolved on him and his adoptive father Chandra Sen. It is alleged that Chandra Sen had grown old and weak in mind. Suraj Din Appellant got the sale deed dated 29.7.1954 executed by Chandra Sen in respect of the joint tenancy holding in his favour for an ostensible consideration of Rs. 2500/-. The Plaintiff's case was that Chandra Sen was well off and was not in need of any money. It was alleged that the sale deed was without legal necessity, and hence the suit for its cancellation. Chandra Sen denied the adoption of the Plaintiff as his son. He said that he had borrowed money to acquire bhumidhari rights in respect of the tenancy holdings and as he had no means to pay the debt he sold the property to discharge that debt. The Appellant vendee pleaded that the sale deed was for legal necessity and that there was partition of the property between Chandra Sen and his brothers and that Chandra Sen succeeded to the property of his brothers upon their death under the UP Tenancy Act, 1939, and not by right of survivorship. It was denied that the Plaintiff-Respondent was the adopted son of Chandra Sen.

(2.)Both the courts below held (1) that the property in suit was ancestral joint family property of Chandra Sen and his brothers; (2) that the Plaintiff was the adopted son of Chandra Sea and had acquired a right in the joint tenancy holding upon his adoption; (3) that there was no legal necessity for the alienation made by Chandra Sen; and (4) that there was no partition of the joint tenancy holding between Chandra Sen and his brothers. On these findings the suit was decreed and it was held that the sale deed was not binding on the Plaintiff and it was liable to be cancelled.
(3.)The findings recorded by the courts below are pure findings of fact. The learned Counsel did not seriously contest these findings, and indeed it was not open to him to do so. He, however, contended that the mere fact that Chandra Sen and his brothers were in possession of the tenancy holding as members of the joint Hindu family did not confer any right or interest on the Plaintiff Respondent in the said land during the lifetime of Chandra Sen, his adoptive father. The submission was that succession to tenantry lands was governed by the special law contained in the UP Tenancy Act or the ZA Act as the case may be, and not according to the rules of Hindu law. The tenancy in question was an occupancy tenancy and Under Section 35 the Respondent would succeed to the holding only after the death of Chandra Sen. Section 38 specifically provides that no person shall be deemed to have an interest in a tenancy which has been acquired by another by inheritance merely because both of them are members of a joint Hindu family. In other words, if a joint Hindu family is possessed of a tenancy the sons do not acquire any interest in it by birth. They have been expressly excluded from inheritance by the proviso to S. 35 (a).

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