MAHABIR Vs. SUBA LAL AND
LAWS(ALL)-1965-5-15
HIGH COURT OF ALLAHABAD
Decided on May 05,1965

MAHABIR Appellant
VERSUS
Suba Lal And Respondents


Referred Judgements :-

ACHARJI AHIR V. HARAI AHIR [REFERRED TO]


JUDGEMENT

S.N. Singh, J. - (1.)THE short point of law that arises in this appeal is as to whether on the passing of the UPZA and LR Act (which hereinafter will be referred to as the Act) when the members of a joint Hindu family become Bhumi -dhars, do they hold the Bhumidhari right as joint tenants or as tenants in common. It is the decision of this point which will decide the fate of the present appeal.
This Plaintiff's appeal arises out of a suit filed by the Plaintiff Durga Prasad for declaration that the sale deed dated 2.9.1953 executed by Maha -bir his adoptive father the second Defendant in favour of Suba Lal the first Defendant was void and not binding on the Plaintiff and in case on account of execution of the sale deed Plaintiff was not held to be in possession of the plots in suit he should be granted a decree for possession as well. A further prayer for recovery of damages and pendente lite future mesne profits was also made.

Mahabir the second Defendant had adopted Durga Prasad the Plaintiff. The dispute is about certain agri cultural plots which were grove and Muafi before the UPZA and LR Act came into force and became Bhumidhar after the passing of the said Act. The case of the Plaintiff in brief was that the grove and Muafi plots were the ancestral property of the Plaintiff and the second Defendant who were the joint grove -holders and Muafidars of the same. The Plaintiff alleged that there was a dispute between the Plaintiff's adoptive father, and his brother and brother's sons, taking advantage of which the Defendant induced the Plaintiff to execute a gift deed in his favour so that he might help the second Defendant against his brother Bhola and nephews. The Plaintiff alleged that Defendant Suba Lal instead of getting the gift deed executed in his favour fraudulently got a sale deed executed on 2nd September 1953. He challenged the validity of the sale deed which was executed for a consideration of Rs. 1500/ - and gave the detailed grounds for the cancellation of the sale deed in paragraph 6 of the plaint.

The suit of the Plaintiff was contested by the first Defendant Suba Lal on the ground that the Plaintiff was not the adopted son of Mahabir the second Defendant, that Mahabir Defendant was in need of money for payment of debts and so he sold the property in suit to him and after the sale deed the first Defendant was in possession. He denied the allegations given in paragraph 6 of the plaint about traud, undue influence and said that the sale deed was for consideration and valid necessity binding on the Plaintiff as well as the second Defendant. It was said that Plaintiff was not entitled to any damages and the amount of damages claimed was excessive.

During the pendency of the suit the second Defendant Mahabir applied on 15th May 1956 and got himself transposed as Plaintiff No. 2.

The learned Munsif who tried the case held:

that the Plaintiff No. 1 was the adopted son of Plaintiff No. 2; and that the sale deed was not executed for consideration or for legal necessity.

On these two findings he decreed the suit for a declaration that the sale deed was void against the Plaintiffs and he decreed the suit of the Plaintiff for recovery of Rs. 150/ - for past damages and he also decreed the suit for pendente lite and future damages at the rate of Rs. 75/ - per annum.

6. Suba Lal the first Defendant preferred an appeal to the lower appellate court. The lower appellate court confirmed the decision of the trial court about the adoption of Plaintiff No. 1 and held that Plaintiff No. 1 had interest in the property to the extent of half. It further found that out of the consideration of Rs. 1500/ - the first Defendant had proved the passing of the consideration to the extent of Rs. 325/ - only and that the rest of the consideration was fictitious It was of opinion that Suba Lal Defendant had inflated the amount of consideration by the addition of three pronotes which had got no existence in fact. It did not reverse the finding of the trial court about legal necessity but at the same time held that fraud or misrepresentation on Plaintiff No. 2 had not been proved A cording to the lower appellate court the question of any legal necessity or benefit to the estate did not arise. It appeared to be of the opinion that on the passing of the Act the members of the joint Hindu family consisting of Plaintiffs Nos. 1 and 2 held the property as tenants in common, the father did not represent the son as such he could not transfer the interest of the son which was to the extent of half and the son could not challenge the alienation made by the father to the extent of the share which the father held in the family property. According to the learned Judge the principle of joint family and coparcenary property did not apply after the passing of the Act. Consequently he allowed the appeal in part, modified the decree of the trial court to this extent that the sale deed executed by Mahabir dated 2nd September 1953 in favour of Suba Lal was null and void against the half share of the Plaintiff Durga Prasad in the property in suit and that it was valid in respect of the other half share of Mahabir Plaintiff No. 2. He reduced the past damages to Rs. 75/ - and pendente lite and future damages to be calculated at Rs. 37.50 P. per annum.

The Plaintiff has come to this Court in appeal against the above decision of the lower appellate court and the Defendant Suba Lal has filed a cross -objection, the result is that the entire controversy between the parties which was before the two courts below is before this Court also.

The learned Counsel for the Appellant has stated before me that without prejudice to his claim his client is prepared to pay Rs. 325/ - to the Defendant Respondent the amount of consideration which was found by the lower appellate court to have passed in this case.

9. Now I proceed to consider the question whether on the passing of the Act the members of a joint Hindu family hold Bhumidhari right as joint tenure holders or astanants in common and what is the effect of this finding on the decision of the case. It is not disputed before me that Mahabir and Durga Prasad who were members of joint Hindu family became Bhumidhars of the plots in suit on the passing of the Act

The learned Counsel for the Respondent contended that the father and son held the Bhumidhari right as tenants in common and not as joint tenants. His submission is that after the passing of the Act the personal law is not applicable and the succession is governed by Sections 171 to 174 of the Act and the rule of survivorship does not apply which clearly shows that the members of joint Hindu family held the Bhumidhari land as tenants in common; according to him a joint tenancy cannot be conceived of without the rule of survivorship.

In support of his above submissions he relied on the cases of Bhura v. Shahab ud din (1) (30 Alld. 128), Ali Bakhsh v. Barkatullah (2) (34 Alld. 419; and Kallu v. Sital (3) (40 Alld. 314). The learned Counsel referred me to Section 152 of the Act and submitted that the interest of a Bhumidhar is transferable which is possible only in tenancy in common and not joint tenancy and he further placed reliance on paragraphs 22 and 26 of the case of Ramji Dixit v. Bhrigunath (4) (1964 AWR 75) and submitted that principles of Hindu Law cannot be applied while interpreting the provisions of the Act (UPZA and LR Act). He further placed reliance on the cases of Prannath Chowdry v. Ranee Surnomoye Dossee (5) (9 MIA 539 at 611) and Srimati Lakhpati v. Parmeshwar Misra (6) (125 IC 414).

The learned Counsel argued that with the passing of the Zamindari Abolition and Land Reforms Act and the Hindu Succession Act the concept of coparcenary and coparcenary property has been done away with. A female could not be coparcener but under the above mentioned Acts females have also been recognized as heirs and they inherit property along with males.

12. I have considered the sub missions of the learned Counsel for the Respondent but in my opinion members of a joint Hindu family hold Bhumidhari tenure as joint tenants and not as tenants in common.

13. Prior to the date of vesting there were three kinds of co -ownership or co -tenureholdership:

1. Coparcenary,

(2.)JOINT tenancy and
Tenancy in common. 1 -Co parcenary:

The conception of a coparcenary ten -ureholdership is that of a common male ancestor with his lineal descendants in the male line of descent within four degrees continuing from and inclusive of such common ancestors. No coparcenaries can commence without a common male ancestor though after his death it may consist of collaterals. This type of co -tenureholdership in India was peculiar to Hindus only. Coparcenary of common law arose where two or more persons took heriditaments by the same title by descent: vide Hal -sbury's Laws of England, volume 32 page 350.

It may be said that this type of co -tenureholdership does not exist now due to Sections 4 and 6 of the Act and in view of the decision of the Hon'ble Supreme Court in Rana Sheo Ambar Singh v. Allahabad Bank (7) (1961 A.W.R. 546 SC) wherein it was held that on the passing of the Act entire property vested in the State and what is conferred on the intermediary by Section 18 is a new right altogether which he never had.

Joint tenants are those who form one body of ownership. It connotes four ideas -unity of title, unity of possession, unity of interest and unity of commencement of title. One of the characteristics of joint tenancy is that the rule of devolution is governed by the law of survivorship but absence of this rule cannot be said to be fatal to the existence of joint tenancy.

According to Halsbury's Laws of England each joint tenancy has an identical interest in the whole land and every part of it. The title of each arises by the same Act. The interest of each is the same in extent, nature and duration; vide volume 32 page 332 paragraph 517 Halsbury's Laws of England.

3 -Tenancy in Common:

This does not require the four incidents stated above but there Is only vnity of possession. It may be unequal and their titles may be different and may have commenced on different occasions. According to Halsbury's Laws of England under such a tenancy the land was said to be held in undivided shares, and the tenancy differed from a joint tenancy in that it requires neither unity of title, interest nor time, but only unity of possession. Having noticed the different types of tenure -holder ship let us see under which does the case in hand fall.

I have already said that first type of co tenure -holder ship may not be deemed to exist after the passing of the Act but the other two types of tenure holder ships do exist It cannot be said that the Act has abrogated the principles of joint tenancy or that a joint family cannot be a tenure holder after passing of the Act.

Before the passing of the Act the father and son were members of a joint Hindu family. The joint Hindu family was the intermediary, grove -holder or the muafidar as the case may be. They had no defined shares being members of a joint undivided Hindu family, that is, it was the joint Hindu family that held the property as inter -mediary grove -holder and muafidar, as such under Section 18 of the Act the land in dispute will be deemed to have been settled with the joint Hindu family. It cannot be disputed that the members of the joint Hindu family held the property as joint tenants before the date of vesting and in my opinion they should be deemed to hold the property in the same capacity even after vesting of the Act has not abrogated the principles of Hindu Law altogether nor has it disrupted the joint status held by the members of the family. After the settlement deemed to have taken place with them we find that that four incidence of joint tenancy exist in the case of joint family tenureholdership. In short it is the status that was in existence before the date of vesting which is determinative of the fact whether joint tenureholdership came in existence or tenancy in common came in existence. Joint tenancy is unknown to Mohammedan Law. Thus when a settlement after the date of vesting takes place in favour of members of a Mohammedan family they hold it as tenant in common.

Now I proceed to notice the various submissions made by the learned Counsel for the Respondent Since the learned Counsel referred to some cases bearing on the previous tenancy Acts I propose to notice those provisions along with the argument advanced on behalf of the Respondent.

Before the passing of Act II of 1901 (NWP Tenancy Act) the succession to all tenancies was governed by the personal law. It is only after the passing of this Act that line of succession was provided by Section 22 of Act II of 1901. With the enactment of his provision the succession of non transferable tenancies was governed by it no matter whether the tenant was a Hindu, Muslim or Christian. Inspite of this provision the High Court always took the view that joint Hindu family tenancies were not done away with and it was held that in case of joint Hindu family tenancy Section 22 of Act II of 1901 had no application vide Mendya v. Jhurya (8) (28 ALJ 769).

If one member of a joint Hindu family which has acquired an occupancy tenancy dies, the 'tenant' does not die and therefore Section 22 of the Agra Tenancy Act does not operate and the widow of the deceased member is not entitled to succeed.

The principle underlying this authority is that so long the joint Hindu family tenancy continued there was no question of succession. The question of succession arises only when there is disruption in the family. The rulings cited by the Respondents counsel Bhura v. Shahab uddin (1) (supra) and Ali Bakhsh v. Barkat ullah (2) (supra) only hold that after the passing of Act II of 1901 devolution to tenancy would be in accordance with Section 22 of Act II of 1901. These authorities have not considered anything about joint Hindu family tenancy. A reference was then made to the case of Kallu v. Sital (3) wherein it was held:

A special statute like the Agra Tenancy Act can and does modify the operation of the ordinary Hindu Law in certain matters.

Hence, where a zamindar granted the lease of certain land to M who formed with certain other persons a joint Hindu family and it was found that M threw the profits derived from the land into the common stock of the joint family, held that the tenancy did not become part of the assets of the joint family, inasmuch as its doing so would amount to the court sanctioning the transfer of a tenancy otherwise than under Section 20 of the Tenancy Act.

In this case it has been held that if a Zamindar grants "lease in favour of one member of the joint Hindu family others cannot be held to be tenants merely because the profit of that tenancy was blended with other property. This authority has not considered about the possibility of a joint Hindu family being a tenant. The case referred to above have interpreted the provision relating to succession as given in Act II of 1901 ana that if it is proved that contract of tenancy has been made in favour of one member of a family others will not be deemed to be the tenants thereof merely because they were members of the joint Hindu family. The case of Mendya v. Jhvrya (supra) is a clear authority for the proposition that a joint Hindu family could be an occupancy tenant under Act II of 1901.

18. After the above Act came Act III of 1926 (Agra Tenancy Act) which gave a statutory recognition to the view of the High Court as expressed in the case of Kallu v. Sital (supra). Under this Act also this Court held that a Joint Hindu family could be an occupancy tenant vise Acharji Ahir v. Harai Ahir (9) (1980 ALJ 974) wherein it was held as follows:

The new tenancy Act also recognizes the possibility of a joint family holding land, as an occupancy tenant, though it has modified the rule of succession for the future.'' The enactment of Section 26 of Act III of 1926 was considered not to have changed the law about a joint Hindu family being an occupancy tenant.

19. After Act III of 1926 came the UP Tenancy Act XVII of 1939 in which the law in this respect remained unchanged. Section 38 of Act XVII of 1939 was the same as Section 26 of Act III of 1926. This Court again affirmed its view which had been taken in the cases of Acharji Ahir v. Harai Ahir in Rajendra Misra v. Tirath Raj Misra (10) (1952 ALJ 301).

20. Thus it is clear that till the repeal of Act XVII of 1939 (UP Tenancy Act) a joint Hindu family as such could be held to be a tenant. It was a different matter that certain tenancies were governed by Personal Law for the purposes of devolution where as certain others provided a different mode of succession. Mere change in mode of succession would not cause the extinguishment of the joint family tenancy or joint tenancy.

Having considered the provisions of tenancy Acts prior to the passing of the Zamindari Abolition and Land Reforms Act let us see if there is any change in this Act. The only change that this Act has brought about is in the matter of succession. Now the succession in respect of transferable as well as nontransferable tenures is the same. There is a line of succession provided for all kinds of tenures in Sections 171 to 174 of the Act. The only section dealing with survivorship is Section 175 of the Act which has limited the rule of survivorship among co -widows and cotenureholders leaving no heirs. There does not appear to be any provision according to which it may be said that a joint Hindu family cannot be a te -nureholder. If the framers of law had thought otherwise they would have enacted provisions showing the contrary intention. In absence of any such contrary provision it has to be held that joint Hindu family can be a tenure -holder and the view that I have taken that the members of a joint Hindu family hold as joint tenants is the only possible conclusion which can be arrived at.

The reference of the learned Counsel to Section 152 of the Act also does not help him. Similar provision was there in the UP Tenancy Act as Section 32 of that Act which only shows the transferability of the tenure and nothing more. This does not give a right to a joint tenureholder to transfer the joint tenure without the consent of other cotenureholders or to a Karta to make an alienation without legal necessity or benefit to the State.

The reliance of the learned Counsel on paragraphs 22 and 26 of the case of Ramji Dixit v. Bhrigunath is also of no help. These paragraphs were dealing the right of a female tenureholder and considering the fact as to whether they had absolute right or a limited one. This authority is of no help on the point involved in the present case.

I have looked into the other two cases cited by the learned Counsel for the Respondent, namely Prannath Chowdry v. Ranee Surnomoye Dossee (5) and Srimati Lakhpati v. Parmeshwar Misra (6). There is nothing in these cases which may support the contention of the learned Counsel. On the contrary, my view about joint tenancy finds support in the case of Srimati Lakhpati Parmeshwar Misra (supra).

The last submission of the learned Counsel about coparcenary property and its weakening effect by the passing of the Hindu Succession Act has also no relevancy to the question in hand. I have already mentioned that this type of tenure may not exist but joint Hindu family tenure does exist. The members of a joint Hindu family after the passing of the Women's Right to Property Act are not only males but also females who have the same right as their husbands.

The result of the above dicussion is that on the passing of the Za -mindari Abolition and Land Reforms Act, Mahabir and Durga became joint Bhumidhars of the plots in suit and in accordance with well established principles of Hindu law Mahabir could not alienate the joint Hindu family, property; even his own interest in the family property without legal necessity or benefit to the estate. The decision of the trial court was correct, the lower appellate court erred in coming to a different conclusion.

In order to avoid multiplicity of proceedings and in view of the statement made by the learned Counsel for the Appellant it is held that the Respondent is entitled to Rs. 325/ - amount of consideration held by the lower appellate court to have been advanced by Subalaf. This amount will be deducted from the amount of damages found due to the Plaintiff from the Defendant Respondent.

In view of what has been found above this appeal succeeds. I set aside the judgment and decree of the lower appellate court and restore that of the trial court with this modification that Rs. 325/ - amount found to have been advanced by the Defendant Suba Lal to Plaintiff Mahabir will be payable to him and the same may be adjusted from the amount of damages recoverable from him.

29. The Plaintiff will be entitled to half of their costs throughout.

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