Murlidhar, J. - (1.) This is a plaintiffs second appeal arising out of a suit for cancellation of a sale deed dated 9-2-1967 executed by Smt. Bhuri in favour of the defendants and for possession. The plaintiffs failed in both the courts below.
(2.) The relevant facts are that Ali Mohammad who died in 1953 left behind him five sons of whom three are the plaintiffs and a widow Smt. Bhuri. The two remaining sons Rashid and Shaukat were apparently Smt. Bhuris own sons while the three plaintiffs were her step sons. Following the death of Ali Mohammad the names of all the heirs were ordered to be entered on the holding vide copies of orders dated 1-12-1953 and 7-3-1954 on record. It may be noted that in those days the authority to decide ex parte mutation cases had been vested in the Panchayats. Thus the name of the widow, Smt. Bhuri, even though she was not an heir under the tenancy law came to be recorded along with the five sons over the holding of deceased Ali Mohammad. About seven years later in 1960 during consolidation proceedings in the village apparently there was again a controversy over the title of Smt. Bhuri. This was resolved by a compromise. The parties, namely, Smt. Bhuri and all the sons agreed that certain plots with a total area of four Bighas and three Biswas be mutated in the name of Smt. Bhuri while the rest of the holding be allotted to the five brothers in equal shares. Further that Smt. Bhuri would have no right to sell or gift the land entered in her name in any way and after her death the other branches of five brothers would be entitled to get this property also as heirs (Haqdar wa waris honge). Notwithstanding this compromise Smt. Bhuri by the sale deed of 1967 transferred the property to her grand children who are the defendants in this case and happen to be sons of Rashid and Shaukat, brothers of the plaintiffs, and apparently the own sons of Smt. Bhuri. The plaintiffs case was that in the face of the compromise the transfer by Smt. Bhuri was illegal.
(3.) The courts below have taken the view that under the compromise Smt. Bhuri was given absolute rights in the property mutated in her name and the restriction on transfer by sale or gift purported to be imposed by the compromise was hit by Section 10 of the Transfer of Property Act and was void as a restriction against alienation. Also that such restriction was void being against the provisions of U. P. Act 1 of 1951. The lower appellate court has also held that the defendants were bona fide purchasers for consideration without notice of the restriction. This view is attacked in second appeal.;