# M/s Laxmi Bricks Ujrai, Agra & Ors. Defendants/ v. Sri Dariyab Singh Plaintiff/

- **Citation:** (2019) 3 ILRA 765
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-19
- **Case number:** Second Appeal No. 943 of 2017
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-laxmi-bricks-ujrai-agra-ors-defendants-v-sri-dariyab-singh-plaintiff-44790
- **Pages:** 5

## Headnote

A. Land Law-U.P. Zamindari Abolition
and Land Reforms Act, 1950 - an
agricultural land upon the enactment of
the U.P. Zamindari Abolition and Land
Reforms Act, 1951 vested in the State of
Uttar Pradesh and thereafter individually
all tenure holders became bhumidhars in
their own rights.
B. Land Law-U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Concept of
personal law had not been adopted by the
Zamindari Abolition Act - Concept of Hindu
Undivided Family (HUF) do not govern the
inheritance
or
ownership
under
the
Zamindari Abolition Act.
C.
Civil
Law-Hindu
Minority
and
Guardianship Act, 1956 - Section 12 -
Sale of the property of a minor - a
guardian ought to be appointed - Since
no guardian had been appointed, the
sale of the portion of the property
belonging to the plaintiff was bad in law.

Second Appeal dismissed (E-5)

List of Cases Cited: -

1 Smt. Ramwati & ors. Vs Dharmdas 2013 RD
(120) 842.

2 Ram Awalamb & ors. Vs Jata Shankar & ors.
1968 RD 470

## Text

3 All. M/s Laxmi Bricks Ujrai, Agra & Ors. Vs. Sri Dariyab Singh
765
tenure-holder in his own right. Therefore,
an individual bhumidhar could have
transferred only his share of the property.
The question of there being any joint
Hindu family did not arise.

13. The question of law which had
been framed at the time of hearing of this
case which was "whether the trial Court
was right in coming to a conclusion that
the suit as was filed before the Civil Court
was barred" is also answered by holding
that the Civil Court definitely had the
jurisdiction to entertain the suit and,
therefore,
the
Trial
Court
rightly
entertained the suit and thereafter decreed
the same.

14. Under such circumstances, the
judgment and decree dated 12.8.2016
passed by the First Appellate Court is setaside and the suit is decreed in toto.

15. The Second Appeal stands
allowed.
----------

(2019)11ILR A765

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Second Appeal No. 943 of 2017

M/s Laxmi Bricks Ujrai, Agra & Ors.
 ...Defendants/Appellants
Versus
Sri Dariyab Singh ...Plaintiff/Respondent

Counsel for the Appellants:
Sri Ajay Kumar Mishra, Sri Sanjay Agarwal

Counsel for the Respondent:
Sri Tripathi B.G. Bhai, Sri Anil Kumar
Pandey, Anita Tripathi
A. Land Law-U.P. Zamindari Abolition
and Land Reforms Act, 1950 - an
agricultural land upon the enactment of
the U.P. Zamindari Abolition and Land
Reforms Act, 1951 vested in the State of
Uttar Pradesh and thereafter individually
all tenure holders became bhumidhars in
their own rights.
B. Land Law-U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Concept of
personal law had not been adopted by the
Zamindari Abolition Act - Concept of Hindu
Undivided Family (HUF) do not govern the
inheritance
or
ownership
under
the
Zamindari Abolition Act.
C.
Civil
Law-Hindu
Minority
and
Guardianship Act, 1956 - Section 12 -
Sale of the property of a minor - a
guardian ought to be appointed - Since
no guardian had been appointed, the
sale of the portion of the property
belonging to the plaintiff was bad in law.

Second Appeal dismissed (E-5)

List of Cases Cited: -

1 Smt. Ramwati & ors. Vs Dharmdas 2013 RD
(120) 842.

2 Ram Awalamb & ors. Vs Jata Shankar & ors.
1968 RD 470

(Delivered by Hon'ble Siddhartha Varma, J.)

1. A suit being Original Suit
No.1064 of 1993 was filed by the
plaintiff-appellant
for
the
relief
of
cancellation
of
a
sale
deed
dated
27.6.1984. Alongwith the prayer for
cancellation of the sale deed, a permanent
injunction for restraining the defendants
from interfering with the plaintiff's
possession over the suit property and also
766 INDIAN LAW REPORTS ALLAHABAD SERIES
for putting the plaintiff into possession if
he was found to be out of it was also
prayed for.

2. The case of the plaintiff was that
while the plaintiff was the son of one Shiv
Charan, he was adopted by his uncle
namely Natthi Lal and while he was still a
minor, his date of birth being 17.3.1973
as per his High School certificate and
15.9.1974 as per the school leaving
certificate, the properties which belonged
to him in plot no.686 were illegally sold
off by Shiv Charan after giving out that
he was the plaintiff's guardian. Further
case taken up in the plaint was that after
Natthi Lal had died, the plaintiff was
looked after by the daughters of Natthi
Lal and Shiv Charan had absolutely no
concern with either him or his property.
The suit was filed on 14.9.1994 within
three years of the plaintiff reaching 18
years of age as per the date of birth given
in the High School certificate.

3. The plaintiff had stated that the
property contained in plot no.686 was
around 27 bighas and 17 biswas and half
of this property belonged to the plaintiff.
Even though only 5 and half bigha was
sold by the sale deed which was under
challenge, it was averred in the sale deed
that Shiv Charan who was selling his
property was also selling a portion of the
property of the plaintiff. The property was
sold by Shiv Charan vide sale deed dated
27.6.1984 to the defendant no.1 namely
Laxmi Bricks through its Proprietor the
defendant no.2-Brij Mohan. Since, the
defendant nos.1 and 2 had sold the
property further to defendant nos.3 and 4
on 3.5.2001, they were also arrayed as
defendants in the suit. The defendant
nos.1 and 2 contested the suit and stated
that the plaintiff though was the adopted
son of Natthi Lal, after the death of Natthi
Lal, was under the guardianship of his defacto father Shiv Charan and since the
properties were joint, the natural father
Shiv Charan had the authority to sell the
land and, therefore, no fault could be
found by the plaintiff in the sale deed.

4. While the suit was being
contested, there were eight issues framed
and the Trial Court, while deciding the
suit, gave a finding of fact that the suit
was bad for non-joinder, Shiv Charan
having not been made a defendant. It also
held that as the property was joint
between the plaintiff and his natural
father Shiv Charan and as no partition
was there, there was no requirement
under section 12 of the Hindu Minority
and Guardianship Act, 1956 (hereinafter
referred
to
as
the
'Act')
for
the
appointment of a guardian by the Court. It
also held that the properties were of the
Hindu Undivided Family (HUF). The
Trial Court also held that since the
property was not divided, it could also be
held that the land measuring 5 bighas and
10 biswas which was sold was only from
the property of Shiv Charan and nothing
was sold from the property of the
plaintiff. With these observations, the suit
was dismissed.

5. The First Appellate Court
formulated
a
definite
question
for
determination which was as to whether
the sale deed dated 27.6.1984 by Shiv
Charan, the natural father of the plaintiff
was rightly executed or not. The First
Appellate Court came to a definite
conclusion that the suit was filed within
the limitation provided by the Limitation
Act. It also held that since the sale deed
had mentioned that the plaintiff's share
was also being sold, then half of the
3 All. M/s Laxmi Bricks Ujrai, Agra & Ors. Vs. Sri Dariyab Singh
767
property sold i.e. half of 5 bighas and 10
biswas was that of the plaintiff. Further it
held that since the plaintiff-appellant had
been adopted by Natthi Lal, the property
which devolved upon him was the
property of Natthi Lal and it had nothing
to do with the share of the property of
Shiv Charan. There was in fact nothing
which was joint and thereafter the First
Appellate Court having setting aside the
finding as had been arrived at by the Trial
Court that there was no requirement of a
guardian under section 12 of the Act,
allowed the First Appeal and held that
since no guardian had been appointed, the
sale of the portion of the property
belonging to the plaintiff was bad in law.

6. The instant Second Appeal was
filed by the defendant-appellants before
this Court. The following substantial
questions of law were formulated :

"1. Whether the lower appellate
court has illegally allowed the civil appeal
without meeting out the reasoning and
setting aside the findings recorded by the
trial court and as such the judgement and
decree dated 11.8.2017 passed by lower
appellate court is vitiated in law ?

2. Whether no permission of
District Judge was required for transfer of
minor's undivided share in the joint
family property made by manager (Karta)
of the family when admittedly the land in
suit is HUF property under section 12 of
Hindu Minority and Guardianship Act
1956 which was not denied by the
plaintiff in his replication nor any
evidence was led and as such the suit was
liable to be dismissed on this ground
alone ?"

7. So far as the first question of law
is concerned, this Court feels that a bare
reading of the two judgments clearly
shows that the First Appellate Court had
allowed the First Appeal after reversing
all the findings recorded by the Trial
Court. The most important finding that
the property was a joint one and that no
guardian was required, was definitely set
aside by the First Appellate Court by
saying that the property was not joint and
if the sale-deed had to be held valid then a
definite requirement of a guardian was
there.

8. So far as the second substantial
question of law is concerned, learned
counsel for the appellants stated that the
plaintiff had not been able to prove that
there was any division between himself
and his natural father. He, therefore,
submits that no requirement of the
appointment of a guardian by the Court,
as per section 12 of the Act, was required.
In this regard, learned counsel for the
appellants relied upon a decision of this
Court reported in 2013 RD (120) 842 :
Smt. Ramwati & Ors. vs. Dharmdas.

9. Learned counsel for the plaintiffrespondent, however, stated that under the
U.P. Zamindari Abolition and Land
Reforms Act, 1950, an agricultural land
upon the enactment of the U.P. Zamindari
Abolition and Land Reforms Act, 1951
vested in the State of Uttar Pradesh and
thereafter individually all tenure-holders
became bhumidhars in their own rights.
Natthi Lal and Shiv Charan became
bhumidhars under the U.P. Zamindari
Abolition and Land Reforms Act in their
own rights. Even if there was no partition
by metes and bounds, the shares of the
two namely Natthi Lal and Shiv Charan
were separate. One could not have dealt
with the property of the other. When
Natthi Lal died, his share was inherited by
768 INDIAN LAW REPORTS ALLAHABAD SERIES
his son - the plaintiff. Shiv Charan who
was a separate identity (a separate
bhumidhar) could not have dealt with the
properties of either Natthi Lal or of his
son, the plaintiff. If Shiv Charan wanted
to sell a share of his property he was free
to do so, but under no circumstance could
he have sold the properties of Natthi Lal
or his successor, the plaintiff. Since the
concept of personal law had not been
adopted by the Zamindari Abolition Act,
the concept of Hindu Undivided Family
(HUF) also could not be said to be
governing the inheritance or ownership
under the Zamindari Abolition Act.
Learned counsel, therefore, submitted that
the decision reported in 2013 RD (120)
842 : Smt. Ramawati & Ors. vs.
Dharmdas since had not taken into
consideration the provisions of Zamindari
Abolition Act, could not be said to be a
decision which could be relied upon in
the instance case. He, therefore, submitted
that the First Appellate Court correctly
decided
the
case.
Learned
counsel
submitted that the Full Bench decision of
Ram Awalamb & Ors. vs. Jata Shankar
& Ors. reported in 1968 RD 470 was not
considered in 2013 RD (120) 842 in its
right perspective and, therefore, the
decision reported in 2013 RD (120) 842
could not be relied upon in this case.
Learned counsel referred to para 44 of the
Full Bench decision of Ram Awalamb
(supra) and, therefore, the same is being
reproduced here as under :

"44.
Our
conclusions
can,
therefore, be briefly summarised as
follows:--

(1) Where members of a joint
Hindu family hold bhumidhari rights in
any holding, they hold the same as tenants
in common and not as joint tenants. The
notions of Hindu law cannot be invoked
to determine that status.

(2) Where in certain class of
tenancies, such as permanent tenure
holders, the interest of a tenant was both
heritable and transferable in a limited
sense and such a tenancy could, prior to
the enforcement of the Act, be described
as joint family property or coparcenary
property, the position changed after Act I
of 1951 came into force. Thereafter the
interest
of
each
bhumidhar,
being
heritable only according to the order of
succession provided in the Act and
transferable without any restriction other
than mentioned in the Act itself, must be
deemed to be a separate unit.

(3) Each member of a joint
Hindu family must be considered to be
a separate unit for the exercise of the
right of transfer and also for the
purposes of devolution of bhumidhari
interest of the deceased member.

(4) The right of transfer of
each member of the joint Hindu family
of his interest in bhumidhari land is
controlled only by Section 152 of the
Act and by no other restriction. The
provisions of Hindu law relating to
restriction on transfer of coparcenary
land, e. g., existence of legal necessity,
do not apply."

(emphasis supplied)

10 Having heard learned counsel
fort the appellants and the learned counsel
for the plaintiff, this Court is of the view
that the First Appellate Court correctly
reversed the findings therein and held that
there was no joint ownership and,
therefore, correctly came to a conclusion
that if any sale of the property of a minor
had to take place, then a guardian ought
to have been appointed. In the instant
3 All. Ram Janam Vs. Ram Din
769
case, since there was no jointness of the
properties of the successor of Natthi Lal
i.e. the plaintiff and of Shiv Charan, the
latter could not have dealt with the
properties of the successor of Natthi Lal
at all as a Karta. The second substantial
question of law is also, accordingly,
answered.

11. Under such circumstances, the
substantial questions of law, as have been
framed, are answered.

12.

The
Second Appeal
is,
accordingly, dismissed.
----------

(2019)11ILR A769

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2019

BEFORE
THE HON'BLE HARSH KUMAR, J.

Second Appeal No. 971 of 1992

Ram Janam ...Defendant/Appellant
Versus
Ram Din ...Plaintiffs/Respondent

Counsel for the Appellant:
Sri P.K.S. Paliwal

Counsel for the Respondent:
Sri V.V. Misra, Sri Devendra Pratap Yadav,
Sri Rajesh Kumar

A. Evidence Law-Evidence Indian Evidence
Act, 1872 - Section 45 - Civil Suit for
cancellation of sale deed - Opinions of finger
print and handwriting expert - Conflicting
opinions - Court may itself compare the
thumb impression, ignoring the expert
opinion - Report of finger print and
handwriting expert is relevant but its
evidentiary value is that of an opinion of an
expert. It is not binding upon the Courts.
Held:- In civil cases when two conflicting
opinions are brought before the Court in the
shape of reports of two different finger print
and handwriting experts, produced each by
plaintiff and defendant, favouring each of
them respectively, it becomes the pious duty
of Court to examine and compare itself the
disputed
thumb
impressions/signatures/
writings etc. with admitted or specimen thumb
impressions
etc.
as
well
as
enlarged
photographs thereof, so as to determine the
correctness of expert opinion/report given by
any of the two handwriting and finger print
experts, and deciding the truth of the fact. In
civil cases courts may not be justified in
resiling
from
its
duty
of
such
examination/comparison by itself by leaving
the issue of proof of thumb impressions over
any document (which may be basis of case)
undecided. In a suit for cancellation of sale
deed where there is specific denial of
execution of impugned sale deed and specific
averment that impugned sale deed having
been obtained by impersonating some other
person in place of plaintiff, the Court may not
be justified in proceeding with disposal of
case, either by decreeing or dismissing the
case, without recording any specific finding
regarding thumb impressions impugned sale
deed bears signature/thumb impressions of
plaintiff, if it rules out possibility of execution
by imposter and in case it does not bear
signature/thumb
impressions
of
plaintiff,
(confirming execution by imposter in place of
plaintiff). (Para 18, 19)

Reports of two experts favouring plaintiff and
defendant respectively being contradictory to
each other in such circumstances the trial
court ought to have examined the disputed
thumb impressions over the impugned sale
deed/Register Form No.8 and the specimen
thumb impressions of plaintiff on record, at its
own - Lower appellate Court did not commit
any illegality or mistake in comparing the
disputed thumb impressions with specimen,
thumb impressions of plaintiff at its own. (Para
35)

B. Evidence Law-Indian Evidence Act,
1872 - Section 71 - Burden of Proof -
Cancellation of Sale deed - Plaintiff
denying execution of sale deed - Burden