Holding

Transfers of fragments of a consolidated area by a bhumidhar to non‑tenure‑holders are void under Section 168‑A, and the bhumidhar’s interest is extinguished under Section 189(aa); the High Court’s order was set aside and the case remanded.

Summary

The plaintiff, Fateh Bahadur Singh, sued Jang Bahadur (the second respondent) and two non‑tenure‑holders, Kalawati and Mithlesh Kumari, for specific performance of a sale agreement for a plot of land. The lower courts held that the plaintiff was entitled to specific performance, treating the sales to the appellants as void. On appeal, the High Court affirmed the voidness of the two fragment sales under Section 168‑A of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and ordered specific performance against the appellants. The Supreme Court held that the High Court failed to consider the statutory exception for transfer of the whole or part of the plot in which the bhumidhar has rights and the effect of clause (aa) of Section 189, which extinguishes the bhumidhar’s interest upon a prohibited transfer. Accordingly, the Court set aside the High Court order and remanded the matter for disposal in accordance with the proper statutory provisions.

Issues considered

The applicability of Section 168‑A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 to transfers of fragments of land by a bhumidhar to non‑tenure‑holders.
Whether the exception in Section 168‑A for transfer of the whole or so much of the plot in which the bhumidhar has rights applies to the present transfers.
The effect of a void transfer under Section 168‑A on the vested interest of the bhumidhar, particularly under Section 189(aa).
The relevance of Section 43 of the Transfer of Property Act in the context of a void sale.

Legislation cited

Reserve Bank of India Act, 1934
Transfer of Property Act, 1882s. 43
U.P. Zamindari Abolition and Land Reforms Act, 1950s. 152, s. 153, s. 154, s. 155, s. 156, s. 157, s. 158, s. 159, s. 160, s. 161, s. 162, s. 163, s. 164, s. 165, s. 166, s. 167, s. 168, s. 168-A, s. 189, s. 190, s. 3(8a)

Subjects

Land reformZamindari abolitionFragmentSection 168-AVoid transferBhumidharSpecific performanceUttar PradeshProperty law

Judgment

MITHLESH KUMARI AND ANR.
A
v.
--~
FATEH BAHADUR SINGH AND ANR.

FEBRUARY 22, 1991

[K.N. SAIKIA AND M.M. PUNCHHI, JJ.] B

U. P. Zamindari Abolition and Land Reforms Act, 1950-Scope
.J...._ and object of

U.P. Zamindari Abolition and Land Reforms Act, 1950-Section
3 (8a )-Definition of 'fragment'-Addition-Purpose of.
c
-- U. P. Zamindari Abolition and Land Reforms Act, 1950-Sections
168-A, 167-0bject, scope and application of-Sale of fragments of a
.... -----...,/ fragment to non-tenure holders~Whether hit by the provisions .

The respondent No. 1 sued the second respondent (defendant D
No. 1) and the appellants (defendant Nos. 2 and 3) for specific perfor-
mance of a contract whereunder the second respondent had agreed to
sell his lands to the first respondent for Rs.5,000 out of which Rs.4,000
were paid, and the balance Rs.l,000 was to be paid within 5 years
whereafter the second respondent was to execute a sale deed in favour
\...... of the first respondent. E

The Munsif decreed the suit only for recovery of Rs,4,850 plus
pendente lite and future interest on Rs.4,000 and this order was con-
firmed by the Civil Judge by dismissing the appeal of respondent No. 1.

A second appeal was preferred to the High Court by respondent F
No. 1 contending that the transfers in favour of the appellants, by
respondent No. 2 were void being in contravention of Section 168-A of
the U.P. Zamindari Abolition and Land Reforms Act, 1950. The appel-
lants contested the appeal contending that for a transfer being hit by
Section 168-A of the Act should be in respect of a specific piece of land
and not a share in a holding and that the transfers were of a portion of G
the shares of respondent No. 1 in the disputed plot.

The High Court allowed the appeal holding that the two transfers
made were clearly hit by the provisions of Section 168-A(2) of the Act
and that the benefit of Section 43 of the Transfer of Property Act could
not be availed of by the appellants as the sale deeds were void in the eye H
of law.
699
700 SUPREME COURT REPORTS (1991] 1 S.C.R.

A
The appellants in their appeal to this Court contended that the --..,r- --
sale made by respondent No. 2 to the 2nd appellant being hit by the
provisions of Section 168-A of the Act, the subject matter of transfer got
vested in the Government and the interest of respondent No. 2 in that
part of the holding stood extinguished on the date of transfer and that
the sale being void, be was left only with the subject matter of transfer,
B and that the respondent No. 2 having transferred that whole portion to
the first appellant by sale deed such transfer being a transfer of the .
whole area it would be covered by the proviso under Section 168-A and ~ ..._
as such, the sale would not be hit by the provisions of Section 168-A.

The first respondent contended that as the sale deeds in favour of
the two appellants have been held to be void, the High Court rightly
c decreed the suit; that he having been in possession of the land and the
second respondent's fragmented sales having been found to be void,
even if the land would vest in the State, the first respondent would not
be divested automatically and the State has to seek possession in accor-
dance with the law.
D
On the question as. to what would be the effect of the two
fragmented sales in favour of the appellants, setting aside the order of
the High Court and remanding the matter, this Court,

HELD: 1. The U .P. Zamindari Abolition and Land Reforms Act
E was passed as it was considered expedient to provide for the abolition of
the Zamindari system which involved intermediaries between the tiller
of the soil and the State in Uttar Pradesh and for the acquisition of their
rights, title and interest and to reform the law relating to land tenure
consequent upon such abolition and acquisition and to make provision
for other matters connected therewith. [705E-F]
F
2. The original Act did not def'me fragment. The def'mition of ----A:-
'fragment' was added by Section 2 of the U.P. Act XVIII of 1956 with a
view to prevent fragmentation and promote consolidation of holdings in
order to avoid uneconomic units. [705F-G]

G 3. The object of the section 168-A(l) was to prevent fragmenta-
tion of land situated in a consolidated area and transfers that would resu)t
in fragmentation or further fragmentation shall be void and to such ,""*( ·~
transfers, Section 167 will mutatis mutandis be applicable, when a frag-
ment situated in a consolidated area is transferred. If transfer of a
fragment is made in favour of tenure-holder who bas a plot contiguous
H to the fragment, the purpose of law is not defeated inasmuch as it will be
MITHLESH KUMAR! v. F.B. SINGH 701

-- ~onsolidated with the contiguous plot of the transferee. When the land
held by a person in a consolidated area is already a fragment then as A
was provided previous to the amendment in 1961 the whole of the plot to
which the fragment pertained was to be transferred. [708F-709A]

4. ·After the amendment, the invalidity and applicability of Seca :
tion 167 is limited to a case where the transfer is not in favour of any B
,.._ ,...l_such tenure-bolder and to the whole or so much of the plot in which the
~- person has bhumidbari rights which pertains to fragment is thereby
transferred. If the transferor has bhumidbari rights on the whole of the
fragment the whole has to be transferred. If the person has bhumidhari
, ~ rights only in a part of the plot that part on which he has bhumidhari
- rights can be transferred. The part on which the person has not.
bbumidhari rights is not covered by the provisions not because that c
would not result in further fragmentation but because be bad transfer- '
?--- ~ able bbumidbari rights only on that portion and not on the other ·
' portion. [709A-C]

5. The substitution of the words "bbumidbar with transferable D
rights" for the word "bbumidbar" would not make any difference
when the bhumidhar had transferable rights but would make a dif-
ference where the bhumidbar had also lands with non-transferable
rights. [710C-D]

6. Under the amended provisions the interest of a bhumidbar E
with transferable rights in bis bo!ding or in part thereof shall be exting-
- uJshed when the holding or part thereof with bhumidhari rights has
been transferred or let out in contravention of the provisions of the Act.
In other words, when _he bad bhumidhari rights on the entire holding
and the same is transferred or let out in contravention of the provisions
-~ of the Act bis interest shall be extinguished. Ifhe bad bhumidhari rights F
only on a part thereof and it has been transferred or let out in contra-
vention of the provisions of the Act bis interest in bhumidbari rights in
that part shall be extinguished. The reason behind the provisions to
make fragmentation is the need to prevent further fragmentation if the
bhumidhar with his bbumidbari rights over a fragment tries to transfer

.... _
the fragment, his right over the fragment is extinguished. [710D-E]
~
!' 7. In the instant case, the bbumidhar respondent No. 2's land
G

measuring 10 bighas, 12 biswas and 10 biswansis was a fragment. He
en~ered int() 1:1n agreement to sell the land on 5.4.1966 and the firs*
respondent on payment of advance of Rs.4,000 is sta~e~ to have ~ad
possession of the land. That sale would attract the provisions of Sec~ion H
702 SUPREME COURT REPORTS [1991] 1 S.C.R.

A 168-A, if it resulted in transfer of the fragment. The sales to the appel·
lant No. 1 was dated 2.9.1966 and to appellant No. 2 was dated
21.12.1966. These two sales would be covered by the old provisions of
sections 166 and 167, which sections did not deal with the case of
bhumidhar but only by sirdar or asami. But section 168-A would be
attracted and the provisions of Section 167 would mutatis mutandis be
B applicable. [710G-711B]

8. The High Court did not examine the facts of the case in light
of the laws prevailing at the time. Festinatio justitiae est noverea infor- ,
mateeni. Hasty justice is step-mother of misfortune. Inj1fStum est nisi
-. '
C
tota Lege inspecta, de ima aliqua ejus particula proposita judicare vel
respondere. It is unjust to decide or respond to any particular part of
a law without examining the whole of the law. [7118, 711D-E] -
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2597
of 1983.

D From the Judgment and Order dated the 27th October, 1980 of
the Allahabad High Court in Second Appeal No. 567 of 1973.

K.V. Viswanathan, S.R. Setia, K.V, Venkataraman and C.S.
Vaidyanathan for the Appellants.

E Yogeshwar Prasad, P.K. Bajaj, Ms. Rachna Gupta, Ms. Rani
Chhabra for the Respondents.

The Judgment of the Court was delivered by

K.N. SAIKIA, J. This appeal is from the Judgment of the
F Allahabad High Court dated 27.10.1980 in Second Appeal No. 567 of ~
1973 allowing the appeal and decreeing the suit of the first respondent J
for specific performance of contract dated 5A.1966, wherein it was
stipulated that the defendant No. 1 (second respondent) had executed
a fictitious sale deed dated 2.9.1966 for Rs.1,000 in favour of
defendant No. 2 Kalawati, in respect of half of the suit chak and
G another sale deed dated 21.12.1966 for Rs.2,000 in favour of defen-
dant No. 3 Mithlesh Kumari. Accordingly the plaintiff (first respon- _.J __
dent) prayed for directing the defendants 2 & 3 (appellants herein) to -"'"'\
execute the required sale deed in case it was not possible for the court
to get it executed by defendant No. 1.

H The first respondent Feteh Bahadur sued the second respondent
MITIILESH KUMARI v. F.B. SINGH [SAIKIA, J.] 703

""'-~Jang Bahadur and the appellants in O.S. No. 278 of 1970, for specific
performance of his contract whereunder the second respondent Jang ~.
Bahadur had agreed to sell his chak No. 249 admeasuring 10 bighas, 12
biswas and 10 biswansis to the first respondent for Rs.5,000 out of
which Rs.4,000 were paid and the balance Rs.1,000 to be paid within 5
years whereafter second respondent Jang Bahadur was to execute a
sale deed in favour of the first respondent Fateh Bahadur. The Court B
~ of Munsif, Fatehpur decreed the suit only for recovery of Rs.4,850
· plus pendenti lite and future interest on Rs.4,000. Fateh Bahadur's
appeal therefrom having been dismissed by the Civil Judge he prefer-
red second appeal No. 567 of 1973 in the High Court of Judicature at
Allahabad, contending that the transfers in favour of defendant Nos. 2
& 3, the appellants herein, by Jang Bahadur were in contravention of
the provisions of Section 168-A of the U.P. Zamindari Abolition and c
Land Reforms Act, 1950 (U.P. Act No. 1of1951) hereinafter referred
~ ~y to as 'the Act', and thus were void and that the view taken by the lower
court that the title of Jang Bahadur came to an end since void transfers
were made in favour of appellants Kala~ati and Mithlesh Kumari, and
thus, Jang Bahadur was no longer the holder of any title which could
be conveyed to Fateh Bahadur was erroneous in law. Reliance was
placed on a decision of the High Court in Parmanand v. Board of
Revenue, U.P., Allahabad reported in 1966 ALJ 963. The defendants 2
~, b& 3Jwho Barehapdpell_ants h~refin, contended that the two transfers made
y ang a a ur m theu avour were not hit by the provisions of
Section 168-A of the Act inasmuch as the transfers were of a portion of E

--
the shares of Jang Bahadur in the plot in dispute. It was urged that for
a transfer being hit by provisions of Section 168-A of the Act the same
should be in respect of a specific piece of land and not a share in a
holding. Reliance was placed on a decision of the same High Court in
Bibhuti v. Kashi Ram, 1977 A WC 491.
F
It was not disputed that the area of land transferred under the
two sale deeds in favour of appellants Kalawati and Mithlesh Kumari
amounted to fragments under the Act. The High Court considered the
question as to whether a transfer which had been made not of the
entire share of a tenure-holder in a holding but of a fragment would be
hit by the provisions of Section 168-A of the Act and took the view that G
.... the two transfers made in favour of Kalawati and Mithlesh Kumari
were clearly hit by the provisions of Section 168-A of the Act in view of
the provisions of sub-clause (2) of that section and that the benefit of
Section 43 of the Transfer of Property Act couJd be avaiJed by
Kalawati and Mithlesh Kumari only if the sale deeds executed in their
favour could be looked into and as those sale deeds were void in the H
704 SUPREME COURT REPORTS [1991] 1 S.C.R.

eye of law it would be presumed as if no legal transfer took place in Y----
A
their favour and there being no legal transfer no question of applicabi-
lity of Section 43 of the Transfer of Property Act arose. As Jang
Bahadur executed the agreement of sale in favour of Fateh Bahadur
and as the sale deeds in favour of Kalawati and Mithlesh Kumari were
held to have been void, Fateh Bahadur, according to the High Court,
B was entitled to a decree of specific performance against Kalawati and
Mithlesh Kumari on. payment of Rs._ l,000 W:ithin a pe~i~d 2 ~onths _A__.-
from the date of receipt of the record m the tnal court failmg which the
court would execute the sale deed in favour of the plaintiff. The appeal .
was accordingly allowed and the suit decreed as above.

c submitsMr. K.V. Vishwanathan, the learned counsel for the appellants
•.....
that the sale made by Jang Bahadur to the 2nd appellant
Kalawati on 2.9.1966 being hit by the provisions of Section 168-A of
the Act the subject matter of transfer i.e. 5 bighas, 6 biswas and 5 'y-~
biswansis of Plot No. 249 in village Kichakpur got vested in the Gov-
ernment and the interest of Jang Bahadur in that part of the holding
D stood extinguished on the date of transfer i.e. 2.9.1966; that the sale
made to Kalawati being void, Jang Bahadur was left only with 5
bighas, 6 biswas and 5 biswansis in Plot No. 249 of village Kichakpur.
Jang Bahadur having transferred that whole or entire portion to the
first appellants Mithlesh Kumari by sale deed dated 21.12. 1966, such _J <
transfer being a transfer of the whole area of the Bhumidhar it would ~ ',__
E be covered by the proviso under Section 168-A and as such, the sale --
would not be hit by the provisions of Section 168-A; that Sections 166,
167, 168, 168-A and 189(aa) form a scheme and if the sale is hit by the
provision of 168-A, the result would be that on the date of sale, the
interest of the vendor in the subject matter of sale would stand exting-
uished under Section 189(aa) and hence 189(aa) is the provision which
F extinguishes the right of the vendor in that part. of the holding which he _
contracted to sell in violation of Section 168-A; .and that the interest of~~ ,
the transferee would stand extinguished under Sections 167 & 168 when
the Gaon Sabha or the landholder ejects the transferee from the pre-.
mises. According to counsel, harmoniously construing Sections 168
and 189(aa), it would be amply clear that while 189(aa) extinguishes
G the interest of the vendor on that part of the property which he con-
tracted to sell in violation of 168-A on the date of transfer itself, the J ,..
interest of the transferee would be extinguished on ejectment from the ~
suit premises; and the High Court erred in directing the appellants to
specifically execute the sale deed in favour of the first respondent.

H Ms. Rachna Gupta, the learned counsel for the first respondent.
MITHLESH KUMARI v. F.B. SINGH [SAIKIA, J.] 705

....__, ~submits that as the sale deeds in favour of the two appellants have been
held to be void the High Court rightly decreed the suit for specific A ·
performance against them on payment of the balance of Rs. l,000 and
that he having been in possession of the land and the second respon-
dent's fragmented sales having been found to be void, even if the land
would vest in the State, the first respondent would not be divested
automatically and the State has to seek possession in accordance with B :
--~1- the law.
The only question that falls for determination is what would be
the effect of the two fragmented sales in favour of the appellants. In
other words, whether as a result of the two sales the entire holding of
the bhumidhar Jang Bahadur would vest in the State or only the half in
the first sale would vest in the State and the remaining half would c
thereafter constitute the whole in the hand of the bhumidhar Jang
Bahadur and the second sale being of the whole of his remnant holding
would be valid so as to convey and transfer right to the vendee Mith-
lesh Kumari.
D
There is no dispute that the land of 10 bighas, 12 biswas and 10
biswansis was itself a fragment as defined in clause 8(a) of Section 3 of
the Act being less than 3.125 acres. There is also no dispute that the
suit land is in a consolidated area and that the appellants were not
tenure-holders. It would, therefore, follow that the two halves sold to
the appellants were fragments of a fragment. E

._ The Act was passed as it was considered expedient to provide for
the abolition of the Zamindari system which involved intermediaries
between the tiller of the soil and the State in Uttar Pradesh and for the
acquisition of their rights, title and interest and to reform the law
·-~ relating to land tenure consequent upon such abolition and acquisition F
· and to make provision for other matters connected therewith. The
original Act did not define fragment. The definition of 'fragment' was
added by Section 2 of the U.P. Act XVIII of 1956 with a view to
prevent fragmentation and promote consolidation of holdings in order
to avoid uneconomic units. Sections 152 to 175 of the Act dealt with
transfer. Section 152 provided: . G

"The interest of a bhumidhar with transferable rights shall
subject to the conditions hereinafter contained, be trans-
ferable.

(2) Except otherwise expressly permitted by this Ac't or H
706 SUPREME COURT REPORTS [1991] 1 S.C.R.

any other law for the time being in force, the interest of a~ ___,.,
A bhumidhar with non-transferable rights shall not be trans-
ferable.

(3) A bhumidhar referred to in sub-section (2) may, in
such circumstances as may be prescribed, mortgage, with-
B out possessions his interest in his holding, as security for a
loan taken from the State Government by way oftaqavi, or~. _
from a cooperative society or from the State Bank of India, · ...-
or from any other bank, which is a Scheduled bank within
the meaning of clause (e) of Section 2 of the Reserve Bank
of India Act, 1934, or from the Uttar Pradesh State, Agro- *
Industrial Corporation Limited, and may also transfer by -
c way of gift, the interest in his holding, except the part
thereof which has been so mortgaged, to _a recognised
educational institution for any purpose connected with y~
instructions in agriculture, horticulture and animal 1
· husbandry."
D
The interests of sirdar or asami were originally not transferable
as Section 153 said: "Except as expressly permitted by this Act, the
interest of a sirdar and asami shall not be transferable." Sections 154
to 170 dealt with transfer of land by bhumidhar. Section 166 originally __j ~
provided that any transfer made by or on behalf of a sirdar or asami in · "'--
E contravention of the provisions of that chapter was to be void. Section --
166 has undergone amendments. The section was substituted by the
present section by U.P. Act No. XX of 1982 with effect from 3.6.1981.
The present section says: "Every transfer made in contravention of the
.....
provisions of this Act shall be void." What was the position in 1966 on
the dates of the instant sales has to be known and correctly applied.
F Section 167 earlier provided for the consequences of void transfers in A.;•
the following language: __,,..._ ~ '

167. (1) Where a sirdar or asami has made any transfer in
contravention of the provision of this Act, the transferee
and every person who may have thus obtained possession
G of the whole or part of the holding shall be liable to eject-
ment on the suit of the Gaon Sabha or the landholder, as J ..._
the case may be. \

(2) A decree for ejectment under sub-section (1) may
direct the ejectment of the sirdar or asami from the whole
H or part of the holding as the Court may, having regard to
MITHLESH KUMAR! v. F.B. SINGH [SAIKIA, J.] 707

the circumstances of the case, direct."
A
This section was also substituted by the same Act No. XX of 1982 with
effect from 3.6.1981. Section 167 now says:

"167. (1) the following consequences shall ensue in respect
of every transfer which is void by virtue of Section 166, B
namely-

(a) the subject-matter of transfer shall with effect
from the date of transfer, be deemed to have vested in the

- State Government free from all encumbrances;

• (b) the trees, crops and wells existing on the land on c
the date of transfer shall, with effect from the said date, be
deemed to have vested in the State Government free from
all encumbrances;

(c) the transferee may remove other moveable pro- D
perty or the materials of any immovable property existing
on such land on the date of transfer within such time as may

-
be prescribed.

(2) Where any land or other property has vested in
the State Government under sub-section (1), it shall be E
lawful for the Collector to take over possession over such
land or other property and to direct that any person
occupying such land or property be evicted therefrom. For

-
the purposes of taking over such possession or evicting such
unauthorised occupants, the Collector may use or cause to
be used such force as may be necessary." F

The position before the amendment has not been shown to us to
enable us to apply the relevant law to the facts of the case. Section· 168
which dealt with consequences of ejectment under Section 167 has
been omitted by U .P. Act No. VIII of 1977 with effect from 28.1.1977.
What was the provision in 1966 is not clear to us. We are told that the G
.... \....section stood as follows in 1966: "S. 168.-Consequences of ejectment
!under section 167. All the rights and interests of the sirdar and asami
upon ejectment in a suit under section 167 in the holding (or part
thereof) or in any improvement macie therein or to get compensation
for such improvements shall be extinguished." But we have not been
shown the enactment. H
708 SUPREME COURT REPORTS [1991l 1 S.C.R.

Section 168-A was added by Section 9 of U.P. Act XVIII of~
A 1956, subject to the saving contained in Section 23 thereof. This
~ection now says:

"168-A. Transfer of fragments.-Notwithstanding the pro-
visions of any law for the time being in force, no person
B shall transfer whether by sale, gift or exchange any frag-
ment situate in a consolidated area except where the trans- ~
fer is in favour of tenure-holder who has a plot contiguous --
to the fragment or where the transfer is not in favour of any
such tenure-holder the whole or so much of the plot in
which person has bhumidhari rights, which pertains to the
c
fragment is thereby transferred. ....
(2) The transfer of any land contrary to the provi-
sions of sub-section ( 1) shall be void. y--
(3) When a bhumidhar has made any transfer in con-
D travention of the provisions of sub-section (1) the provi-
sions of Section 167 shall mutatis mutandis apply."

Section 168-A has undergone amendment by Section 2 of U.P. Act
XXVIII of 1961 when for the words "whole of the plot to which the 1 _
fragment pertains is hereby transferred", the present words "the~
E whole or so much of the plot in which the person has bhumidhari right~
which pertains to the fragment is hereby transferred" were substitu-
ted. This amendment 'would not affect the instant case. Some words
between '167' and 'shall' were omitted by U.P. Act XIII of 1977; with
....
effect from 28.1.1977. It may be necessary to know what those were.
Sub-section (1) of Section 168-A begins with a non-obstante clause and
F it over-rides the provisions of any law for the time being in force. The · '
expression 'no person' would include the bhumidhar. The object of the~-
section is to prevent fragmentation of land situated in a consolidated
area and transfers that would result in fragmentation or further
fragmentation shall be void and to such transfers Section 167 will
mutatis 'mutandis be applicable. This section comes into play only
G when a fragment situated in a consolidated area is transferred. If trans-
fer of a fragment is made in favour of tenure-holder who has a plot
/
contiguous to the fragment, the purpose of law is not defeated·~ .-
inasmuch as it ·will by consolidated with the contiguous plot of the
transferee. When the land held by a person in a consolidated area is
already a fragment then as was provided previous to the amendment in
H 1961 the whole of the plot to which the fragment pertained was to be ;
MITHLESH KUMAR! v. F.B. SINGH [SAIKIA, J.] 709

,.l -~·transferred. After the amendment, the invalidity and applicability of
Section 167 is limited to a case where the transfer is not in favour of
any such tenure-holder and to the whole or so much of the plot in
which the person has bhumidhRri rights which pertains to the fragment
is thereby transferred. If the transferor had bhumidhari rights on the
whole of the fragment the whole has to be transferred. If the person
has bhumidhari rights only in a part of the plot that part on which he B
,.i_ has bhumidhari rights can be transferred. The part on which the
person has not bhurnidhari rights is not covered by the provisions not
because that would not result in further fragmentation but because he
had transferable bhumidhari rights only on that portion and not on the
other portion. There is no doubt that under sub-section (2) transfer of
any land contrary to the provisions of sub-section (1) shall be void and
under sub-section (3) the provisions of section 167 shall mutatis c
mutandis apply.
~/
Section 189 deals with extinction of the interest of a bhumidhar
with transferable rights and Section 190 deals with extinction of the
interest of a bhumidhar with non-transferable rights. Section 189 earlier D'
provided:

"189. The interest of a bhumidhar in his holding or any
part thereof shall be extinguished-

(a) when he died intestate leaving no heir entitled to E
inherit in accordance with the pr<?visions ·Of this Act;

(b) when the land comprised in the holding has been
acquired under any law for the time being in force relating
to the acquisition of land, or
F
(c) when he has been deprived of possession and his
right to recover possession is barred by limitation"
'
The words "bhumidhar with transferable rights" were substituted in
the first sentence by U.P. Act XVIII of 1977 with effect from 28.1.1977.
Clause (aa) was added by Section 50 of U.P. Act XXXVII of 1958, so G
.. }--· that the amended section now reads:

"189. Extinction of the interest of a bhumidhar with trans-
ferable rights.-The interest of a bhumidhar with transfer-
able rights in his holding or any part thereof shall be
extinguished- H
710 SUPREME COURT REPORTS [1991) 1 S.C.R.

A
(a) when he dies intestate leaving no heir entitled t~ ~.
inherit in accordance with the provisions of this Act;

(aa) when the holding or part thereof has been trans-
ferred or let out in contravention of the provisions of this
Act;
B
(b) when the land comprised in the holding has been~-
acquired under any !aw for the time being in force relating
to the acquisition of land; or

(c) when he has been deprived of possession and his
right to recover possession is barred by limitation."
c
The substitution of the words "bhumidhar with transferable rights" for ""- _____........
the word "bhumidhar" would not make any difference when the 1' .
bhumidhar had transferable rights but would make a difference where '
the bhumidhar had also lands with non-transferable rights. Thus,
D under the amended provisions the interest of a bhumidhar with trans-
ferable rights in his holding or in part thereof shall be extinguished
when the holding or part thereof with bhumidhari rights has been
transferred or let out in contravention of the provisions of the Act. In
other words when he had bhumidhari rights on the entire holding and~
the same is transferred or let out in contravention of the provisions of <\,..
E the Act his interest shall be extinguished. If he had bhumidhari right
only on a part thereof and it has been transferred or let out in contra-
vention of the provisions of the Act his interest in bhumidhari right in .....
that part shall be extinguished. The reason behind the provisions to
make fragmentation is the need to prevent further fragmentation if the
bhumidhar with his bhumidhari rights over a fragment tries to transfer
F the fragment, his right over the fragment is extinguished. Will the~ ~
same be the result if instead of transferrin_g the entire fragment he ,
transfers a fragment of a fragment? If only a fragment of a fragment is
so transferred would the whole fragment be vested in State?

Applying the law to the facts of the case in hand we find that the
.G bhumidhar Jang Bahadur's land admeasuring 10 bighas, 12 biswas and
10 biswansis was itself admittedly a fragment. Jang Bahadur entered .~ ...
into· an agreement to seU the land on 5 .4.1966 and the first re~pondent
Fateh Bahadur on payment of advance of Rs.4,00b is stated to have
had possession of !he land. That sale would attract the provisions of
Section 168-A if it resulted in transfer of the fragment. The sales to the
H appellants.Kalawati defendant No. 2 was dated 2.9.1966 and to Mith-
MITHLESH KUMAR! v. F.B. SINGH [SAIKIA, J.] 711

mA---..,.,.Jesh Kumari defendant No. 3 was dated 21.12.1966. These two sales A
1 would be covered by the old provisions of sections 166 and 167, which

sections did not deal with the case of bhumidhar but only by sirdar or
asami. But Section 168-A would be attracted and the provisions of
Section 167 would mutatis mutandis be applicable.
B
The High Court did not examine the facts of the case in .light of
the laws prevailing at the time of the sales. If the sales were in contra-
.... __ ~ention of the provisions of law so as to entail invalidity of the sale and
vesting of the land sold in the State, the question whether in such a
case specific performance of the contract would be justified or not
would also be germane. While holding both the sales to the appellants

-- ...- to have been void, the High Court did not take into consideration the
exception as to transfer of "the whole or so much of the plot in which
the person has bhumidhari rights." The High Court also failed to
.., . -~otice and apply clause (aa) of Section 189 which was added by Section
c

50 of U.P. Act:XXXVII of 1958 and was applicable to the case.
D
Festinatio justitiae est noverea informateeni. (Hob. 97) Hasty
justice is stepmother of misfortune. lnjustum est nisi tota Lege impecta,
de una aliqua ejus particula proposita judicare vel respondere. It is
unjust to decide or respond to any particular part of a law without
. examining the whole of the law. But we are in time constraint. By
~onsensus with the learned counsel for the parties, we set aside the
E
impugned order and remand this case to the High Court for disposal in
accordance with the law applicable to the facts of the case expediti-
ously. The appeal is disposed of accordingly. We leave the parties to
bear their own costs.

Y,P.R. Appeal disposed of.

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