JUDGMENT

Satish Chandra, J. - This special appeal arises out of a suit for cancellation of a sale deed.

Dhan Singh and Musa Singh, Respondents 9 and 10, on 1-9-1959 executed a sale deed in respect of their share in the Khaikari holding situate in village Pipna, district Almora, in favour of Respondents 3 to 8. The Appellants instituted a suit for cancellation of this sale, in a representative capacity, claiming it to be on behalf of the entire Khaikari body of the village. Their case was that village Pipna was a pucca Khaikari village. In law pucca Khaikari rights were heritable but not transferable. The sale deed was illegal and liable to be cancelled.

2. In defence it was pleaded by the vendees that they were also members of the Khaikari body of the village. A sale in their favour was valid.

3. The trial court upheld the plaint case and decreed the suit. On appeal the decree was affirmed. The Defendants preferred a second appeal Under Rule 14 of the Kumaun Tenancy Rules. The Commissioner, Kumaun Division, on 29-1-1959 allowed the appeal. He held that a transfer of Khaikari rights was not void ab initio but only voidable. The Khaikari body was entitled to challenge the transfer but in doing so they had to show reasonable and cogent reasons against the transfer. In the present case no such reasons are forthcoming. The interests of the Khaikari body are not adversely affected because a transfer has been made in favour of some of the members of the Khaikari body. There are, therefore, no valid reasons for cancelling the sale deed. On these findings the suit was dismissed. The Plaintiffs then went up to the Board of Revenue in revision. The Board upheld the reasoning and the conclusion of the Commissioner and dismissed the revision. The dispute was carried by the Plaintiffs to this Court in a writ petition which was also dismissed. In the present appeal Mr. L.M. Pant appearing for the Appellants reiterated the plaint case and urged that as far back as 1930 the Board of Revenue had in the case of Dharma Nand v. Debi Dutt Selected Revenue Decision No. 13 of 1929-30 held that transfer of Khaikari rights was voidable at the instance of the Khaikari body. It was thus the discretion of the Khaikari body to sue for the setting aside of a sale. The suit could not validly be dismissed on the ground that the Plaintiffs must show that their interests have been adversely affected.

4. In Dharma Nand's case the mother of the Plaintiff had, during the Plaintiff's minority, executed the sale deed for legal necessity. The sale deed recited the necessity. The Plaintiff instituted the suit for cancellation of the sale deed under the guardianship of his uncle. One of the pleas advanced by the Plaintiff was that the sale was not for legal necessity. It was also pleaded that the Khaikari rights were not transferable and as such the sale was invalid.

5. The Board of Revenue held that the sale was for legal necessity. In regard to the transferability of the pucca Khaikari rights, the Board observed:

Sir Henry Ramsay, describing the position of the pakka khaikars said 'they are in all respects equal to proprietors with the exception that they cannot sell their holdings and they pay a small sum in addition to the quota of revenue due from the land recorded in their names.' Later on as related on page 92 of Mr. Stowell's Manual Colonel Fisher held that Khaikars in a wholly khaikari village cannot transfer their holding by sale or gift. Mr. Stowell went on to give reasons for doubting the correctness of this view and it is believed that the question has never come before the Board for final decision.

For the purposes of the present case the proposition may be accepted that Khaikars have no right of transfer but it is to be considered whether a transfer made under the circumstances of the present case is absolutely void or merely voidable. Such transaction is not definitely forbidden by any law and it is neither immoral nor contrary to the public interest. Thi