The suit for cancellation of a sale deed was barred under Section 49 of the U.P. Consolidation of Holdings Act due to failure to prove the existence of a Joint Hindu Family or that the property was acquired with joint family funds.

JUDGMENT :

Kshitij Shailendra, J.

The Appeal

1. This is defendants’ second appeal arising out of concurrent judgments passed by the civil court and the first appellate court whereby Original Suit No.625 of 1971 (Shri Subhash Chand and others vs. Shri Jetha Nand and others) claiming a decree for cancellation of a registered sale deed dated 23.08.1968 (hereinafter referred to as ‘the sale deed’) has been decreed and the Civil Appeal No.641 of 1979 (Shri Shiv Charan Das and others vs. Shri Subhash Chand & others) arising therefrom has been dismissed.

BRIEF FACTS AND PLAINT CASE

2. One Jhanda Ram (in short ‘JR’) had four sons namely Ram Chandra (non-party), Pyare Lal (defendant No.3) (in short ‘PL’), Khanda Ram (non-party) and Jetha Nand (in short ‘JN’) (defendant No.1). JN was married to Smt. Dhanwanti Devi (in short ‘DD’) (defendant No.2). JR died in the year 1959, PL died in the year 1973 and JN died in the year 1993. PL had six sons, out of whom, reference of only three is relevant. These are Prem Kumar (Defendant No.4), Navin Kumar (defendant No.5) and Shyam Kumar. JN (since deceased) is succeeded by his five sons Subhash Chandra and four others who are respondent Nos.1 to 5 in the instant second appeal whereas wife and two sons of late PL are appellants herein.

3. The suit was instituted stating that plaintiffs were living as members of Joint Hindu Family (in short ‘HUF’) with defendant Nos. 1 and 2 and JR was Karta of the HUF; the said HUF being in existence since 1947. JR, the grandfather of plaintiffs, purchased an agricultural land in district Meerut from HUF funds in the name of defendant No.1-JN in the year 1953 and also purchased some landed property separately in the names of his other sons (non-parties) in the same year. After the death of JR, defendant No.1-JN who was subsequently transposed as plaintiff No.6 pursuant to various proceedings referred to hereinlater, managed the land for a couple of years as Karta of HUF. JN had to go out of Meerut for business purposes in 1963 and, while his sons were minors, JN entrusted management of the said HUF in the hands of defendant No.3-PL. The village and land in question came under consolidation operations in the year 1966, a separate chak was allotted in the name of JN and PL continued to supervise cultivation activities but withheld rabi crops of 1378 Fasli and, on asking, he denied plaintiffs’ entitlement to the crops stating that the same belonged to defendants No.4 and 5. The plaintiffs came to know in May 1971 that HUF land had been transferred by PL to defendant Nos.4 and 5 on 23.08.1968 at the strength of a power of attorney executed by JN. Assailing the sale deed, it was alleged that JN had no right to execute the power of attorney dated 19.06.1963 in favour of PL in respect of HUF property, the sale was based upon malafides, collusion, for an inadequate consideration and was a sham transaction. Accordingly, a decree for cancellation of the sale deed was claimed.

DEFENCE

4. Defendants No.1 and 2 (JN and DD), in their joint written statement, admitted execution of the sale deed as well as power of attorney. They denied the allegations that JN had no right to execute power of attorney, however, they pleaded existence of HUF and JR being its Karta since partition of India and stated that HUF had a joint fund and the property had been purchased in the year 1953 by JN, who executed a power of attorney in favour of his elder brother PL for the purposes of looking after the litigation and cultivation but PL broke the confidence by executing sale deed in favour of his sons. Seller and purchaser, i.e PL and his son Navin Kumar, filed joint written statement denying constitution of a Joint Hindu Family stating that JR was a person of ordinary means and status; his sons, after attaining majority, separated themselves and used to earn their own livelihood; PL was separated in 1927; he plied a taxi for sometime and, thereafter, got employment in different firms; he then became a work