Harish Chandra vs State on 13 November, 2019

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Allahabad High Court

Harish Chandra vs State on 13 November, 2019

This petition raises the issue of whether a will when executed would amount to a transfer as contemplated under Section 5(6) of the U.P. Imposition of Ceiling on Land Holdings Act 19601. Before proceeding to answer the question as framed it would be pertinent to notice the following essential facts.

The original tenure holder Devi Dutt had two sons namely Sheo Sampat Lal and Rishal Chandra. Sheo Sampat Lal had one son Raj Narain who died in 1954. However, Raj Narain on 23 April 1954 executed a will in favour of the petitioner bequeathing his share in the ancestral property. It is stated that on the basis of the aforesaid will the name of the petitioner was entered in the revenue records on 1 January 1955. Rishal Chandra had one son named Ram Chandra, the father of the present petitioner. During the course of consolidation operations chaks were carved out equally between the petitioner and Ram Chandra. Ram Chandra, the father of the petitioner, is stated to have entered into a second marriage from which Munish Chandra and Subhash Chandra were born. Since the petitioner already stood recorded over half of the ancestral property and chaks had also been carved out accordingly during the course of consolidation operations, Ram Chandra executed a will on 21 October 1974 bequeathing his half share in the ancestral property to Munish Chandra and Subhash Chandra. Ram Chandra ultimately died on 22 November 1983. Notices under Section 10(2) of the Act, however, came to be issued in his name on 24 September 1984. On receipt of that notice and since Ram Chandra had died in the meanwhile, the petitioner and his two brothers filed objections before the Prescribed Authority. The Prescribed Authority by his order of 21 February 1986 declared 10.15 acres as surplus. While framing the said order, although the Prescribed Authority noticed the will executed in favour of the petitioner on 23 April 1954, he held the petitioner and his two brothers liable to be recognised as holding 1/3rd share in the entire property. When the matter was taken in appeal the Additional Commissioner in terms of his order of 5 November 1988 ruling upon the validity of the will executed in favour of the brothers of the petitioner held that since that had been executed on 21 October 1974 and thus evidently after the cut off date of 24 January 1971 as prescribed in Section 5(6) of the Act, it was liable to be ignored. It is in the aforesaid backdrop that the instant writ petition came to be preferred before this Court.

Assailing the orders impugned, Sri R.C. Singh, learned Senior counsel appearing for the petitioner, contends that both the authorities have clearly erred in holding the petitioner and his two brothers to be co-sharers to the extent of 1/3rd each in the ancestral property. Referring to the will executed in favour of the petitioner on 23 April 1954, it was submitted that by virtue of that testament, the petitioner came to hold one half share in the ancestral property. According to Sri Singh since the consolidation authorities had also recognised his rights and had made allotments in favour of the petitioner and Ram Chandra in equal proportion, there was no occasion for the ceiling authorities to ignore the will and the orders passed in those proceedings. Sri Singh submitted that his two brothers inherited one half share in the ancestral property by virtue of the will executed by the father on 21 October 1974. According to Sri Singh the land holding of the petitioner and his two brothers were liable to be assessed under the Act in accordance with the testamentary instruments referred to above. Sri Singh submitted that the notice under Section 10(2) had undisputedly come to be issued after the death of the father of the petitioner. He assailed the impugned orders also on the ground that although the petitioners appeared and contested those proceedings, no individual notices under section 10(2) of the Act had been issued to them. Sri Singh then submitted that the Additional Commissioner has clearly erred in construing the will executed by his father in favour of his two brothers to be a transfer. Sri Singh contended that a will only embodies the intention of the testator to devolve property after his death. According to Sri Singh, a will only evidences a disposition of property which is to take effect upon the death of the testator. In view of the above, it was his submission that the will could not be construed as a "transfer" as contemplated under Section 5(6) of the Act. In support of his submission, Sri Singh relied upon the following principles as enunciated by the Supreme Court in S. Rathinam Vs. L.S. Mariappan2: -

"19. A will denotes a testamentary document. It means a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is in its own nature ambulatory and revocable during his life.

20. In Uma Devi Nambiar and Others v. T.C. Sidhan (Dead) [AIR 2004 SC 1772], it was held :

"10. Will is a translation of the Latin word "voluntas", which was a term used in the text of Roman law to express the intention of a testator. It is of significance that the abstract term has come to mean that document in which the intention is contained. The same has been the case with several other English law terms, the concrete has superseded the abstract obligation, bond, contract, are examples (William: Wills and Intestate Succession , p. 5). The word "testament" is derived from " testatio mentis ", it testifies the determination of the mind. A Will is thus defined by Ulpians as " Testamentum est mentis nostrae justa contestatio in id sollemniter facta to post mortem nostrum valeat ." Modastinus defines it by means of voluntas. It is "voluntatis nostrae justa sententia, de eo quod quis post mortem suam fieri vult (or velit )"; the word " justa " implying in each, that, in order to be valid, the testament must be made in compliance with the forms of law. It means, "the legal declaration of a man's intentions, which will be performed after his death". A last Will and testament is defined to be "the just sentence of our Will, touching what we would have done after our death". Every testament is consummated by death, and until he dies, the Will of a testator is ambulatory. Nam omne testamentum morte consummatum est; et voluntae testamentoric est embulatoria usque od mortem. (For, where a testament is, there must also of necessity be death of testator; for, a testament is of force after men are dead; otherwise it is of no strength at all while the testator liveth.) A "Will", says Jarman, "is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." (Jarman on Wills, 1st Edn., p. 11.) This ambulatory character of a Will has been often pointed out as its prominent characteristic, distinguishing it, in fact, from ordinary disposition by a living person's deed, which might, indeed postpone the beneficial possession or even a vesting until the death of the disposer and yet would produce such postponement only by its express terms under an irrevocable instrument and a statement that a Will is final does not import an agreement not to change it. (Schouler: Law of Wills, S. 326). A Will is the aggregate of man's testamentary intentions so far as they are manifested in writing, duly executed according to the statute."

21. A testator by his will, may make any disposition of his property subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. A will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution. [See Beru Ram and Others v. Shankar Dass and Others - AIR 1999 J&K 55]. "

Refuting those submissions, learned Standing Counsel submitted that since no partition had been affected amongst the brothers in formal and legal terms, the respondents correctly recognised them as holding 1/3rd share in the ancestral property. According to the learned Standing Counsel while notices may not have been issued individually to the petitioner and his brothers, since they appeared and contested the matter before the Prescribed Authority as well as the Additional Commissioner, no prejudice as such stood caused and consequently the impugned orders are not liable to be set aside on this score.

The answer to the question of whether a will would be liable to be construed as a "transfer" would depend upon the construction of Section 5(6) of the Act. That provision reads thus: -

"(6) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account :

Provided that nothing in this sub-section shall apply to--

(a) a transfer in favour of any person (including Government) referred to in sub-section (2);

(b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family.

Explanation I.--For the purposes of this sub-section, the expression 'transfer to land made after the twenty-fourth day of January, 1971, includes--

(a) a declaration of a person as a co-tenure-holder made after the twenty-fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971;

(b) any admission, acknowledgment, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner.

Explanation II.--The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit."

The Section prescribes that while determining the ceiling area of a tenure holder any transfer of land made after 24 January 1971 which but for the transfer would have been declared as surplus shall be ignored and not taken into account. On plain terms sub-section (6) appears to empower the respondents while implementing the provisions of the Act to ignore transfers made after 24 January 1971. However as is evident from the Proviso appended to sub-section (6), a transfer per se is not liable to be rejected. This, since firstly, transfers in favour of persons including those specified in Section 5(2), are excluded from the operation of the injunct engrafted in sub-section (6). Section 5(2) enumerates the categories of persons and legal entities who would stand exempted from the rigour of Section 5(1). Amongst others, it includes the Central Government, State Government, Local Authority, University, an intermediate college etc. Similar safeguards stand placed in respect of transfers that may be affected by individuals after 24 January 1971. This is evident from a perusal of clause (b) to the Proviso which states that it would be open for a tenure holder to commend to the respondents not to ignore a transfer made after the cut off date provided it is established that it was made in good faith, for adequate consideration and by way of an irrevocable instrument as also in a situation where the transfer is made for the immediate or deferred benefit of the tenure holder or the members of his family. On a holistic reading of sub section (6) it is therefore manifest that transfers made after the cut off date are not ipso facto liable to be ignored. A transfer, even though made after the cut off date, can still stand saved provided the tenure holder is able to establish that it falls within the ambit of clause (b) of the Proviso. As this Court reads the order of the Additional Commissioner, it is evident that the will executed in favour of the brothers of the petitioner on 21 October 1974 has not been tested or evaluated on the anvil of clause (b) at all. The Additional Commissioner while proceeding to reject and ignore that transfer does not record any findings that the transaction was not made bona fide or that it did not satisfy the other factors which stand enumerated in that clause.

Notwithstanding the above, in the considered view of the Court, the impugned orders are liable to be set-aside on a more fundamental ground. Sub-section (6) speaks of "transfer". As is evident upon a conjoint reading of the substantive provision of that Section and the Proviso appended thereto, it clearly contemplates a transfer made in praesenti. This, since evidently that provision would stand attracted only if a transfer has been made, completed and accomplished after the 24th of January 1971. It clearly operates in respect of a disposition of property made after the cut off date which has taken effect. It cannot by any stretch be read as taking within its ambit something which is indefinite or undetermined. As was lucidly explained by the Supreme Court in S Rathinam, a will which is a testamentary document comes into effect only upon the death of the testator. It was also significantly observed that a will by virtue of its intrinsic character is naturally "ambulatory". This since it is always revocable during the lifetime of the testator. A will in its fundamental terms merely embodies a disposition of property which is to take effect after the death of the deceased. It is in that light that the Supreme Court held that a will by its very nature is distinct from a transfer.

Dealing with an identical question, the Supreme Court in Mahadeo Vs Shakuntalabai3 was called upon to consider whether a will would fall within the ambit of Section 57 of the Bombay Tenancy and Agricultural Lands Act 1958. Section 57(2) of that Act provided that any transfer of land made in violation of sub-section (1) would be invalid. Dealing with that question, the Supreme Court held thus: -

"5. On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissible by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition in so far as the transfer of land by way of a Will is concerned. In fact, in view of the decision of this Court in State of West Bengal and Anr. v. Kailash Chandra Kapur and Ors. (1997) 2 SCC 387, devolution of property by way of a Will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a Will takes effect after demise of the testator and transfer in that perspective becomes incongruous.

6. That the beneficiary of a Will receives the property by way of devolution and not by way of transfer is also made clear by the decision of this Court in S. Rathinam alias Kuppamuthu and Ors. v. L.S. Mariappan and Ors. (2007) 6 SCC 724 wherein this Court has held in para 21 that:

"21. A testator by his Will, may make any disposition of his property subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. The Will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution."

In coming to this conclusion, this Court referred to Beru Ram v. Shankar Dass AIR 1999 J & K 55."

From the position of law as exposited in S. Rathinam and Mahadeo, it is manifest that a will would clearly not fall within the scope of the expression "transfer" as employed in Section 5 (6). The will executed in favour of the brothers of the petitioner could not have been held or recognised as embodying a transfer for the purposes of the Act. It is manifest that the will which was executed in favour of the brothers of the petitioner could not be said to fall within the ambit of Section 5(6) of the Act. This in itself renders the impugned orders wholly unsustainable.

The writ petition is accordingly allowed. The impugned orders dated 21 February 1986, passed by the Prescribed Authority and 5 November 1988 passed by the Additional Commissioner are hereby quashed.

Order Date: - 13.11.2019 LA/-

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Allahabad High Court