Allahabad High Court
Ranjeet Singh vs State Of U.P. And 4 Others on 1 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:106047
Court No. - 5 Reserved
A.F.R.
Case :- WRIT - C No. - 18084 of 2022
Petitioner :- Ranjeet Singh
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Subodh Kumar
Counsel for Respondent :- C.S.C.
Connected with
Case :- WRIT - C No. - 18087 of 2022
Petitioner :- Rajwant Kaur And 2 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Subodh Kumar
Counsel for Respondent :- C.S.C.
Hon'ble J.J. Munir,J.
1. By this judgment, we propose to decide the present writ petition and connected Writ-C No.18087 of 2022 for reason that both the writ petitions relate to the same land, declared surplus under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 in proceedings, taken by the State against the same parties. And, of course, there are common questions of fact and law involved in both causes.
2. Since Writ-C No.18084 of 2022 was heard as the leading case, we propose to notice facts from the records of the said case.
3. This writ petition is directed against an order passed by the Prescribed Authority-Ceiling/ Additional Collector (Finance and Revenue), Pilibhit dated September the 16th, 2014 passed in Case No.5 of 2008-09, under Section 10(2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (for short, 'the Act'), declaring land surplus under the Act in the petitioner's hands to the extent of 1.525 hectares. Also, under challenge is an appellate order passed by the Additional Commissioner (Administration), Bareilly Division, Bareilly dated 19th May, 2022, dismissing the petitioner's appeal under Section 13 of the Act and affirming the order passed by the Prescribed Authority, last mentioned.
4. The facts giving rise to this petition are these:
Ranjeet Singh and his mother, Smt. Surjeet Kaur were two tenure-holders, who had agricultural holdings. Whereas Ranjeet Singh had a total of 6.970 hectares of land, his mother, Smt. Surjeet Kaur had a holding of 1.855 hectares. These holdings were bhumidhari with transferable rights and situate in the revenue villages of Baharua and Tondarpur Saharai, Pargana Pilibhit, Tehsil Sadar, District Pilibhit. As it appears, both the mother and son were independent tenure-holders and while in possession of their respective holdings, no proceedings for determination of surplus under the Act were drawn against them. It is, in fact, the petitioner's case that Ranjeet Singh and his mother, Surjeet Kaur were independent tenure-holders in their own right, who held land independent of each other within the permissible ceiling limits.
5. The genesis of the lis commenced when Ranjeet Singh's mother, Surjeet Kaur bequeathed her entire holding of 1.855 hectares to her three granddaughters, all married women, to wit, Smt. Gurjeet Kaur wife of Kuldeep Singh, Smt. Rajwant Kaur wife of Jaswant Singh and Smt. Lakhvar Kaur wife of Gurdev Singh, all daughters of Ranjeet Singh. This bequest was made by means of an unregistered Will dated 14.07.2004. Smt. Surjeet Kaur, the testatrix, died on 16.01.2005. The three legatees under the will, to wit, Smt. Gurjeet Kaur, Smt. Rajwant Kaur and Smt. Lakhvar Kaur made an application, seeking mutation of their names, on the basis of the last mentioned Will as succession opened out in terms thereof.
6. The Naib Tehsildar, Nuria, District Pilibhit, before whom the mutation matter came up on the basis of the will, granted it vide order dated 18.05.2005. The record would show that after registration of the case on the Naib Tehsildar's file, proceedings were duly advertised in order to put to notice any one, who might hold interest in the property, subject matter of mutation and wish to object. There was no objection. Treating the mutation matter, therefore, as 'non-contentious', the Naib Tehsildar granted it after recording necessary evidence. This resulted in expunction of the name of Smt. Surjeet Kaur and mutation in favour of Smt. Gurjeet Kaur, Smt. Rajwant Kaur and Smt. Lakhvar Kaur.
7. On the 18th of August, 2006, the Halqa Lekhpal for Tondarpur made an application to the Tehsildar, Tehsil Sadar, District Pilibhit pointing out that the mutation order passed by the Naib Tehsildar, last mentioned, on 18.05.2005 was one founded on an unregistered will, and, therefore, entirely illegal. He said that on the date the succession opened out, an unregistered Will relating to agricultural land was not admissible. He, therefore, prayed that the mutation case be restored to file and determined afresh on merits. The Tehsildar, entertaining the Lekhpal's restoration application, called for papers of the decided matter from the record room, put parties to notice and after hearing them, by an order dated 22.09.2006, allowed the restoration application, restoring the mutation case. The Tehsildar held that the legatees were not entitled under the unregistered Will dated 14.07.2004 in view of the amendment to Section 169 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Act of 1950) w.e.f. 23.08.2004, which made bequest of tenure land by a bhumidhar compulsorily registerable. The Tehsildar, therefore, held in favour of the State with a finding that on the date of demise of the testatrix, the provisions of Section 169 of the Act of 1950 stood amended, mandating a Will relating to tenure land compulsorily registerable. The Tehsildar vide order dated 22.12.2008, therefore, held that Smt. Gurjeet Kaur, Smt. Rajwant Kaur and Smt. Lakhvar Kaur were not entitled to be mutated on the basis of the unregistered will, and, Smt. Surjeet Kaur's holding would devolve by intestate succession under Section 171 of the Act of 1950 upon Ranjeet Singh, her son. He directed mutation in favour of Ranjeet Singh, expunging the names of the legatees. The Tehsildar forwarded a copy of his order to the Naib Tehsildar with a remark that the total holding now in the hands of Ranjeet Singh be inquired into to find out if it exceeds the ceiling limit under the Act. It was added that if it was above the ceiling limit, the matter be placed before the Ceiling Authority.
8. In the meantime, in a related development, the order of the Tehsildar dated 22.12.2008, declining mutation, was challenged by the legatees, Gurjeet Kaur and others in appeal carried to the Sub-Divisional Officer, Sadar, Pilibhit under Section 210 of the Land Revenue Act. The appeal aforesaid, that was registered as Appeal No.14 of 2008-09 on the file of the Sub-Divisional Officer, Sadar, Pilibhit, was dismissed vide order dated 02.07.2009. The legatees did not relent. They carried the matter in revision to the Commissioner, Bareilly Division, Bareilly. The Additional Commissioner (Administration), Bareilly Division, Bareilly, before whom Revision No.83 of 2010 came up, allowed the same, set aside the orders impugned passed by the two Mutation Authorities below and granted mutation in favour of the legatees. In reaching his conclusions, the Additional Commissioner, who allowed the revision, thought that the Will in this case being one dated 14.07.2004, that is to say, before the Amending Act, amending the provisions of Section 169 of the Act came into force, would continue to be governed by the unamended law, which never required registration.
9. The Revisional Court held that the amendment had no retrospective application and the fact that Surjeet Kaur died after the Amending Act came into force, would be of no consequence, inasmuch as the bequest was made while the law was still unamended. Mutation being granted in favour of the legatees, it was duly carried out in the revenue records and the Additional Commissioner's order was never challenged by the State by invoking appellate or review procedures. While the Mutation Authority accepted the testamentary disposition, the Tehsildar, the Lekhpal and the Additional District Magistrate made internal reports dated 31.01.2009, 04.02.2009 and 25.03.2009, on the basis of which the Prescribed Authority under the Act issued two separate notices, both dated 30.04.2009, one to Ranjeet Singh and the other to Rajwant Kaur. The notice to Rajwant Kaur related to some property, she had purchased independently. Another set of three notices, all dated 11.07.2011, were issued to the three daughters of Ranjeet Singh, to wit, the three legatees under the Will, under Section 10(2) of the Act, clubbing the entire holdings of Ranjeet Singh and Smt. Surjeet Kaur, bequeathed to her three granddaughters, proposing to declare a surplus. On the 9th of July, 2009 and 6th of October, 2009, objections were filed by both sets of tenure-holders, that is to say, Ranjeet Singh on one hand and the other by the three legatees. It appears that at the hearing of the matter before the Prescribed Authority, Ranjeet Singh alone produced evidence, but the legatees, after putting in their objections, did not participate. The Prescribed Authority, before whom the matter was registered as Case No.5 of 2008-09, proceeded to frame the following issues (translated into English from Hindi):
"1- Whether the land in dispute is irrigated, if yes, its effect?
2- Whether the deceased tenure-holder, Surjeet Kaur had bequeathed her holding on 14.07.2004 in favour of Smt. Gurjeet Kaur, Smt. Rajwant Kaur and Smt. Lakhvar Kaur, if yes, its effect?
3- Whether Smt. Gurjeet Kaur, Smt. Rajwant Kaur and Smt. Lakhvar Kaur are bhumidhar of the late Smt. Surjeet Kaur's holding on the basis of her will, if yes, its effect?
4- Whether the notice issued under the Ceiling Act is liable to be revoked, if yes, its effect?"
10. Issue No.1 was answered in the manner that the land in dispute is irrigated, holding in favour of the State. The second issue was also answered in favour of the State in the affirmative with the Prescribed Authority holding that the Will was executed on 14.07.2004, when the Act was in force w.e.f. 24.01.1971, which rendered the Will bad being in violation of the Act. It was further held that the testatrix, Smt. Surjeet Kaur had a son Ranjeet Singh and the fact that in his lifetime a Will was executed by Smt. Surjeet Kaur, would show that the testamentary disposition was one made in order to evade the consequences of 'ceiling' under the Act. The third issue was also decided in the State's favour, holding that the Will being one made on 14.07.2004, after the Act had come into effect on 24.01.1971, clearly showed that in the presence of Surjeet Kaur's son i.e. Ranjeet Singh, the testamentary disposition was made in order to escape the consequences of ceiling under the Act. Issue No.4 was also decided in the State's favour, holding that the entire land held by Ranjeet Singh, that is to say, his own together with that inherited from his mother, Smt. Surjeet Kaur, would add to a total area of 8.825 hectares irrigated land. Ranjeet Singh had the right to retain within ceiling limits under the Act up to a total area of 7.300 hectares with the area of 1.525 hectares being surplus land, which would vest in the State.
11. The Prescribed Authority, therefore, declared the following the land surplus in Ranjeet Singh's hands:
tenure-holder's name Village Gata No. Additional declared irrigated land Ranjeet Singh s/o Suvendra Singh Tondarpur Saharai, Pargana & District Pilibhit 73 1.339 hect. - Village Baharua 105 0.186 hect. - Village Tondarpur Saharai
12. Two appeals were carried from the order of the Prescribed Authority, impugned dated 16.09.2014 under Section 13 of the Act to the Commissioner of the Division. Appeal No. C20141200001222 was preferred by Ranjeet Singh whereas that preferred by the three legatees, Rajwant Kaur and others, was numbered as Appeal No. C20141200001239. An interim stay pending appeal was granted by the Additional Commissioner (Administration), Bareilly Division, Bareilly vide order dated 14.10.2014. Later on, the appeal was not decided for a long time and the interim order came to an end, threatening the petitioner's possession. Accordingly, the petitioner moved Writ-C No.22123 of 2021, where this Court, while disposing of the writ petition, directed expedited hearing of the petitioner's appeal by the Appellate Authority and further ordered that for a period of three months or till disposal of the appeal, whichever is earlier, the interim order granted on 13.10.2014 shall continue. The Additional Commissioner (Administration), Bareilly Division, Bareilly, before whom both the appeals came up for hearing on 19.05.2022, proceeded to dismiss the appeal and affirmed the Prescribed Authority.
13. Aggrieved, the petitioner has instituted the present writ petition under Article 226 of the Constitution.
14. On 05.07.2022, when this petition came up for admission, a notice of motion was issued and an interim injunction granted, directing parties to maintain status quo as on date as to title, nature and possession. The writ petition preferred by the legatees, by an order of the same date, was connected to the present writ petition, and an interim order passed in identical terms.
15. A counter affidavit was filed effectively on behalf of respondent No.2 on 29th November, 2022, to which a rejoinder was also filed. On 05.01.2024, when this writ petition came up for admission before the Court, the parties having exchanged affidavits, it was admitted to hearing, which proceeded forthwith. Judgment was reserved.
16. Heard Mr. Udit Chandra, learned Counsel for the petitioner and Mr. Kunal Ravi Singh, learned Chief Standing Counsel along with Ms. Monika Arya, learned Additional Chief Standing Counsel on behalf of the State.
17. Upon hearing learned Counsel for the parties, we are of opinion that the finding of the Authorities below that the Will was executed by Smt. Surjeet Kaur to escape the clutches of the Act, is entirely ill-founded. The land that Smt. Surjeet Kaur held or whatever was Ranjeet Singh's holding before Surjeet Kaur's demise, was apparently well within the ceiling. It would have been a device to escape clutches of the Act, if it was a case that the land in dispute in the hands of Ranjeet Singh and his mother was to be clubbed and regarded as one unit for the purpose of applying the prescribed ceiling under the Act. This is certainly not the case. Under Section 3(7) of the Act, 'family' is defined in the following terms:
"3. Definition.- In this Act, unless the context otherwise requires-
.......
(7) "family" in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separate wife or husband), minor sons and minor daughters (other than married daughters);
18. Likewise, under Section 3(17) of the Act, a 'tenure-holder' is defined as follows:
"(17) "tenure-holder" means a person who is the holder of a holding, but except in Chapter III does not include-
(a) a woman whose husband is a tenure-holder;
(b) a minor child whose father or mother is a tenure-holder;"
19. A conjoint reading of the definition of 'family' in reference to a tenure-holder and the definition of a 'tenure-holder' under Section 3(7) and 3(17) of the Act would spare little doubt that an adult son, as defined under Section 3(11-A) of the Act and a 'mother', both of whom are tenure-holders, would not constitute a family under Section 3(7). In this case, therefore, while Ranjeet Singh and his mother, Smt. Surjeet Kaur were alive, they were not a family for the purpose of application of ceiling to their holdings by clubbing them. Their holdings would have to be separately reckoned for the purpose of the Act and when so done, Ranjeet Singh had a total holding of 6.970 hectares whereas Surjeet Kaur had a holding of 1.855 hectares. Therefore, there is nothing to infer that during her lifetime, Smt. Surjeet Kaur, or her son, had any need or motive to escape the clutches of the Act by resort to a devise of Smt. Surjeet Kaur's agricultural holding in her granddaughters' favour.
20. It has also been emphasized during the hearing by Mr. Udit Chandra that there were no proceedings under the Act pending either against Smt. Surjeet Kaur or Ranjeet Singh at the time when she executed the Will in her granddaughters' favour. This also would show that the Will was not executed for any extraneous purpose, or so speak, escape clutches of the Act.
21. In support of the contention that an adult's son's holdings and those of his mother, who also is a tenure-holder, are not to be clubbed for the purpose of determining ceiling under the Act, reference may be made to State of U.P. v. Special Addl. Distt. & Sessions Judge, Farrukhabad and others, 1984 All LJ 560. The facts in Special Addl. Distt. & Sessions Judge, Farrukhabad (supra) can best be appreciated by a reference to paragraph No.5 of the report, where these have been succinctly set out in the following words:
"5. The controversy is a short one. Aditya Narain Singh's father Roop Singh was possessed of landed property including some Sir and Khudkasht. He died in 1950 leaving behind his son Aditya Narain and his widow Smt. Davendra Kumari, who is respondent No. 4 in this petition. A contention was raised before the Prescribed Authority that in the Sir and Khudkasht which was left by the late Sri Roop Singh, his widow Davendra Kumari had an equal share along with her son Aditya Narain Singh. This contention was based on Hindu Women's Right to Property Act, 1937 as amended by the U.P. Act No. 11 of 1942. This contention was rejected by the Prescribed Authority. But was accepted by the appellate court."
22. In answering the issue whether the property of an adult son and a mother could be clubbed together under the Act, in the aforesaid authority, it was held by M.P. Mehrotra, J.:
"6. Learned Chief Standing Counsel contended that the mother's share should have been clubbed with the share of her son Aditya Narain, who was treated as a tenure-holder. He invited my attention to the definition of 'family' in S. 3(7) and to the definition of 'tenure-holder' in S. 3(17) of the Act. In my view, this contention is not tenable. Learned counsel emphasized that in S. 3(17) the expression used in cl. (a) is 'woman' and not the 'wife'. In my view, this is really not decisive because the further phraseology used is "a woman whose husband is a tenure-holder". This makes it clear that by the expression 'woman' what is meant is the wife of the tenure-holder-husband. In S. 3(7) the definition of the family is such that the mother of a tenure-holder is not a member of the family. The clubbing which takes place under S. 5(3) of the Act is with reference to the family. Therefore, the contention that the mother's share also should have been clubbed with the tenure-holder sons' share is not acceptable. The appellate court's judgment, in my view, suffers from no error of law, much less an apparent error of law. There is no want of jurisdiction in the said judgment."
23. Special Addl. Distt. & Sessions Judge, Farrukhabad was followed by this Court in Gyanendra Kumar v. State of U.P. and others, 2007 (10) ADJ 279. These authorities clearly fortify the view that we have taken.
24. So far as the right of Smt. Surjeet Kaur to execute a Will in her granddaughters' favour is concerned, there was absolutely no restriction imposed by the Act forbearing her from doing so, inasmuch as her holding was well within the ceiling limit when she made the bequest.
25. The only other issue that survives for consideration is: If the will, that was executed by Smt. Surjeet Kaur in favour of her granddaughters, was valid in law, though unregistered? Prior to the amendment to Section 169 of the Act of 1950 by U.P. Act No.27 of 2004 w.e.f. 23.08.2004, all that was required by sub-Section (3) of Section 169 was that the Will 'be in writing', and 'attested by two persons'. There was no requirement of registration. This was brought about by U.P. Act No.27 of 2004. Now, the Will here is dated 14.07.2004, that is to say, well before 23.08.2004, when U.P. Act No.27 of 2004 made registration compulsory. To this Court's understanding, the Will when it was made was a valid document and within the powers of the testatrix to execute it. On the day it was executed, it did not require registration. The amendment is without cavil, prospective in operation and so far as the Will goes, it was a concluded document on the day it was executed. It was valid by the law as then in force.
26. The fact that it was a Will not a deed, and, therefore, of no value or even imbued with life so long as the author was living, would make no difference to the validity of the testament that would be galvanized to life after the testatrix's demise. The question if on the date the testatrix, as is the case here, died, U.P. Act No.27 of 2004 had come into operation, would be of no consequence to the validity of the will. There has been some confusion on the issue if a Will that was executed prior to the amendment by U.P. Act No.27 of 2004 without registration and perfectly valid, but by time succession opened out with the death of the testator, the requirement of registration had been introduced, would be valid or not. We do not think that by any principle a Will that was validly executed, would be rendered invalid for non-registration because succession opened out after the U.P. Act No.27 of 2004 had come into operation. The reason is that execution of a Will is one thing and opening out of succession completely different. As already said a Will is not a deed. It is a letter from the deceased that alters the mode of succession under the law. The law requiring execution of wills, in a particular mode, is about how that testament is to be executed. Once executed, it remains the way it has been made to be given effect to by the executors after the testator's demise. Of course, the testator may change his Will more than once every day, every hour, or as much frequently as he can withstand the ordeal. It is the last Will and testament, according to which succession would open out after the testator's demise. All that the law requires is that the Will or testament must be executed in accordance with law, whatever statute prescribes it. It is in that sense that this Court remarked that execution of a Will is quite different from the opening of rights under it. Section 169(3) of the Act of 1950 speaks only about the execution of the Will with an added requirement as to registration, which need not be there in case of other wills.
27. Therefore, if on the date when the Will here was executed, the provisions of Section 169(3) as these then stood did not require registration, it does not matter at all that when succession actually opened out, registration had become imperative. We are of opinion that the remarks of Sunita Agarwal, J. in Jahan Singh v. State of U.P. and others, 2017 SCC OnLine All 3368 in paragraph Nos.26, 27 and 28 of the report, when read as a whole, do not at all intend to say that a Will validly executed before the Amending Act came into force, would become invalid, if on the date succession opened out, the amendment requiring registration had come into force. There is no doubt some confusion because of the observations in paragraph No.27, but that is amply clarified by the remarks in paragraph No.26 and the last sentence in paragraph No.27, which says that in case of non-registration, "genuineness of the Will, therefore, becomes doubtful". If the learned Judge had intended to say that an unregistered Will executed before the enforcement of U.P. Act No.27 of 2004, where succession opened out, after the amendment would be invalid for want of registration, it would not have been remarked that the genuineness of the Will is doubtful. Genuineness relates to probity of the document and not its admissibility for want of registration.
28. The question of the amendment being prospective or retrospective, in any case, has now become an academic issue, because a Division Bench of this Court in Pramila Tiwari v. Anil Kumar Mishra and others, 2024 SCC OnLine All 1588 has held it void. The provisions of sub-Section (3) of Section 169 of the Act of 1950, to the extent that these provide for compulsory registration of a will, have been declared ultra vires and void in Pramila Tiwari (supra) in terms of the following order:
"36. In view of the above exposition of law and in view of what we have discussed above in this judgment, we hold sub-Section (3) of Section 169 of Act of 1950, in so far as it requires a Will to be compulsorily registered, to be repugnant to Section 17 read with Section 40 of the Indian Registration Act, 1908 and hence we hold the amendment of Section 169(3) of the U.P.Z.A.L.R. Act to that extent void.
37. Thus, our answer, to the question framed, is that sub-Section (3) of Section 169 having been declared as void to the extent it provides for registration of Will, the Wills in State of Uttar Pradesh are not required to be registered and a Will for its non registration will not be void whether before or after the U.P. Amendment Act, 2004."
29. Thus, the provision of sub-Section (3) of Section 169 of the Act, providing for the compulsorily registration of a Will relating to agricultural tenure, stands erased from the statute book and regarded never to have been enacted. Therefore, reliance placed by the Authorities below upon provisions of sub-Section (3) of Section 169 requiring compulsory registration of the Will executed by Smt. Surjeet Kaur, and on that basis, holding her property to be inherited by her son, Ranjeet Singh and not the legatees under the will, to wit, her granddaughters, has to be held manifestly illegal. The Will has not been regarded by any one not duly proved nor any one has raised the issue. Therefore, in terms of Smt. Surjeet Kaur's will, her holdings must be held to have passed on to her granddaughters, to wit, Smt. Gurjeet Kaur, Smt. Rajwant Kaur and Smt. Lakhvar Kaur. If the holdings of Smt. Surjeet Kaur have passed on to the legatees under her Will and not to her son Ranjeet Singh by succession, as held by the Authorities below, Ranjeet Singh, would have his holdings well within the ceiling limit of 7.300 hectares, assuming that all of it is irrigated land. The inescapable consequence, therefore, is that the impugned orders cannot be sustained and must be quashed.
30. In the result, both the writ petitions succeed and are allowed. The impugned orders dated 16.09.2014 passed by the Prescribed Authority-Ceiling/ Additional Collector (Finance and Revenue), Pilibhit and the order dated 19.05.2022 passed by the Additional Commissioner (Administration), Bareilly Division, Bareilly are hereby quashed.
31. Costs easy.
Order Date :- 01.07.2024 Anoop (J.J. Munir, J.)