Allahabad High Court
State Of U.P. Thru Collector vs Radha Charan Since Deceased And Another on 11 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:139250 A.F.R Reserved on 13.04.2023 Delivered on 11.07.2023. Court No. - 81 Case :- WRIT - C No. - 40939 of 2004 Petitioner :- State Of U.P. Thru Collector Respondent :- Radha Charan Since Deceased And Another Counsel for Petitioner :- S.C. Counsel for Respondent :- S.C.,Indra Pal Singh Rajpoot Hon'ble Umesh Chandra Sharma, J.
1. Heard Sri Naresh Chandra Pal, Advocate, holding brief of Sri Indra Pal Singh Rajpoot and learned Standing Counsel for the State and perused material available on record.
2. This writ petition has been filed under Article 226 of the Constitution of India to issue a writ, order or direction in the nature of certiorari for quashing the impugned judgment and order dated 29.04.2004 passed by Additional Commissioner, Chitrakoot Dhaam Division, Banda.
3. In brief, fact of the case are that a notice was issued to late Radha Charan (Deceased) Resident of Village Chilli Pargana and Tehsil Rath, District Banda, under Section 10 (2) of the Imposition of Ceiling on Land Holdings Act, for filing objection on the basis that there is Rakba 26.97 Acre surplus irrigated land, which has to be forfeited in favour of the State. As per notice maximum useful area is 24.00 Acre and after service of notice Radha Charan filed an objection that the land of the objector is un-irrigated land and it has wrongly been shown to be irrigated land. He further mentioned that from his wife Suhag Rani, out of wedlock Ram Pal Singh and Madan Pal Singh were born, who were living separately. Since the time of their mother, for their livelihood 20.00 acre of the land was given to them as their share of which they are in possession and are cultivating the same. When the children were not satisfied they got the land transferred by way of gift-deed from the objector since before 24.01.1971, therefore, this land should not be added in the account of the objector. Both the sons are adult and the transfer in favour of the sons is legal and valid.
4. After several years from the death of Smt. Suhag Rani, the objector solemnised another marriage with Smt. Girja Rani and with whom he had two children, Km. Saroj and Jai Singh, thus the family of the objector consists of husband and wife and two minor children. Arazi Nos. 644, 645 & 1694 are in possession and holding of the objector and it has been wrongly included in the possession of Mohan Lal, Murlidhar, Swami and Channni and another. Their name has wrongly been mentioned and they are not in possession. Usar and grove land has wrongly been shown as Majrua land. It has also been mentioned that in the order dated 09th January, 1975, the Prescribed Authority has accepted the existence of adult sons and 9.02 acre un-irrigated land has been shown as surplus land and the question regarding this point cannot be raised again. Only the land in the name of the applicant can be considered.
5. Madan Pal Singh and Ram Pal Singh, have filed an objection on the similar in nature and Bhurjai, Khamodeen, Channo, Mohan Lal and Mataiyya have filed separate objection which is similar to para 9 of the objection of the tenure holder.
6. Issues were framed and the evidences were recorded and on 22.06.1976. Mool Chandra Yadav, the Prescribed Authority, Ceiling, Rath, Hamirpur held that 17.40 Acre normal or 8.16 Acre irrigated land is surplus land. Prior to that on 09.01.1975 Sri C.L. Verma, Prescribed Authority, Rath, District Hamirpur passed judgment and order dated 09.01.1975 and held that 9.02 Acre un-irrigated land of the tenure holder Radha Charan is surplus land for the purposes of Ceiling Act.
7. The order dated 22.06.1976 passed by the Prescribed Authority was challenged in the Court of District Judge, Hamirpur, which was decided on 23.12.1976 by III Additional District Judge in Appeal No. 01 of 1976, which was challenged by the Tenure Holder in Civil Misc. Writ Petition No. 925 of 1977 - Radha Charan Vs. State of U.P & Ors. Which was decided on 08th November, 1978.
8. The petition was partly allowed and the order dated 23.12.1976 passed by III Additional District Judge, Hamirpur was set aside and he was directed to rehear the appeal on the second point mentioned in the judgement of the High Court and it was directed to pass afresh order. Thereafter, the case was decided. After amendment in the Act on 24.03.1988, the Commissioner Jhansi Division, Jhansi decided the appeal against the petitioner, which was challenged in the High Court by filing Civil Misc. Writ Petition No. 9597 of 1988, which was decided on 14.09.1994 and the Additional Commissioner, Jhansi - Respondent no. 2 was directed to decide the appeal afresh in accordance with law.
9. In compliance of the above order, the appeal was decided by Sri Usha Raman, Additional Commissioer, Chitrakoot Dhaam Mandal, Banda on 29th April, 2004 and the appeal was allowed.
Being aggrieved, by the order of the appellate court dated 29th April, 2004, the State of U.P. has filed this petition for quashment of impugned order dated 29.04.2004 (annexure no. 1) passed by the Additional Commissioner, Chitrakoot Dhaam Bhana.
10. In this appeal, the State of U.P. averts that this writ petition has been filed against the judgement and order dated 29.04.2004 passed by Additional Commissioner, Chitrakoot Dhaam Mandal, Banda, Ceiling Appeal No. 803 of 1976, 04 of 1985-86 and 06 of 2003-04 Radha Charan (Deceased) Madan Pal and another Vs. State of U.P, the grievance is that the appellate authority has allowed the appeal and sent the file to the Prescribed Authority have passed orders after excluding land covered by gift deed to the extent of 20.26 Acre from the holding of Radha Charan. The judgment and order 29.04.2004 has been annexed as Annexure No. 1 to the petition.
11. A notice under Section 10 (2) of the Ceiling Act was issued against Radha Charan the original tenure holder proposing 09.02 Acre of land to be declared surplus, who filed objection claiming that his one of the son was major and his family contains of seven members and the notice was not prepared correctly. The Prescribed Authority on 09.01.1975 declared 9.02 Acre unirrigated land situated in Tehsil Rath, Hamirpur to be surplus, which is annexed as Annexure No. 2 to the petition.
12. Thereafter the U.P Imposition of Ceiling on the Land Holdings Act, 1960 was amended and explanation was added to Section 5 of the Act alongwith Section 38-A of the Act. Under the amended provisions, the Prescribed Authority issued afresh notice to the tenure holder Radha Charan including the land of Plot Nos. 812, 813 and 816 etc. total area 20.26 acres, which was gifted to Radha Charan's son (minor) on 16.04.1969.
13. Radha Charan filed objection against the second notice mainly on the ground that both the donees Madan Pal Singh Ram Pal Singh, were living separately alongwith their mother of the deceased and the gifted land was not given to him. Hence, the same cannot be made subject matter of the proceedings initiated against him.
14. The Prescribed Authority after considering the entire evidence, declared 17.40 acers equivalent to 8.16 acres, land to be surplus land, copy of the order dated 22.06.1976 annexed as Annexure No. 03 to the petition. The said order was challenged before the District Judge, Hamirpur, which was dismissed vide order dated 23.12.1976, which was challenged in Writ Petition No. 925 of 1977, which was partly allowed by the Hon'ble High Court vide judgement and order dated 08.11.1978, which is annexed to the petition as annexure no. 4. The appeal was remanded and after the remand, the same was again dismissed vide order dated 24.03.1988, which is annexed as Annexure No. 5 to the petition.
15. The order dated 24.03.1988 was again challenged in writ petition no. 9597 of 1996, which was allowed by this Hon'ble High Court vide judgment and order dated 14.09.1994, remanding the appeal for reconsideration in light of observations made in the order, which is annexed as Annexure No. 6 to the writ petition.
16. In pursuant to the order dated 14.09.1994, the appellate authority decided the appeal committing error in accepting the gift deed dated 19.04.1969 by Radha Charan in favour of his minor sons namely Ram Pal Singh and Madan Pal Singh, copy of gift deed is annexed as Annexure No. 7 to the writ petition. On the date of execution of gift-deed, Madan Pal Singh was about 14 years of age whereas Ram Pal Singh was hardly six years old and none of them was major. Therefore they were not entitled to give gift deed made in their favour and the land held by them in there own name was liable to be club together with the land of his father, who was the original tenure holder and the same was rightly included in the notice.
17. There is also evidence that Radha Charan was in possession over the land covered by the Gift Deed on the relevant date. Therefore the exclusion of the land was not permissible.
18. In this case the main question is as to whether the registered gift-deed dated 16.04.1979 prior to the date of 24th January, 1971 in favour of sons Madan Pal Singh aged about 14 years and Ram Pal Singh @ Ram Singh aged about six years through their guardian Smt. Suhagrani wife of the donor Radha Charan is valid or not. In this regard the learned appellate court has given finding that by way of the aforesaid gift deed, the donor tenure holder Radha Charan had gifted an area of 20.26 acre of land to his sons under the guardianship of their mother Suhag Rani. There is also an averment of delivery of possession. The gift deed is registered on which basis the name of the donees had been mutated.
19. The learned appellate court has also considered the circumstances that Radha Charan had solemnised another marriage. The donees were his sons from the first wife whom he transferred the property in their mother's guardianship, hence the gift deed appears to be a natural human conduct and transaction.
20. It is noteworthy that contrary to that nothing could be proved from the side of the State. In this regard provisions of Section 122 and Section 123 of The Transfer of Property Act, 1882, are relevant, which are reproduced here-in-below :-
Section 122 and Section 123 The Transfer of Property Act, 1882.
122. "Gift" defined.--"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.-- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
123. Transfer how effected --- For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses."
On the basis of the above definition, essential elements of a gift are :-
(a). the absence of consideration;
(b). the donor;
(c) the donee;
(d) to be voluntary;
(e) the subject-matter;
(f) the transfer; and
(g) the acceptance.
21. In this case no consideration has been taken by the donor. The donor was a legally competent person. Though, the donees were minor, but they had accepted the gift through their mother, who was competent to accept the gift on behalf of her sons. It has been proved that the gift deed had been executed voluntarily without any coercion, undue influence, misrepresentation or fraud and the deed is not barred by any law. The owner of the subject matter was alive and the property-in-question was into existence, there are several modes of transfer and the property-in-question has been transferred by way of gift and the mother of both the donees had accepted the gift deed on behalf of the sons. There is recital of delivery of possession. Even the property-in-question had been mutated in the name of donees and during the life time of donor, the donees attained the age of majority and they also accepted the gift deed and are behaving with the property in question as Bhumidhar with transferable rights. Thus all the element of a gift of a valid gift is complete.
22. From the perusal of last line of Section 122, it is very much clear that a gift can be accepted by or on behalf of the donees and it is very much mentioned in the gift deed that the gift deed was executed in favour of the minor sons through their mother Smt. Suhag Rani. Thus, it cannot be said that the gift deed has not been accepted in accordance with law. The donor never claimed this property in future, he had not taken any legal action to cancel the aforesaid gift deed. He had not filed any objection regarding mutation on the names of the donees, though the donees were minor, but a gift can be made in favour of a minor.
In page 1257 (4) of 10th Edition of Mulla, the Transfer of Property Act, it is mentioned that :-
"The donee is the person who accepts the gift. A gift may be accepted by, or on behalf of a person who is not competent to contract. A minor may, therefore be a donee; but if the gift is onerous, the obligation cannot be enforced against him while he is minor. But when he attains majority he must either accept the burden, or return the gift.
The word 'accepted by or on behalf of the donee' show that the donee may be a person unable to express acceptance. A gift can be made to a child en ventre sa mere, and could be accepted on its behalf."
The reference of column no. 7 at page no. 1259 of the same book, is also relevant, which is reproduced here-in-below:
"7 - Acceptance In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of acceptance is required, and the circumstances throw light on that aspect. A transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. Factum of acceptance can be established by different circumstances such as donee taking a property, or being in possession of deed of gift alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the donor which he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that possession is given, raises a presumption of acceptance. However, once it is found that the gift was accepted and the truth of the contents of the gift deed was admitted, clinching evidence is required to establish that the donor still retained possession with him, and the document was not acted upon."
23. In Sakuntala Devi Vs. Amar Devi A.I.R 1985 H.P. Page 111, it has been held that the acceptance may be inferred.
24. In Gauranga Sahu and Ors. Vs. Maguni Dev & Ors. A.I.R 1991 Orrisa 151, page 155. It has been held that oral evidence can be looked into for finding out whether the gift had, in fact, been acted upon.
25. In this case, it has been said by the donor through objection/counter affidavit that he delivered the possession to the donees and he had gifted the property in love and affection to his sons.
26. In Sanjukta Ray Vs. Bimelendu Mohanty A.I.R. 1997 Orrissa 131, it has been held that where there is a specific recital in the gift-deed that possession has been handed over to the donee, a presumption arises that possession has been handed over to the donees.
27. In Kamakshi Ammal Vs. Rajalakshmi A.I.R 1995 Madras 415, it has been held that where a father made a gift to his daughter and on its acceptance by her, she allows her father to enjoy the income from the properties settled in view of the relationship of father and daughter between he donor and donee, it could not be said that there was no acceptance of gift by the donee even assuming that the donor continued to be in possession and enjoyment of the property gifted. Delivery of possession of the gifted property is not absolute requirement, for the completeness or the validity of the gift as found in Muslim law of gifts.
28. In K. Balakrishnan Vs. K. Kamalam A.I.R. 2004 S.C. 1257, it has been held that a minor may accept benefit, although he cannot incur an obligation. Where a gift is made in favour of a child of the donor, who is the guardian of the child, the acceptance of gift can be presumed to have been made by him, or on his behalf without any overt act signifying acceptance by the minor.
29. In Ashkar Singh & Another Vs. Rawal Singh & Another, A.I.R 1952 P & H 148, P. 150, it has been held that a minor's guardian may accept a gift deed for him. Gift would be complete where the guardian accepts the gift on behalf of the minors and in token of acceptance, appends his thumb impression on the gift deed. Similar views has been propounded by P & H High Court in Balwant Singh Vs. Chatin Singh A.I.R 1985 P & H 74.
30. Under Section 152 of the U.P.Z.A & L.R Act, 1950, there is provision of transfer of Bhumidhari interest. Radha Charan was the Bhumidhar, who transferred his right, title and interest of 20.26 acre of agricultural land through gift deed dated 21.04.1969, to his minor sons.
31. The relevant portion of Section 152 of U.P. Zamindari Abolition and Land Reforms Act, 1950 is as under : -
"152. Bhumidhari interest when transferable. --- (1) The interest of a bhumidhar with transferable rights shall subject to the conditions hereinafter contained, be transferable.
(2). Except otherwise expressly permitted by this Act or any other law for the time being in force, the interest of a bhumidhar with non-transferable rights shall not be transferable.
(3) A bhumidhar referred to in sub-section (2) may, in such circumstances as may be prescribed, mortgage, without possession his interest in his holding, as security for a loan taken from the State Government by way of taqavi, or from a co-operative 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 way of gift, the interest in his holding, expect the part thereof which has been so mortgaged, to a recognised educational institution for any purpose connected with instructions in agriculture, horticulture and animal husbandry."
32. Thus, from the above citation, it is again made clear that a Bhumidhar with transferable rights can transfer his right, title and interest of any agricultural land 'by way of gift' which Radha Charan had adopted. Thus the alleged gift deed is also in accordance with the land laws.
33. On the basis of above discussion, this Court is of the considered view that the impugned judgment and order of the learned appellate court is legal and valid and is not liable to be interfered with.
34. The petition lacks merit and is liable to be dismissed.
35. The petition is accordingly dismissed and the order of learned appellate court dated 29.04.2004 passed by the Additional Commissioner Chitrakoot Dhaam, Banda Division Banda, is hereby confirmed.
Order Date :- 11.07.2023.
Vinod.