Allahabad High Court
State Of U.P. vs Kailash Nath And Others on 4 April, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No.20 Case :- WRIT - C No. - 3001168 of 1980 Petitioner :- State of U.P. Respondent :- Kailash Nath And Others Counsel for Petitioner :- C.S.C. Counsel for Respondent :- B.R. Tripathi,Rajeiu Kumar Tripathi Hon'ble Jaspreet Singh, J.
C. M. Applications No.5 and 6 of 2022 The instant two applications have been moved by the petitioner to bring on record the heirs of deceased respondent no.2 Dinanath who is reported to have died on 20.10.2017. The record indicates that the notices were issued to the proposed legal heirs of the deceased. In furtherance whereof Shri Rajeiur Kumar Tripathi, learned counsel has filed his Vakalatnama.
Considering the aforesaid facts and the ground shown in the application which is found sufficient, accordingly, the applications are allowed. Learned Additional Chief Standing Counsel shall carry out the necessary amendment during the course of the day.
Heard Shri G. K. Pathak, learned Additional Chief Standing Counsel for the State-petitioner and Shri Rejeiu Kumar Tripathi, learned counsel appearing for private respondents on merits.
By means of the instant petition preferred under Article 226 of the Constitution of India, the State challenges the judgment and order dated 27.11.1979 passed by the District Judge in Ceiling Appeal No.148 of 1979 whereby the appeal of the private respondents was allowed and the order dated 26.03.1979 passed by the Prescribed Authority Qaisarganj District Bahraich declaring 71.373 acres of land belonging to the tenure holder Dinanath as surplus was set aside.
It will be relevant to mention that the appeal before the Appellate Court was filed by Kailashnath and Moolchand who are the sons of Dinanath and have been impleaded as private respondents no.1 and 2. During pendency of the proceedings, Kailashnath and Moolchand both have died and their legal heirs are on record represented by Shri Rajeiu Kumar Tripathi.
Briefly the facts giving rise to the instant petition are that upon the commencement of U.P. Imposition of Ceiling on Land Holdings Act, 1960 initial notice under Section 10(2) of the said Act was issued to Dinanath son of Ram Bihari. The Prescribed Authority under the Ceiling Act by means of an ex parte order dated 20.06.1974 confirmed the ceiling notice issued to Dinanath. An application was moved by Dinanath for recall of the ex parte order. During aforesaid pendency, it was also noticed that another tenure holder namely Yashodra had expired on 24.06.1973 and her land also was clubbed with that of Dinanath. Accordingly, revised notice was sent to Dinanath indicating that the land of Yashodra was also be clubbed with that of Dinanath.
Dinanath filed his objection wherein he challenged that the land belonging to Yashodra had been incorrectly clubbed with his holding on the ground that Yashodra had already an adopted son Ramji alias Lallu and he being her legal heir would inherit the share of Yashodra and the same could not be clubbed in the hands of Dinanath.
The objections were filed by Ramji alias Lallu through his natural father claiming rights over the land and also to the effect that the holding ought not to be included with that of Dinanath.
Before the said proceedings could be finalized, another tenure holder namely Smt. Kunta wife of Pratap Narain died. Another notice was issued to Dinanath for including her land of 15.279 acres with the holding of Dinanath. Separate objections were filed by Kailashnath son of Dinanath claiming that Smt. Kunta had executed her Will in favour of Kailashnath and Moolchand and as such they are in cultivatory possession, hence the said land could not be included or clubbed with that of Dinanath.
Another issue that cropped up was that some land was sold by Dinanath to one Sundar Lal and this land was also included in the holdings of Dinanath.
The Prescribed Authority, considering the objections and after permitting the parties to lead evidence, by means of order dated 26.03.1979 negatived the contentions of the tenure holder and confirmed the notice under Section 10(2) of the Ceiling Act and declared 71.373 acres of irrigated land as surplus.
An appeal came to be filed by Kailashnath and Moolchand and the said appeal has been allowed by means of judgment dated 27.11.1979 by the District Judge Bahraich in Ceiling Appeal No.148 of 1979 and the notice under Section 10(2) of the Ceiling Act was cancelled and this judgment dated 27.11.1979 is under challenge in this petition.
The Additional Chief Standing Counsel while assailing the impugned appellate order has raised the following contentions:-
(I) It is urged that once the Prescribed Authority after considering the relevant and detailed evidence recorded findings to the effect that the alleged Will by which the land of Kunta was included in the hands of Dinanath being a transaction hit by Section 5(6) of the Ceiling Act it has been reversed on an incorrect notion of law and moreover without even considering any evidence in respect thereto and in a cursory manner.
(II) It is also urged that the findings returned by the Prescribed Authority which categorically held that the alleged adoption said to have been made by Yashodra of Ramji alias Lallu was also not a bonafide transaction and by taking notice of the evidence including that of the witnesses, it was held that the said adoption deed was not for a bonafide reason and even evidence on this issue has not been discussed but ignored by the Appellate Court and the findings have been reversed on mere surmises and conjunctures.
(III) It is also urged that the transaction regarding the sale deed said to have been executed by Dinanath in favour of Sundar Lal was also held to be not bonafide for the reason that the said tenure holder in whose favour the said sale deed was executed did no come forward to raise any objection. The proceedings went on for the number of years but even till date, Sunder Lal or his successor have not come forward which all clearly indicates that the said sale transaction was bad in the eyes of law nor there was any material to substantiate the same and in absence of any cogent material and evidence led by the tenure holder to indicate that the aforesaid three transactions were bonafide. The findings of the Prescribed Authority could not have been reversed and that too in a cursory manner without considering the evidence led before the Prescribed Authority nor any reason have been given why the findings of the Prescribed Authority were bad.
(IV) The next submission of the learned Additional Standing Counsel for the State is that Section 5 of Ceiling Act clearly lays down the manner in which the authorities have to consider how the land is to be declared as surplus. What transactions have to be excluded and the procedural aspect is contained in Sections 37 and 38 which confers power on the Prescribed Authority to take evidence and the Appellate Authority is also to decide the appeal in accordance with the provisions contained in the Code of Civil Procedure. This necessarily implied that the evidence which was valid and admissible in law is to be considered and the Appellate Authority while dealing with an appeal is required to adhere to the broad mandate of Order 41 Rule 31 CPC that is to say that the reasons must be given and while reversing the findings recorded by the Prescribed Authority, it was incumbent upon the Appellate Court to have met with the reasons recorded by the Prescribed Authority and only after noticing the error could it record its own findings based on admissible and cogent evidence with reasons.
It is urged that from the perusal of the impugned judgment, it would indicate that the Appellate Court has merely recorded its conclusion but it is absolutely silent on the evidence available before the Prescribed Authority and how the conclusion of the Prescribed Authority based on such evidence was erroneous. The Appellate Court did not deal with the evidence or reason given by the Prescribed Authority in appeal and the Appellate Court has merely recorded its own finding conclusions without reversing the findings of the Prescribed Authority which has rendered the judgment passed by the Appellate Court bad in the eyes of law and deserves to be set aside.
Shri Rajeiu Kumar Tripathi, learned counsel for the private respondent submits that in so far as the land of Yashodra which has been included with the holding of Dinanath is concerned, the same was erroneous for the reason that Yashodra had adopted Ramji alias Lallu and the adoption deed was placed on record. In light of the adoption deed, the land would vest with her son and could not be clubbed in the hands of Dinanath and therefore the findings recorded by the Appellate Authority to the aforesaid extent, cannot be doubted or be termed to be erroneous.
It is also urged that as far as the Will of Smt. Kunta in favour of Kailashnath and Moolchand is concerned, the same is not hit by the transaction as mentioned in Section 5(6) of the Ceiling Act which has been recorded by the Appellate Court, hence the said finding also does not suffer from any error.
It is urged that it is only a transfer which is susceptible to be seen in terms of Section 5(6) of the Ceiling Act but as the Will is a testamentary document which disposes the property in accordance with the wish of the testator, it is not included in the said section, hence the findings of the Appellate Authority cannot be faulted on that count. In support of his contention on this point he relies upon a discussion of this Court in Mulk Nath Singh Vs. State of U.P. and others passed in Writ-C No.3000002 of 1996 decided on 13.10.2022.
It is further urged that in so far as the issue regarding sale deed executed by Dinanath in favour of Sundar Lal is concerned, the same was prior to 24.01.1971 i.e. the cut off date hence the same was protected and the said land could not be clubbed in the hands of Dinanath even though the tenure holder namely Sundar Lal did not appear before the Prescribed Authority to file any objections nor he preferred an appeal. For the aforesaid reasons, it is urged that the impugned order passed by the Appellate Authority is based on the sound reasoning and is not liable to be interfered with, consequently the writ petition be dismissed.
The Court has considered the rival submissions and also perused the material on record.
At the outset, it may be noticed that Sections 37 and 38 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 clearly makes provisions of the CPC applicable by reference. The aforesaid sections read as under:-
"37. Powers of officers and authorities in hearing and disposal of objections and procedure to be followed- Any officer or authority holding an enquiry or hearing an objection under this Act, shall, insofar as it may be applicable, have all the powers and privileges of a Civil Court, and follow the procedure laid down in the Code of Civil Procedure, 1908, for the trial and disposal of suits relating to immovable property.
38. Powers of the appellate Court and the procedure to be followed by it- (1) In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a Civil Court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure, 1908.
(2) Where, under the provisions of this Act, an appeal has to be heard by the [Commissioner], he may either hear the appeal himself or transfer it for hearing to any[Additional Commissioner] subordinate to him.
In view of the aforesaid, it will be relevant to notice that the Appellate Authority was obliged to have considered the appeal in the manner as provided under the Code of Civil Procedure. It will be appropriate to notice Order 41 Rule 31 CPC which reads as under:-
"31. Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
In this context, since the Appellate Authority is exercising powers of the First Appellate Court it was incumbent upon the said court to have considered the various contentions, the evidence on record and then gone on to record its conclusion. In this regard the decision of the Apex Court in the case of Sudarsan Puhan Vs. Jayanta Ku. Mohanty and others reported in (2018) 10 SCC page 552 will be gainful to notice and the relevant portion reads as under:-
"23. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal.
24. We consider it apposite to refer to some of the decisions.
25. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188189) as under:
"15...The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court......while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it"
26. The above view was followed by a three Judge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
27. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at p. 244) stated as under: (SCC para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
28. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code, this Court (at pp. 30304) observed as follows: (SCC para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion."
29. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this court reiterated the aforementioned principle with these words:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
30. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and Uttar Pradesh State Road Transport Corporation vs. Mamta & Ors. (2016) 4 SCC 172."
From the above, it would be clear, as to how the First Appellate Court must exercise its jurisdiction. However, unfortunately from the perusal of the impugned judgment passed by the Appellate Court dated 27.11.1979 this Court finds that the same is wanting in many material aspects of meeting with the reasons of the trial court, assigning its own reasons and reversing the findings.
Even the counsel for the private respondent could not dispute the fact that neither the evidence led before the Prescribed Authority was noticed nor the findings recorded by the Prescribed Authority have been touched or noticed and reversed. Thus to the aforesaid extent, the submission of the counsel for the petitioner has force and this Court finds itself in agreement with it.
Now considering the submissions raised by the respective parties on merits of the controversy, this Court finds that the findings recorded by the First Appellate Court that a Will of Smt. Kunta not being a transfer is not covered under Section 5(6) of the Ceiling Act and the said view is defended by the counsel for the respondent by relying upon a decision of a Co-ordinate Bench of this Court in Mulk Nath Singh (supra) wherein the Co-ordinate Bench has relied upon the decision of the Apex Court in the case of Rathinam @ Kuppamuthu and others Vs. L. S. Mariappan and others [(2007) 6 SCC 724], while coming to its conclusion holding that a Will is not a transfer.
In this regard, Section 5(6) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 and the explanation appended thereto will be relevant to be noticed and which reads as under:-
"[5. Imposition of Ceiling.-(1) [On and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972], no tenure-holder shall be entitled to hold in the aggregate through-out Uttar Pradesh, any land in excess of the ceiling area applicable to him.
[Explanation I.-In determining the ceiling area applicable to a tenure-holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account.] Explanation II.-[If on or before January 24,1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date] either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person.] (2) Nothing in sub-section (1), shall apply to land held by the following classes of persons namely-
(a) the Central Government, the State Government or any Local Authority or a Government Company or a Corporation;
(b) a University;
(c) [an intermediate or degree college imparting education in agriculture or a post-graduate college;];
(d) a banking company or a co-operative bank or a co-operative land development bank;
(e) the Bhoodan Yagna Committee constituted under the U.P. Bhoodan Yagna Act, 1952.
(3) [Subject to the provisions of sub-sections (4), (5), (6) and (7)] the ceiling area for purposes of sub-section (1) shall be-
(a) in the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of his adult sons, who are either not themselves tenure-holders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land;
(b) in the case of a tenure-holder having family of more than five members, 7.30 hectares of irrigated land (including land held by other members of his family), besides, each of the members exceeding five and for each of his adult sons who are not themselves tenure-holders or who hold less than two hectares of irrigated land, two additional hectares of irrigated land or such additional land which together with the land held by such adult son aggregates to two hectares, subject to a maximum of six hectares of such additional land;
Explanation.-The expression 'adult son' in clauses (a) and (b) includes an adult son who is dead and has left surviving behind him minor sons or minor daughters (other than married daughters) who are not themselves tenure-holders or who hold land less than two hectares of irrigated land;
(c) [x x x]
(d) [x x x]
(e) in the case of any other tenure-holder, 7.30 hectares of irrigated land;
Explanation.-Any transfer or partition of land which is liable to be ignored under sub-sections (6) and (7) shall be ignored also-
(f) for purposes of determining whether an adult son of a tenure-holder is himself a tenure-holder within the meaning of [clause (a) or clause (b)];
(g) for purposes of service of notice under Section 9.
(4) Where any holding is held by a firm or co-operative society or association of persons (whether incorporated or not, but not including a public company), its members (whether called partners, share-holders or by any other name) shall, for purposes of this Act, be deemed to hold that holding in proportion to their respective shares in that firm, co-operative society or other society or association of persons:
[Provided that where a person immediately before his admission to the firm, co-operative society, or other society or association of persons, held no land or an area of land less than the area proportionate to his aforesaid share then he shall be deemed to hold no share, or as the case may be, only the lesser area in that holding, and the entire or the remaining area of the holding, as the case may be, shall be deemed to be held by the remaining members in proportion to their respective shares in the firm, co-operative society or other society or association of persons.] (5) In respect of any holding held by any private trust,-
(a) where the shares of its beneficiaries in the income from such trust are known or determinable, the beneficiaries shall, for purposes of this Act, be deemed to have the shares in that holding in the same proportions as their respective shares in the income from such trust,
(b) in any other case, it shall be governed by [clause (e)] of subsection (3).
(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 of 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."
From the above, it would indicate that it uses the terminology to include not mere simplicitor transfer but other deed or instrument or in any other manner. Considering this aspect the Apex Court in 1996 (27) ALR page 445 State of U.P. Vs. Bankey Singh and others has held as under:-
".....The only question in this case is : whether the respondents would get benefit of 1/4th share in the surplus land declared by the competent authority? On September 8, 1982, Krishan Pal Singh filed objection, who claimed land of Khat Nos.340, 341 and Khata No.33 of village Nawada and Khata No.77 of Village Jamla Jot on the basis of a Will executed by Smt. Gajraji. On that basis, the said land is required to be excluded from the surplus land. The primary authority had rejected the claim by proceedings dated July 30, 1983 and on appeal the District Judge allowed the appeal by order dated November 9, 1983 and excluded 1/4th of the land held by Gajraji on the basis of the Will dated September 2, 1978. When it was questioned, the High Court dismissed Writ Petition No.1731/84. Hence, this appeal by special leave.
Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act No.1 of 1961) (for short, 'the Act') in Chapter II imposes ceiling on land holdings. Certain exemption mentioned in the Article gets excluded from surplus land. Section 5 postulates that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him.
Sub-section (6) postulates determination of the ceiling area applicable to a tenure-holder. It provides that any transfer of land made after the 24th 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. Explanation-1 provides that for the purpose of this sub-section the expression transfer of land made after the twenty-fourth day of January, 1971 includes, among other things, an 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, shall be construed to be a transfer for the purpose of sub-section (6).
Admittedly, the Will was executed on February 10, 1978 long after the specified date. By the Will a devise was made by Gajraji, owner of the land bequeathing her 1/4th share in favour of her brother's grand-son, Krishan Pratap Singh. Therefore, it must be construed to be a devise "in any other manner" within the meaning of Explanation 1(b) of sub-section (6) of the Act. It shall be ignored for the purpose of determination of the surplus land. The High Court and the appellate authority, therefore, were not right in directing to exclude the said land.
The appeal is accordingly allowed. No costs."
In light of the aforesaid clear authority of the Apex Court which is in context with the provisions of the Ceiling Act, this Court finds that the decision cited by the counsel for the respondent and placing reliance on the Co-ordinate Bench decision of Mulk Nath Singh (supra) would be per incuriam for the reason it does not take note of the decision of the Apex Court in Bankey Singh (supra). Moreover, the decision of the Apex Court which has been relied upon in the case of Mulk Nath Singh (supra) namely that of S. Rathinam @ Kuppamuthu (supra) is not in context with the ceiling proceedings rather the said decision was in context with the general law where Will was held to be not a case of transfer. However, in the instant case since the proceedings arise out of a Special Act where special provisions have been incorporated and the same has been interpreted by the Apex Court in the case of Bankey Singh (supra), accordingly in the humble opinion of this court, the decision of Bankey Singh (supra) would be a binding authority and for the aforesaid reason, the Court is not inclined to accept the contention of the counsel for the respondent and follow the decision of Mulk Nath Singh (supra).
It will also be relevant to notice that the finding which has been reversed by the Appellate Court in respect of the sale deed said to have been executed by Dinanath in favour of Sundar Lal, the same is not adequately considered nor supported with reasons. Whether the said sale deed was executed prior to 24.01.1971 or thereafter could only be proved once the said sale deed was on record. In absence of the said sale deed merely relying upon certain entries in the revenue records which do not establish title and are only for fiscal purposes could not give rise to a categorical finding and conclusion that since the name of Sundar Lal was recorded in the revenue records prior to the said date of 24.01.1971 without clear dates being available as to when it was entered in the revenue records and what was the basis and the reason for incorporating such entries. The findings of the Appellate Court on the aforesaid point are not supported by any clear and cogent evidence, hence are unsustainable.
Now coming to the third issue regarding clubbing the land of Yashodra in the hands of Dinanath, ignoring the adoption deed, even the said findings recorded by the Appellate Court do not inspire confidence as the Prescribed Authority while holding the adoption to be not proved had painstakingly considered the evidence of the witnesses as well as noticed the fact that Ramji alias Lallu was the son of Kailashnath who just few month prior to the death of Yashodra had been given in adoption to her. Dinanath otherwise, being the natural grand father of Ramji, the said adoption was created only to divert the property so that it may escape the clutches of the Ceiling Act.
The Prescribed Authority also noticed that the husband of Yashodra has expired long ago and in case if he had expressed his desire to adopt the son, then Yashodra ought to have adopted the child much before and not at the late stage when the Ceiling Act had already come into the picture and therefore the transaction was not valid.
How a ceiling area is to be considered while adjudging a transaction and whether it would be hit by Section 5 (6) of the Ceiling Act and the manner in which the Prescribed Authority is to hold an inquiry in this regard has been considered by the Apex Court in (1997) 1 SCC page 734 State of U.P. Vs. Amar Singh and others, the relevant portion thereof reads as under:-
"5. Thus, on and from the date the Amendment Act came into force, namely, 21-1-1971, the tenure-holder shall not hold, throughout the State of Uttar Pradesh, any land in the aggregate in excess of ceiling area applicable to him. Explanation I adumbrates that in determining ceiling area applicable to a tenure-holder, all lands held by him in his own right, whether in his own name or ostensibly in the name of any other person, shall be taken into account. In other words, as on the date the Amendment Act came into force, the land must be held by the tenure-holder in his own right and the lands ostensibly in the name of any other person shall be taken into account. In this case, admittedly, the alienations came to be made by Kishun Singh in favour of his sons and daughters-in-law. Normally, one would expect that if there is any compelling legal necessity to alienate the land, one would sell the land to third parties and that too, as prudent vendor for valuable consideration not to the sons and daughters-in-law. The object appears to be, as rightly pointed out by the District Judge, that the alienations were made by registered instruments in favour of his sons and daughters-in-law only to see that the provisions of the Act are defeated and the lands do not pass into the hands of strangers. It is true that the evidence was adduced by the respondents as regards proof of mutation. Mutation was effected on the basis that sale deeds came to be executed in favour of sons and daughters-in-law. Therefore, the mutation officer was not concerned at that stage to find out whether the sales were benami or ostensibly intended to defeat the provisions of the Act. It is settled law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alienee as per the Stamp Act and registered under the Registration Act. The alienees being sons and daughters-in-law, the tenure-holder remained to be the owner and holder of the land. The sons and daughters-in-law are only ostensible owners under Explanation I to Section 5(1) of the Act. It is true that Lekh Pal has not categorically stated whether the respondents remained in possession in their own right after the alienation. It is not in dispute that the father and sons remained to be members of the joint family and were cultivating the land. Under these circumstances, one would normally expect that Lekh Pal may not be in a position to categorically assert whether respondents remained in possession in their own right as owners or were cultivating land on their own or on behalf of the coparceners. Under these circumstances, the findings of the High Court are illegal. The case falls under Explanation I of Section 5(1) and the burden is always only on the respondents to establish that they were not ostensibly owning the land but remained in their own right as owners. Accordingly, we hold that Kishun Singh was the holder of the land. He was a tenure-holder as on the date and, therefore, ceiling area has to be computed treating him to be the owner of the land; besides himself, he had eight sons who are entitled to the respective additional ceiling area given to them under the Act. The authorities are, therefore, directed to compute the ceiling area accordingly and take possession of the surplus land.
The Apex Court has also considered the aforesaid aspect in (1995) supplement I SCC page 204 Nawal Singh Vs. State of U.P. and others and the relevant portion reads as under:-
2. For a transfer effected after 24-1-1971 to be valid it must be proved to have been made in good faith, for adequate consideration, under an irrevocable instrument, not being a benami transaction, or for immediate or deferred benefit of the tenureholder or other members of his family. Findings have been recorded at one stage or the other that the sale effected by the appellant was for adequate consideration and under an irrevocable instrument, not being a benami transaction or for immediate or deferred benefit of the tenureholder or other members of his family. These findings have been recorded in the backdrop that the appellant had his holdings in two villages i.e. Sihi and Asawar and that he was residing in Sihi, and had to manage his land at Asawar at a distance of about two and a half miles. Additionally he was an old man of about 65 years of age at the relevant time, had no son to look after him and his only daughter who was married was living elsewhere. In this situation, the appellant thought proper, as is his case, to sell the land at village Asawar for a sum of Rs 60,000 and he asserts that out of it he transferred a sum of Rs 35,000 to his daughter by way of gift and paid gift tax thereon. These assertions of the appellant have not been countered at any stage. His complete version has been doubted only on the premise that the sale was effected after the crucial date i.e. 24-1-1971 which was reflective of absence of good faith.
3. We do not at all appreciate the approach of the courts below. If this approach is accepted that no transfer effected after 24-1-1971 can escape, sub-section (6) of Section 5 would be rendered meaningless and a dead letter in the statute. The facts as stated above have been asserted by the appellant clearly and openly. There is nothing on these facts to attract a finding that all what he did was in bad faith. We are satisfied that he has more than ordinarily proved that the transaction of sale was effected in good faith and the approach of the courts below was not in accordance with the spirit of the statute. We thus set aside the impugned orders of the High Court as also that of the courts below and hold that the transaction in question was entered in good faith and the land covered by it is not to be reckoned towards computing his holding for ceiling purposes. The appeal is accordingly allowed. No costs.
The Apex Court again in the case of Brijendra Singh Vs. State of U.P. & others 1981 (1) SCC page 597 has considered the issue and the relevant portion reads as under:-
14..... It will be seen that when sub-section (6) of Section 5 provides that in determining the ceiling area and surplus area, any transfer of land which but for the transfer would have been declared surplus land under the Act, shall be ignored, it proceeds on the presumption that the tenure holders being aware of the resolution or manifesto adopted by the ruling All India Congress Party on January 24, 1971, and of the consensus at the Chief Ministers Conference held in July 1972, to take measures to lower the ceiling on agricultural holdings, might make attempts to defraud, defeat and evade the ceiling law, then in offing, by making fictitious transfers of land in favour of other persons. The presumption which underlies the main provision in Section 5(6) can be displaced, as the legislature has itself indicated, on proof of the conditions set out in proviso (b). Although the strength of the aforesaid presumption and the nature and quantum required to satisfy the conditions of proviso (b) may vary according to the circumstances of the particular case, yet it can be said as a general proposition that in the case of transfers made prior to the decision of the Chief Ministers Conference in July 1972 to lower the ceiling, the burden under Explanation II on the tenure holder to establish the facts bringing his case within clause (b) of the proviso, would be lighter than the one in the case of a transfer made after the aforesaid decision in July 1972.
15. In order to bring his case within the purview of proviso (b), the tenure holder has to show--
(i) that the transfer has been made in ''good faith';
(ii) that it is a transfer for adequate consideration;
(iii) that it has been made under an irrevocable instrument; and
(iv) that it is not a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family.
16. There is no dispute in regard to the connotation, construction and existence of ingredients (ii), (iii) and (iv) in the instant case. Controversy, however centres round the true meaning and scope of the expression "good faith" within the contemplation of clause (b) of the proviso. In the instant case, the Appellate Authority appears to have taken the view -- a view which has been upheld by the High Court -- that a transfer cannot be said to have been made in "good faith" merely because it has been honestly or genuinely made and satisfies the aforesaid Conditions (ii), (iii) and (iv), unless it is proved further that it was made for a valid pressing necessity.
............
18. The expression "good faith" has not been defined in the Ceiling Act. The expression has several shades of meaning. In the popular sense, the phrase "in good faith" simply means "honestly, without fraud, collusion, or deceit; really, actually, without pretence and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme", (see Words and Phrases, Permanent Edn., Vol. 18-A, p. 91). Although the meaning of "good faith" may vary in the context of different statutes, subjects and situations, honest intent free from taint of fraud or fraudulent design, is a constant element of its connotation. Even so, the quality and quantity of the honesty requisite for constituting "good faith" is conditioned by the context and object of the statute in which this term is employed. It is a cardinal canon of construction that an expression which has no uniform, precisely fixed meaning, takes its colour, light and content from the context.
19. The meaning and scope of the expression "good faith" is therefore, to be considered in the light of the scheme and purpose of Section 5, in general, and the context of proviso (b) to sub-section (6), in particular. We have already noticed that the primary object of the Ceiling Act, as adumbrated in the pivotal provision in Section 5(1) is to prohibit and disentitle a tenure holder from holding land in the aggregate in the State of Uttar Pradesh, in excess of the ceiling area, in his own right, whether in his own name, or ostensibly in the name of any other person. The ceiling area and surplus land of a tenure holder under the Ceiling Act, as already mentioned, are to be determined as on June 8, 1973 when the U.P. (Amendment) Act 18 of 1973 came into force. A transfer, therefore, made after January 24, 1971 which is designed to serve as a cloak for retention of a right or interest of the transferor in the ostensibly transferred land in excess of the ceiling area, even on or after June 8, 1973, will be patently not "in good faith". But the proviso (b) to sub-section (6) of Section 5 extends the negative aspect of the concept "good faith" a little further by indicating, that even if the transfer is not an ostensible transfer and the transferor divests himself of all interest and rights in present in the transferred land, but reserves some benefit in futuro for himself or other members of his family, then also, the transfer will be not in "good faith". A transfer solely for the purpose of converting surplus land into cash without any kind of need (not to be confused with legal necessity) may also lack good faith.
20. Broadly speaking, the benefit of clause (b) of the proviso to sub-section (b) is available to a transfer made in good faith, that is, to a bona fide transfer whereby the tenure holder genuinely and irrevocably transfers all right, title and interest in the land in favour of the transferee, in the ordinary course of management of his affairs and which is not a collusive arrangement, or device or subterfuge to enable the tenure holder to continue to hold the surplus land or any reserved interest in presenti or in future, therein, (or merely to convert it into cash), and thus circumvent the ban under Section 5(1) of the Ceiling Act. In order to be entitled to the benefit of proviso (a), a transfer made in good faith, must satisfy the further conditions, (ii) to (iv), enumerated in the proviso (b). The positive conditions laid down in proviso (b) are: that the transfer should be for adequate consideration; that it should have been made under an irrevocable instrument. The negative conditions set out in clause (b) of the proviso are: that it must not be a benami transaction; that it must not be for immediate or deferred benefit of the transferring tenure holder or other members of his family. These tests or Conditions (ii),(iii) and (iv) provided in proviso (b) may not by themselves be conclusive to hold that the transfer was in "good faith". For instance, another important test for judging the genuineness or otherwise of a sale would be whether or not cultivatory possession and enjoyment of the land has passed under the sale to the vendee. Even so, once it is established by the transferring tenure holder that the transfer in question effected in the course of ordinary management of his affairs, was made for adequate consideration and he has genuinely, absolutely and irrevocably divested himself of all right, title and interest (including cultivatory possession) in the land in favour of the transferee, the onus under Explanation II, in the absence of any circumstances suggestive of collusion, or an intention or design to defraud or circumvent the Ceiling Act, on the tenure holder to show that the transfer was effected in "good faith", will stand discharged, and it will not be necessary for the tenure holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity. Although proof of the fact that a transfer was made for a valid pressing necessity may highlight or strengthen the inference in favour of the genuineness of the transfer, it is not an indispensable constituent of "good faith"; nor is the proof of legal necessity requisite, as a matter of law, to enable a tenure holder to avail of the benefit of clause (b) of the proviso. It may be remembered that at the time when such a transfer was made, there was no legal restriction on his power to alienate the whole or any part of his holding. In other words, at the time when such a transfer was made it was not unlawful, even if it were made without any pressing necessity. It became unlawful by the subsequent enactment of a legal fiction introduced in Section 5(6) of the Ceiling Act (U.P. Act 18 of 1973) with retrospective effect from January 24, 1971. Even so, under this statutory fiction, a transfer of land made after January 24, 1971 does not become wholly void for all purposes; it can be ignored and would not be taken into account in determining the ceiling area of the transferring tenure holder for purposes of the Ceiling Act, and that too, if the following two conditions are satisfied--
(a) that the land but for the transfer would have been declared surplus land under the U.P. Act 18 of 1973; and
(b) that the transfer is not of a kind covered by proviso (6) to Section 5(6) of the Act.
This being the position, once a transfer is shown to be bona fide and further satisfies all the other positive and negative conditions laid down in the proviso (b) to Section 5(6), there is no justification in law to stretch the legal fiction further and to spell out from the expression "good faith" an additional requirement of proving pressing necessity for the transfer before the tenure holder is entitled to the benefit of the aforesaid proviso (b).
In light of what is culled out from the decisions of the Apex Court noticed above, this Court observes that the Appellate Authority must consider the evidence in a manner aforesaid to find out whether the transactions are bonafide.
Now noticing the aforesaid dictum in Amar Singh (supra), Nawal Singh (supra) and Brijendra Singh (supra) and applying the said principles to the instant case, this Court finds that the Appellate Court has not adhered to the principles of law settled and also the manner in which the objections of the tenure holder and the evidence thereon is to be considered. Moreover, categorical findings which have been recorded by the Prescribed Authority have not been considered by the Appellate Court in its correct prespective nor any reason has been incorporated why the conclusion of the Prescribed Authority were erroneous nor the findings of the Prescribed Authority have been reversed.
In view of the aforesaid discussions, this Court has no hesitation to hold that the impugned judgment passed by the Appellate Court dated 27.11.1979 cannot sustain judicial scrutiny and is liable to be set aside.
For the reasons aforesaid, the writ petition is allowed. A writ of certiorari is issued and the impugned judgment dated 27.11.1979 passed in Ceiling Appeal No.148 of 1979 shall stand quashed. The matter shall stand remitted to the Appellate Authority who shall after affording full opportunity of hearing to the parties shall pass a fresh order in appeal noticing the observations made in the judgment preferably within a period of six months, from the date a copy of this order is placed before the Appellate Court. In the facts and circumstances, there shall be no order as to costs.
( Jaspreet Singh, J ) Order Date :- April 4, 2023 ank/-