State
of U.P. Vs. Amar Singh [1996] INSC 1235 (1 October 1996)
K. Ramaswamy,
G.B. Pattanaik
ACT:
HEAD NOTE:
WITH C.
A. Nos.1558, 1777 OF 1980 & 322-27 OF 1985
O R D
E R
All
these appeals are disposed of by a common Judgment since all the respondents are
either sons or daughters-in- law of the tenure-holder by name Kiahun Singh.
Kishun
Singh, admittedly, held 110 acres of agricultural lands. The U.P. Imposition of
Ceiling on Land Holdings Act, 1960 was amended. Act 1 of 1972 came into force w.e.f.
January 24, 1971. The admitted position is that
prior to the Amendment Act came into force on September 10, 1970 Kishun Singh
had alienated by registered sale deeds his holdings in favour of his sons and
daughters-in-law. When the computation was sought to be made of the surplus
land under Section 5 of the Act, the respondents claimed lands as of their own.
Accordingly, they sought to be holders of the lands purchased by them under the
sale deeds. The Tribunals disallowed it but in the Writ Petition Nos.384/78 and
batch by impugned order dated October 29, 1979,
the High Court allowed the matters and set aside the orders of the authorities.
Thus, these appeals by special leave.
Shri Pankaj
Kalra, learned counsel appearing for the respondents, raised two-fold contention.
It is contended that by operation of sub-section (6) of section 5, any
alienations made on or after January 1971 are declared to be null and void
unless they are bona fide transactions for valuable consideration and are not
intended to be a sham transaction or benami alienation. The alienation came to
be made by Kishun Singh in favour of his sons and daughters-in law on September 10, 1970, i.e., prior to amendment Act came
into force, mutation also was effected thereafter. As on the date of coming into
force of the Amendment Act, the respondents were registered holders of
agricultural holdings. Kishun Singh was neither holding the land nor was he a
tenure-holder of the alienations. The alienations being genuine transactions
effected prior to the coming into force of the Act, the same have to be taken
into consideration and the lands covered by the sale deeds are required to be
excluded from the holding of Kishun Singh. Therefore, the view taken by the
Tribunal below was not correct in law. It is also contended that the burden of
proof on the respondents would arise only in case the alienations were made on
or after January 24,
1971; rather the
burden is on the State to prove that they are not genuine transactions and are
intended to defeat the provisions of the Act. No proof in that behalf was
adduced by the State. On the other hand, the respondents have produced oral and
documentary evidence through theirs examination and by way of the sale deeds. Lekh
Pal, examined on behalf of the appellant, has not given any categorical
statement that the respondents were not in, possession of the lands purchased
by them in their own right as owners. The District Judge has not given any
categorical finding in that behalf. Therefore, the view taken by the High Court
is correct in law.
Having
considered the contentions, we find that the learned counsel is not right in
his submissions. The object of the Amendment Act is to see that the
transactions effected on or after January 21, 1971 were null and void and were
intended to defeat the provisions of the Act unless it is established that
valid consideration has been passed and the alienation was for compelling legal
necessity; that it was supported by adequate consideration and it was not a benami
transaction. In this case, the question arises:
whether
Explanation I to Section 5(1) would apply to the facts? In our view,
Explanation I of Section 5(1) would apply to the facts. Section 5 reads as
under:
"5.
Imposition of Ceiling : (1) One 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 the ceiling area application to him.
Explanation
1. 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 catensibly
in the name of the second mentioned persors..." Thus, on and from the date
the Amendment Act came into force, namely, January 21, 1971, the tenure-holder shall not hold thoughout
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 held by
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 vender 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 Stamp Act and registered under 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 categorical 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
owing 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
appeals are accordingly allowed. The order of the High Court is set aside. The
authorities are directed to determine the excess surplus area within a period
of three months from the date of receipt of this order of this Court and should
take possession thereof. No costs.
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