http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: AMAR SINGH ETC.

DATE OF JUDGMENT:       01/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

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.