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PETITIONER: SANT SINGH

       Vs.

RESPONDENT: THE ADDITIONAL DISTRICT JUDGE,JHANSI & ORS.

DATE OF JUDGMENT:       14/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMAD SAGHIR S. (J)

CITATION:  1996 SCC  (3) 400        JT 1996 (3)    74  1996 SCALE  (2)583

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R       This  appeal by special leave arises from the order of the High  Court of  Judicature at  Allahabad made  in  Civil Misc. Writ  No.1127/77 on April 8, 1977 summarily dismissing the writ  petition.  The  appellant  challenged  the  notice issued under  Section 5 of the U.P. Imposition of Ceiling on Land Holdings  Act, 1960  [for short,  the ’Act’]. Since the appellant had  not voluntarily filed the declaration, notice came to  be issued.  The Additional  District Judge  by  his order  dated   February  23,   1977  had   negatived   three contentions raised  by the  appellant which  are  reiterated before us.  The first  contention is  that the appellant had sold 10 acres 33 cents of land by registered sale deed dated October 26,  1970  to  his  minor  daughter  represented  by mother. The appointed day is January 24, 1971.Therefore, the sale is  valid and  it is not in violation of the provisions of the  Act. The District Judge, therefore, was not right in clubbing in  the appellant’s holding of the said land on the ground that  the daughter  was unmarried.  Therefore, she is not a  member of the family. It is seen that sub-section (6) of Section  5 postulates  that 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 the Act,  shall be  ignored and  not taken into account. The proviso provides  that nothing  in  this  sub-section  shall apply to  "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 the family". The question is: whether the sale deed is executed in good faith and  for  adequate  consideration  and  is  not  a  ’Benami’ transaction for  the immediate  or deferred  benefit of  the tenure-holder or  other members  of the family. ’Family’ has

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been defined  under  the  Act  to  include  wife  and  minor children in  relation to  himself or herself and his wife or her husband,  as the  case may  be [other  than a judicially separated wife  or husband],  minor sons and minor daughters [other than married daughters]. It is seen that the District Judge had  recorded the  finding, as  a fact, that she was a minor and  the sale  deed was  executed by the father making the wife  as the  guardian  of  the  minor  daughter.  Under personal law,  father during his life-time remains to be the legal guardian  of the  minor and  mother cannot  be a legal guardian. He  cannot sell  the land  to himself. She being a minor and  the appellant being a tenure holder in respect of the said  land, even  though sale  was made,  the land under sale would  be includable  in his  holding. In either event, the said  land admeasuring 10 acres 33 cents cannot be taken out from the holding of the appellant.      It is next contended that the appellant had transferred 12 plots of land covering an area 13.47 acres to his private temple and  therefore, the  said land  cannot be included in his holding.  Admittedly, it  was done  on January  28, 1972 after the  appointed day.  Under those circumstances, though the transfer was made in favour of the temple which is found to be a private temple, it being after the appointed day, it is invalid  in law.  Therefore, the  land is  required to be included in his holding.      It is  next contended  that plots Nos.5 and 13 are part of unirrigated  land and  therefore, they have to be treated as an  unirrigable land.  The District Judge was, therefore, wrong in  treating them  as irrigated  land. It is seen that Khasra record  has been  produced  by  the  Lokpal  who  was examined before the District Judge. No question has been put to him as regards the nature of the irrigation done therein. The record  contains that  it was  being irrigated  by tube- well. Under  Section 4A firstly, clause (a)(iii) states that in determining  any land  as irrigated land, land cultivated by any State tube-well or a private irrigation work would be considered as  irrigable land.  In view of the fact that the lands are  being irrigated  by  tube-well  which  is  called Nalcoop, treating  this land  as irrigated  land, as held by the District Judge on the evidence on record, cannot be said to be  unwarranted. The  learned counsel  also  relied  upon Ramadhar Singh  v. Prescribed Authority & Ors. [(1994) Supp. 3 SCC  702], wherein the question was whether genuineness of the sale  deed was  not gone  into.  This  Court  held  that validity of the sale deed executed prior to January 24, 1971 could not  be  determined.  But  in  view  of  the  specific language referred  to hereinbefore  which was not brought to the notice  of this  Courts it is difficult to hold that the Tribunal committed  any error  ino going into that question. Thus construed,  we find  it difficult to give relief to the appellant.      The appeal accordingly is dismmised. No costs.