Puttul Kumari vs The State Of U.P. Through The Collector Rae Bareli

11. Shri Tripathi, learned counsel for the petitioner has vehemently urged that first and foremost the Appellate Authority was bound to consider the appeal afresh in terms of remand order passed by this Court in Writ Petition No.1774 (Ceiling) of 1986. The contentions which were raised before the High Court and as per the judgment of the High Court was required to be noticed by the Appellate Authority, who was under an obligation to consider the same in accordance with law. However, the Appellate Authority did not notice the same and in a vague manner dismissed the appeal which is apparently an erroneous exercise of jurisdiction.

12. It is further urged that the Appellate Authority was bound by the directions of the High Court and having failed to consider the same, the Appellate Authority has committed an error.

13. The second limb of submission of the learned counsel for the petitioner is that it was not disputed that in the first round of litigation which had attained finality vide judgment and order dated 08.04.1975 and the land of Ram Rakhan was declared surplus, the remaining land in the hands of Ram Rakhan was as per the State within the ceiling limit. Once the land available with Ram Rakhan in the year 1976 was within the ceiling limit then he was well within his right to sell some part of the property and the sale-deed dated 09.07.1976 could not be treated to be hit by virtue of Section 5 of the Act of 1960.

14. This being the position, the said land could not have been clubbed with the holding of Ram Rakhan and even if so, the fact would remain 4 WRIC No. 3000065 of 2007 that if the said sale-deed of the year 1976 was not treated to be valid, yet the same land would come back in the hands of Ram Rakhan it would bring the position as it was available with Ram Rakhan on 08.04.1975 that is within the ceiling limit.

15. It is also urged that as far as the inheritance of the share of Smt. Chandrika Devi is concerned, in that it was required to be considered as to whether it would breach the ceiling limit and this issue was also considered by the High Court and it remitted the matter to consider this aspect and without considering the evidence on record, the Appellate Authority once again committed the same mistake as done in its order dated 21.11.1985.

16. It was further submitted that if the impugned order dated 17.05.2007 is seen, it would indicate that the reasoning given by the Appellate Authority is completely based on surmises and conjectures and there was no material on record to substantiate the same. Any finding recorded which is not based on any evidence or material, is patently perverse and in the aforesaid circumstances, the order impugned dated 17.05.2007 cannot be sustained and for all the aforesaid reasons, the same deserves to be set aside, after allowing the instant writ petition.

17. Shri Pushpendra Kumar Singh, learned standing counsel for the State, while controverting the aforesaid submissions, has urged that the judgment and order passed by the High Court dated 04.01.1989 was considered by the Appellate Authority, who duly noted the contentions and the issue which was required to be considered in terms of the order of the High Court and it returned a finding that the sale-deed executed by Ram Rakhan on 09.07.1976 was in favour of his son-in-law. The said sale-deed was for a consideration of Rs.10,000/- and the said consideration was not adequate and in such circumstances, it appeared that the sale-deed had been executed only to avoid the ceiling limit.

18. It is further urged that Ram Rakhan had inherited half share from Smt. Chandrika Devi and in view thereof, the said land having breached the ceiling limit, the authorities in terms of Section 29 of the Act of 1960 were well within their right to issue the notice and this aspect was also 5 WRIC No. 3000065 of 2007 considered by the Appellate Authority. The finding that the land available with Ram Rakhan had breached the ceiling limit and that the sale-deed was nothing but an attempt to avoid imposition of ceiling was not bonafide, hence, these being findings of fact and there being no contrary evidence, consequently, such findings cannot be disturbed in exercise of powers under Article 227 of the Constitution of India, accordingly, the writ petition deserves to be dismissed.

19. The Court has heard learned counsel for the parties and also perused the material available on record.

20. Having considered the aforesaid submissions of the respective parties and also from perusal of the record, certain undisputed facts that emerge are :- (i) that the original tenure holder Ram Rakhan (father of the present petitioner) was served with a notice under Section 10(2) of the Act of 1960. In the earlier round, some land was found to be beyond the prescribed ceiling limit and it was transferred and mutated in the name of the State. This order of the Prescribed Authority dated 14.08.1974 declaring surplus was challenged in an appeal which came to be dismissed on

08.04.1985 and thus, the proceedings rested there that is to say that the land which was found surplus had been taken by the State and the remaining would vest exclusively with the father of the present petitioner, namely, Ram Rakhan. (ii) It is also not disputed that the after the ceiling proceedings had attained finality on 08.04.1975, it is only thereafter that Ram Rakhan transferred some part of his land in favour of Bansi Dhar by means of a sale-deed dated 09.07.1976. (iii) Once again a notice under Section 29 of the Act of 1960 was issued to the present petitioner indicating that after the death of Smt. Chandrika Devi, Ram Rakhan had inherited half share. This alongwith the area which was sold in favour of Bansi Dhar together breached the ceiling limit, hence, the notice was once again issued. 6 WRIC No. 3000065 of 2007 (iv) It is also not disputed that the petitioner had filed objections contesting the proceedings under Section 29 of the Act of 1960, however, the same did not find favour with either the Prescribed Authority or the Appellate Authority, hence, the petitioner preferred a writ petition before this Court bearing Writ Petition No.1774 (Ceiling) of 1986, which came to be allowed on 04.01.1989. (v) It is also not disputed that after the writ petition was allowed, the matter was remitted to the Appellate Authority, who by means of the impugned order dated 17.05.2007 dismissed the appeal which prompted the petitioner to once again approach this Court by means of the instant petition.

21. In view of the aforesaid and before examining the respective pleas raised by the parties, it will be appropriate to notice the directions given by the Coordinate Bench of this Court in its judgment and order dated

04.01.1989 passed in Writ Petition No.1774 (Ceiling) of 1986 and the relevant part thereof is being reproduced hereinafter:- ". . . It is true on the record of the writ petition, the date of death of Smt. Chandrika Devi is not available but ____ (sic) to the effect that she had died after the sale-deed was executed, has been made in the writ petition which has not been controverted by the State by means of filing any counter affidavit. It is also to be found in the order of the appellate court that this plea was raised that Chandrika Devi had died after execution of the sale-deed dated 9.7.1976. Therefore, on the basis of material available on record, this fact had to be taken into account as stated by the petitioner, namely, the sale-deed was executed after finalisation of ceiling proceedings against Ram Rakhan and before Chandrika Devi died and her property was inherited by Ram Rakhan. A perusal of the order passed by the appellate court indicates that the said contention as indicated above was raised by the petitioner before the appellate court but the appellate court has merely narrated the arguments and has not applied its mind to the plea raised. As a matter of fact, this aspect of the matter has been completely ignored by the appellate court and it has only considered the matter on the ground that the sale-deed was executed after January 24, 7 WRIC No. 3000065 of 2007 1971 and it was in favour of own son-in-law of Ram Rakhan for a consideration which, according to the appellate court, was not sufficient. The sale-deed was sought to be ignored but the relevant question which was to be considered, was the effect of transfer that was made out of the land which was within the prescribed ceiling limit and before certain land fell in the tenancy of Ram Rakhan by inheritance due to the death of Smt. Chandrika Devi. I find force in the contention raised on behalf of the petitioner. There is no dispute about the fact that a person can very well transfer land out of the land which he holds within the prescribed ceiling limit and no doubt can be had about the genuineness of the transfer under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act. One would never know that when one of his relations may die as a result of which one may inherit part of his property. As observed earlier, although this contention of the petitioner was noted by the appellate court but the appellate court completely ignored to consider the same or to apply its mind to this aspect of the matter. The next submission raised on behalf of the petitioner is that the plots No.155, 284, 157, 230, 303, 320, 163, 164, 165 and 324 have been wrongly held to be irrigated land. In this contention, learned counsel for the petitioner has submitted that there was material on record on the basis of which the courts below should have decided the question of irrigated and unirrigated land. The prescribed authority had held that the above mentioned plots were irrigated since this question had already been decided in proceedings against Smt. Chandrika Devi when the said plots wee held by her. Learned counsel for the petitioner has placed reliance upon Section 38-3 of the U.P. Imposition of Ceiling on Land Holdings Act to indicate that earlier decision between the State and Smt. Chandrika Devi will not apply as res judicata on the point. In this connection also, it is found that the learned appellate court has mentioned about the contention of the petitioner that the said plots have been wrongly held to be irrigated but it has recorded its finding on this question. It is clear on perusal of the order passed by the appellate court that it failed to apply its mind to the relevant question which should have been dealt with and decided by it. 8 WRIC No. 3000065 of 2007 In the result, the writ petition is allowed and the order passed by opposite party No.1 contained in Annexure-3 to the writ petition is set aside and the case is remanded to opposite party No.1 for hearing the appeal afresh and decide the same taking into consideration the points raised by the petitioner. There would be no order as to costs."

22. Having taken a glance at the above quoted order, it would reveal that before the High Court what contentions were raised by the petitioner as well as the State-respondents and it is only in furtherance thereof, the writ petition was allowed and the matter was remitted. This apparently assumes significance for the reasons that the Appellate Authority was bound to consider the issues which were required to be deliberated and decided by the Appellate Authority in terms of the order passed by the High Court dated 04.01.1989.

23. It will also be relevant to notice that this order dated 04.01.1989 was not assailed any further and as such it attained finality in between the parties. This is to say that the Appellate Authority was bound by the order of the High Court and it had to determine the issues in context and as per the directions of the High Court.

24. In the aforesaid backdrop, if the impugned order dated 17.05.2007 is examined, it would reveal that the reasoning adopted by the Appellate Authority was built on the premise that after the death of Smt. Chandrika Devi, half share was inherited by Ram Rakhan. The Appellate Authority opined that after the death of Ram Rakhan, the area inherited by Ram Rakhan from Smt. Chandrika Devi would thereafter vest with his widow, who also expired and came in the hands of the petitioner (being daughter of Ram Rakhan), hence, in terms of Section 29 of the Act of 1960, the notice would have been issued and the said notice could not be treated to be bad nor it would be barred by the principles of res judicata. The Appellate Authority also opined that since the alleged sale-deed dated

09.07.1976 was executed in favour of Bansi Dhar, who happened to be the son-in-law and it did not reflect adequate sale consideration, hence, it appeared to be a device created to avoid the imposition of ceiling, hence, 9 WRIC No. 3000065 of 2007 the said sale-deed was not bonafide and consequently since it was executed after the cut off date of 24.01.1971, hence, the same had to be ignored and for the said reason, the order passed by the Prescribed Authority dated 10.02.1984 did not require any interference.

25. If the aforesaid reasoning is considered in piecemeal, it would indicate the following errors (i) the first and foremost as as Appellate Authority before returning a finding either ways, it ought to have been considered by the Appellate Authority to notice the available evidence before it upon which the finding could be based.

26. It is in this context, it would be found that there is no consideration at all by the Appellate Authority to the fact that once in the first round, the land of Ram Rakhan was found to be beyond the ceiling limit and had been taken by the State, the remaining would apparently in the hands of the tenure holder name, Ram Rakhan would be within the ceiling limit. This being the situation, the execution of the sale-deed on 09.07.1976 in favour of Bansi Dhar per se cannot be said to be bad or not bonafide in terms of Section 5 of the Act of 1960 nor it can be said to have been executed after the cut off date of 24.01.1971, so that it could be ignored.

27. At this stage, it will also be relevant to point out that mere execution of the sale-deed after the cut off date does ipso facto makes it void rather before ignoring such a sale-deed or before considering that it was not bonafide, there has to be some discussion based on cogent evidence on record to indicate that the sale-deed was not bonafide or that it was executed to only avoid imposition of the ceiling limit.

28. In this regard, there is no consideration of the evidence in the impugned order by the Appellate Authority coupled with the fact that the State could not bring any material before this Court while filing its counter affidavit to show as to whether there was any lack of bonafides. The imposition of the U.P. Imposition of Ceiling on Land Holding Act 1960 is an proprietary legislation which intends to take away the land of the tenure holder provided it breaches the ceiling limit and subject to the conditions as contained in the of the Act of 1960, then considering the nature of legislation, it is to be construed strictly coupled with the fact that 10 WRIC No. 3000065 of 2007 the powers which have to be exercised by the State in order to confiscate such land under the provisions of the Act of 1960 must be established by the State. Any finding given merely on the basis of assumptions cannot be sustained against the tenure holder in favour of the State.

29. As noticed above, the learned standing counsel could not indicate either from the counter affidavit nor from any material on record as what was the basis for the Appellate Authority to find that the sale-deed executed by Ram Rakhan in 1976 in favour of Bansi Dhar, who even though may be the son-in-law of Ram Rakhan was not bonafide. No material could be pointed out to demonstrate that the sale consideration for which the sale-deed had been executed was inadequate. Merely giving a finding that the sale-deed was for a sum of Rs.10,000/- is inadequate consideration is per se based on surmise, which cannot partake the nature of a finding based on evidence.

30. At this stage, it will be worthwhile to notice that this Court had the occasion to consider as to whether a sale-deed/a Will merely because it was executed after the cut off date would ipso facto became void or is capable of being ignored without any other material or evidence on record to indicate that the sale-deed was not bonafide. In State of U.P. v. Kailash Nath and others, 2023 SCC OnLine All 1829, wherein after taking note of the decision of the Apex Court in Brijendra Singh v. State of U.P., (1981) 1 SCC 597, the dictum was laid. The decision of Kailash Nath (supra) was followed by this Court in Ajai Pratap Singh and others v. State of U.P. and others [WRIT-C No.3000164 of 1998], 2025:AHC-LKO:31419, is being reproduced hereinafter:- "25. This Court had the occasion to consider a similar issue in State of U.P. Vs. Kailash Nath & others 2023 SCC OnLine, All. 1829 wherein the impact of a sale deed and a Will was considered and with the aid of decision of the Apex Court, it was noticed that even though the Will and the sale deed is executed after the cut of date yet it is required to be established that it was bonafide and once the necessary ingredients are not proved only then the same would be considered as being hit by Section 5 of the Act of 1960. The relevant portion of judgment 11 WRIC No. 3000065 of 2007 in Kailash Nath (supra) is being reproduced hereinafter for ready reference:- "26. 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 State of U.P. v. Bankey Singh, (1996) 27 ALR 445 has held as under: “... The only question in this case is : whether 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 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 12 WRIC No. 3000065 of 2007 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, 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 13 WRIC No. 3000065 of 2007 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.

27. 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).

28. 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 14 WRIC No. 3000065 of 2007 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.

29. 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.

30. 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.

31. 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 State of U.P v. Amar Singh (1997) 1 SCC 734 , the relevant portion thereof reads as under:- 15 WRIC No. 3000065 of 2007 “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 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 the evidence was adduced by 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 16 WRIC No. 3000065 of 2007 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, 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 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 cultivating land. Under 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 respondents to establish 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.

32. The Apex Court has also considered the aforesaid aspect in Nawal Singh v . State of U.P., 1995 Supp (1) SCC 204 and the 17 WRIC No. 3000065 of 2007 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 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 18 WRIC No. 3000065 of 2007 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.

33. The Apex Court again in the case of Brijendra Singh v. State of U.P. (1981) 1 SCC 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 19 WRIC No. 3000065 of 2007 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 20 WRIC No. 3000065 of 2007 “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. x x x

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 21 WRIC No. 3000065 of 2007 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 subsection (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 22 WRIC No. 3000065 of 2007 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 transfer question effected 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 necessity. Although proof of the fact that a transfer was made for a valid pressing necessity may 23 WRIC No. 3000065 of 2007 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 24 WRIC No. 3000065 of 2007 requirement of proving pressing necessity for the transfer before the tenure holder is entitled to the benefit of the aforesaid proviso (b).

34. 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."

26. In light of the aforesaid, it is clear that where Munna who claimed separate right on the basis of the Will, Smt. Ram Kunwari and Smt. Phool Kunwari who are admittedly were the Sali (sister-in-law) of Raja Bux Singh, per se, their land could not be treated as land of Raja Bux Singh unless there was some cogent material to indicate that Raja Bux Singh continued to be its benami holder. However, this is not the case."

31. As per the aforesaid dictum in Ajai Pratap Singh (supra), it would reveal that it is not sufficient to discard a document of a sale-deed merely because it is executed post the cut off date. There must be consideration of the evidence and material upon which a sustainable finding can be recorded that the document is not bonafide.

32. Suffice it to state that such consideration is conspicuously absent from the impugned order dated 17.05.2007, hence, this reasoning of the Appellate Authority holding that the sale-deed dated 09.07.1976 bad or not bonafide cannot be sustained.

33. Insofar as the second reasoning adopted by the Appellate Authority is concerned, if examined, would reveal that there is no consideration of the fact as to when and how much area was inherited by Ram Rakhan from Smt. Chandrika Devi. This is important for the reason that as noticed above, the sale-deed dated 09.07.1976 had been executed, hence, on that date, the land available with Ram Rakhan was apparently within the ceiling area, which was further reduced by the area sold out by Ram Rakhan by the sale-deed dated 09.07.1976 in favour of Bansi Dar. Thereafter, with this residue how much and when the share of Smt. Chandrika Devi was inherited would be seen and thereafter again it will 25 WRIC No. 3000065 of 2007 have to be noticed as to what was the nature of the said land that is to say irritated or non-irrigated and who were the family members of Ram Rakhan and how much land was available to determine the actual land in the hands of Ram Rakhan and only thereafter the proper ascertainment could be made whether the land available with the petitioner breached the ceiling limit or not, needless to say, even this consideration is not present in the impugned order.

34. It is also reiterated that this was a consideration which ought to have been made by the Appellate Authority especially when it was directed by the High Court to be undertaken by the Appellate Authority vide its order dated 04.01.1989, hence, for this reason as well, the order passed by the Appellate Authority cannot be sustained.

35. For all the aforesaid reasons, the impugned order dated 17.05.2007 cannot be sustained and is patently arbitrary. Accordingly, it is set aside. The issue in question required to be considered in light of the observations made including it is noticed that a fresh order be passed by the Appellate Authority within a period of six months from the date, a certified copy of this order is placed before the Appellate Authority. It is also stated that no fresh evidence would be permitted to either of the parties and on the material already available, the Appellate Authority shall pass an order.

36. With the aforesaid, the petition is allowed. There shall be on order as to costs. October 10, 2025 Rakesh/- (Jaspreet Singh,J.) RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

11. Shri Tripathi, learned counsel for the petitioner has vehemently urged that first and foremost the Appellate Authority was bound to consider the appeal afresh in terms of remand order passed by this Court in Writ Petition No.1774 (Ceiling) of 1986. The contentions which were raised before the High Court and as per the judgment of the High Court was required to be noticed by the Appellate Authority, who was under an obligation to consider the same in accordance with law. However, the Appellate Authority did not notice the same and in a vague manner dismissed the appeal which is apparently an erroneous exercise of jurisdiction.

12. It is further urged that the Appellate Authority was bound by the directions of the High Court and having failed to consider the same, the Appellate Authority has committed an error.

13. The second limb of submission of the learned counsel for the petitioner is that it was not disputed that in the first round of litigation which had attained finality vide judgment and order dated 08.04.1975 and the land of Ram Rakhan was declared surplus, the remaining land in the hands of Ram Rakhan was as per the State within the ceiling limit. Once the land available with Ram Rakhan in the year 1976 was within the ceiling limit then he was well within his right to sell some part of the property and the sale-deed dated 09.07.1976 could not be treated to be hit by virtue of Section 5 of the Act of 1960.

14. This being the position, the said land could not have been clubbed with the holding of Ram Rakhan and even if so, the fact would remain 4 WRIC No. 3000065 of 2007 that if the said sale-deed of the year 1976 was not treated to be valid, yet the same land would come back in the hands of Ram Rakhan it would bring the position as it was available with Ram Rakhan on 08.04.1975 that is within the ceiling limit.

15. It is also urged that as far as the inheritance of the share of Smt. Chandrika Devi is concerned, in that it was required to be considered as to whether it would breach the ceiling limit and this issue was also considered by the High Court and it remitted the matter to consider this aspect and without considering the evidence on record, the Appellate Authority once again committed the same mistake as done in its order dated 21.11.1985.

16. It was further submitted that if the impugned order dated 17.05.2007 is seen, it would indicate that the reasoning given by the Appellate Authority is completely based on surmises and conjectures and there was no material on record to substantiate the same. Any finding recorded which is not based on any evidence or material, is patently perverse and in the aforesaid circumstances, the order impugned dated 17.05.2007 cannot be sustained and for all the aforesaid reasons, the same deserves to be set aside, after allowing the instant writ petition.

17. Shri Pushpendra Kumar Singh, learned standing counsel for the State, while controverting the aforesaid submissions, has urged that the judgment and order passed by the High Court dated 04.01.1989 was considered by the Appellate Authority, who duly noted the contentions and the issue which was required to be considered in terms of the order of the High Court and it returned a finding that the sale-deed executed by Ram Rakhan on 09.07.1976 was in favour of his son-in-law. The said sale-deed was for a consideration of Rs.10,000/- and the said consideration was not adequate and in such circumstances, it appeared that the sale-deed had been executed only to avoid the ceiling limit.

18. It is further urged that Ram Rakhan had inherited half share from Smt. Chandrika Devi and in view thereof, the said land having breached the ceiling limit, the authorities in terms of Section 29 of the Act of 1960 were well within their right to issue the notice and this aspect was also 5 WRIC No. 3000065 of 2007 considered by the Appellate Authority. The finding that the land available with Ram Rakhan had breached the ceiling limit and that the sale-deed was nothing but an attempt to avoid imposition of ceiling was not bonafide, hence, these being findings of fact and there being no contrary evidence, consequently, such findings cannot be disturbed in exercise of powers under Article 227 of the Constitution of India, accordingly, the writ petition deserves to be dismissed.

19. The Court has heard learned counsel for the parties and also perused the material available on record.

20. Having considered the aforesaid submissions of the respective parties and also from perusal of the record, certain undisputed facts that emerge are :- (i) that the original tenure holder Ram Rakhan (father of the present petitioner) was served with a notice under Section 10(2) of the Act of 1960. In the earlier round, some land was found to be beyond the prescribed ceiling limit and it was transferred and mutated in the name of the State. This order of the Prescribed Authority dated 14.08.1974 declaring surplus was challenged in an appeal which came to be dismissed on

08.04.1985 and thus, the proceedings rested there that is to say that the land which was found surplus had been taken by the State and the remaining would vest exclusively with the father of the present petitioner, namely, Ram Rakhan. (ii) It is also not disputed that the after the ceiling proceedings had attained finality on 08.04.1975, it is only thereafter that Ram Rakhan transferred some part of his land in favour of Bansi Dhar by means of a sale-deed dated 09.07.1976. (iii) Once again a notice under Section 29 of the Act of 1960 was issued to the present petitioner indicating that after the death of Smt. Chandrika Devi, Ram Rakhan had inherited half share. This alongwith the area which was sold in favour of Bansi Dhar together breached the ceiling limit, hence, the notice was once again issued. 6 WRIC No. 3000065 of 2007 (iv) It is also not disputed that the petitioner had filed objections contesting the proceedings under Section 29 of the Act of 1960, however, the same did not find favour with either the Prescribed Authority or the Appellate Authority, hence, the petitioner preferred a writ petition before this Court bearing Writ Petition No.1774 (Ceiling) of 1986, which came to be allowed on 04.01.1989. (v) It is also not disputed that after the writ petition was allowed, the matter was remitted to the Appellate Authority, who by means of the impugned order dated 17.05.2007 dismissed the appeal which prompted the petitioner to once again approach this Court by means of the instant petition.

21. In view of the aforesaid and before examining the respective pleas raised by the parties, it will be appropriate to notice the directions given by the Coordinate Bench of this Court in its judgment and order dated

04.01.1989 passed in Writ Petition No.1774 (Ceiling) of 1986 and the relevant part thereof is being reproduced hereinafter:- ". . . It is true on the record of the writ petition, the date of death of Smt. Chandrika Devi is not available but ____ (sic) to the effect that she had died after the sale-deed was executed, has been made in the writ petition which has not been controverted by the State by means of filing any counter affidavit. It is also to be found in the order of the appellate court that this plea was raised that Chandrika Devi had died after execution of the sale-deed dated 9.7.1976. Therefore, on the basis of material available on record, this fact had to be taken into account as stated by the petitioner, namely, the sale-deed was executed after finalisation of ceiling proceedings against Ram Rakhan and before Chandrika Devi died and her property was inherited by Ram Rakhan. A perusal of the order passed by the appellate court indicates that the said contention as indicated above was raised by the petitioner before the appellate court but the appellate court has merely narrated the arguments and has not applied its mind to the plea raised. As a matter of fact, this aspect of the matter has been completely ignored by the appellate court and it has only considered the matter on the ground that the sale-deed was executed after January 24, 7 WRIC No. 3000065 of 2007 1971 and it was in favour of own son-in-law of Ram Rakhan for a consideration which, according to the appellate court, was not sufficient. The sale-deed was sought to be ignored but the relevant question which was to be considered, was the effect of transfer that was made out of the land which was within the prescribed ceiling limit and before certain land fell in the tenancy of Ram Rakhan by inheritance due to the death of Smt. Chandrika Devi. I find force in the contention raised on behalf of the petitioner. There is no dispute about the fact that a person can very well transfer land out of the land which he holds within the prescribed ceiling limit and no doubt can be had about the genuineness of the transfer under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act. One would never know that when one of his relations may die as a result of which one may inherit part of his property. As observed earlier, although this contention of the petitioner was noted by the appellate court but the appellate court completely ignored to consider the same or to apply its mind to this aspect of the matter. The next submission raised on behalf of the petitioner is that the plots No.155, 284, 157, 230, 303, 320, 163, 164, 165 and 324 have been wrongly held to be irrigated land. In this contention, learned counsel for the petitioner has submitted that there was material on record on the basis of which the courts below should have decided the question of irrigated and unirrigated land. The prescribed authority had held that the above mentioned plots were irrigated since this question had already been decided in proceedings against Smt. Chandrika Devi when the said plots wee held by her. Learned counsel for the petitioner has placed reliance upon Section 38-3 of the U.P. Imposition of Ceiling on Land Holdings Act to indicate that earlier decision between the State and Smt. Chandrika Devi will not apply as res judicata on the point. In this connection also, it is found that the learned appellate court has mentioned about the contention of the petitioner that the said plots have been wrongly held to be irrigated but it has recorded its finding on this question. It is clear on perusal of the order passed by the appellate court that it failed to apply its mind to the relevant question which should have been dealt with and decided by it. 8 WRIC No. 3000065 of 2007 In the result, the writ petition is allowed and the order passed by opposite party No.1 contained in Annexure-3 to the writ petition is set aside and the case is remanded to opposite party No.1 for hearing the appeal afresh and decide the same taking into consideration the points raised by the petitioner. There would be no order as to costs."

22. Having taken a glance at the above quoted order, it would reveal that before the High Court what contentions were raised by the petitioner as well as the State-respondents and it is only in furtherance thereof, the writ petition was allowed and the matter was remitted. This apparently assumes significance for the reasons that the Appellate Authority was bound to consider the issues which were required to be deliberated and decided by the Appellate Authority in terms of the order passed by the High Court dated 04.01.1989.

23. It will also be relevant to notice that this order dated 04.01.1989 was not assailed any further and as such it attained finality in between the parties. This is to say that the Appellate Authority was bound by the order of the High Court and it had to determine the issues in context and as per the directions of the High Court.

24. In the aforesaid backdrop, if the impugned order dated 17.05.2007 is examined, it would reveal that the reasoning adopted by the Appellate Authority was built on the premise that after the death of Smt. Chandrika Devi, half share was inherited by Ram Rakhan. The Appellate Authority opined that after the death of Ram Rakhan, the area inherited by Ram Rakhan from Smt. Chandrika Devi would thereafter vest with his widow, who also expired and came in the hands of the petitioner (being daughter of Ram Rakhan), hence, in terms of Section 29 of the Act of 1960, the notice would have been issued and the said notice could not be treated to be bad nor it would be barred by the principles of res judicata. The Appellate Authority also opined that since the alleged sale-deed dated

09.07.1976 was executed in favour of Bansi Dhar, who happened to be the son-in-law and it did not reflect adequate sale consideration, hence, it appeared to be a device created to avoid the imposition of ceiling, hence, 9 WRIC No. 3000065 of 2007 the said sale-deed was not bonafide and consequently since it was executed after the cut off date of 24.01.1971, hence, the same had to be ignored and for the said reason, the order passed by the Prescribed Authority dated 10.02.1984 did not require any interference.

25. If the aforesaid reasoning is considered in piecemeal, it would indicate the following errors (i) the first and foremost as as Appellate Authority before returning a finding either ways, it ought to have been considered by the Appellate Authority to notice the available evidence before it upon which the finding could be based.

26. It is in this context, it would be found that there is no consideration at all by the Appellate Authority to the fact that once in the first round, the land of Ram Rakhan was found to be beyond the ceiling limit and had been taken by the State, the remaining would apparently in the hands of the tenure holder name, Ram Rakhan would be within the ceiling limit. This being the situation, the execution of the sale-deed on 09.07.1976 in favour of Bansi Dhar per se cannot be said to be bad or not bonafide in terms of Section 5 of the Act of 1960 nor it can be said to have been executed after the cut off date of 24.01.1971, so that it could be ignored.

27. At this stage, it will also be relevant to point out that mere execution of the sale-deed after the cut off date does ipso facto makes it void rather before ignoring such a sale-deed or before considering that it was not bonafide, there has to be some discussion based on cogent evidence on record to indicate that the sale-deed was not bonafide or that it was executed to only avoid imposition of the ceiling limit.

28. In this regard, there is no consideration of the evidence in the impugned order by the Appellate Authority coupled with the fact that the State could not bring any material before this Court while filing its counter affidavit to show as to whether there was any lack of bonafides. The imposition of the U.P. Imposition of Ceiling on Land Holding Act 1960 is an proprietary legislation which intends to take away the land of the tenure holder provided it breaches the ceiling limit and subject to the conditions as contained in the of the Act of 1960, then considering the nature of legislation, it is to be construed strictly coupled with the fact that 10 WRIC No. 3000065 of 2007 the powers which have to be exercised by the State in order to confiscate such land under the provisions of the Act of 1960 must be established by the State. Any finding given merely on the basis of assumptions cannot be sustained against the tenure holder in favour of the State.

29. As noticed above, the learned standing counsel could not indicate either from the counter affidavit nor from any material on record as what was the basis for the Appellate Authority to find that the sale-deed executed by Ram Rakhan in 1976 in favour of Bansi Dhar, who even though may be the son-in-law of Ram Rakhan was not bonafide. No material could be pointed out to demonstrate that the sale consideration for which the sale-deed had been executed was inadequate. Merely giving a finding that the sale-deed was for a sum of Rs.10,000/- is inadequate consideration is per se based on surmise, which cannot partake the nature of a finding based on evidence.

30. At this stage, it will be worthwhile to notice that this Court had the occasion to consider as to whether a sale-deed/a Will merely because it was executed after the cut off date would ipso facto became void or is capable of being ignored without any other material or evidence on record to indicate that the sale-deed was not bonafide. In State of U.P. v. Kailash Nath and others, 2023 SCC OnLine All 1829, wherein after taking note of the decision of the Apex Court in Brijendra Singh v. State of U.P., (1981) 1 SCC 597, the dictum was laid. The decision of Kailash Nath (supra) was followed by this Court in Ajai Pratap Singh and others v. State of U.P. and others [WRIT-C No.3000164 of 1998], 2025:AHC-LKO:31419, is being reproduced hereinafter:- "25. This Court had the occasion to consider a similar issue in State of U.P. Vs. Kailash Nath & others 2023 SCC OnLine, All. 1829 wherein the impact of a sale deed and a Will was considered and with the aid of decision of the Apex Court, it was noticed that even though the Will and the sale deed is executed after the cut of date yet it is required to be established that it was bonafide and once the necessary ingredients are not proved only then the same would be considered as being hit by Section 5 of the Act of 1960. The relevant portion of judgment 11 WRIC No. 3000065 of 2007 in Kailash Nath (supra) is being reproduced hereinafter for ready reference:- "26. 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 State of U.P. v. Bankey Singh, (1996) 27 ALR 445 has held as under: “... The only question in this case is : whether 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 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 12 WRIC No. 3000065 of 2007 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, 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 13 WRIC No. 3000065 of 2007 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.

27. 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).

28. 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 14 WRIC No. 3000065 of 2007 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.

29. 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.

30. 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.

31. 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 State of U.P v. Amar Singh (1997) 1 SCC 734 , the relevant portion thereof reads as under:- 15 WRIC No. 3000065 of 2007 “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 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 the evidence was adduced by 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 16 WRIC No. 3000065 of 2007 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, 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 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 cultivating land. Under 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 respondents to establish 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.

32. The Apex Court has also considered the aforesaid aspect in Nawal Singh v . State of U.P., 1995 Supp (1) SCC 204 and the 17 WRIC No. 3000065 of 2007 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 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 18 WRIC No. 3000065 of 2007 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.

33. The Apex Court again in the case of Brijendra Singh v. State of U.P. (1981) 1 SCC 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 19 WRIC No. 3000065 of 2007 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 20 WRIC No. 3000065 of 2007 “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. x x x

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 21 WRIC No. 3000065 of 2007 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 subsection (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 22 WRIC No. 3000065 of 2007 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 transfer question effected 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 necessity. Although proof of the fact that a transfer was made for a valid pressing necessity may 23 WRIC No. 3000065 of 2007 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 24 WRIC No. 3000065 of 2007 requirement of proving pressing necessity for the transfer before the tenure holder is entitled to the benefit of the aforesaid proviso (b).

34. 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."

26. In light of the aforesaid, it is clear that where Munna who claimed separate right on the basis of the Will, Smt. Ram Kunwari and Smt. Phool Kunwari who are admittedly were the Sali (sister-in-law) of Raja Bux Singh, per se, their land could not be treated as land of Raja Bux Singh unless there was some cogent material to indicate that Raja Bux Singh continued to be its benami holder. However, this is not the case."

31. As per the aforesaid dictum in Ajai Pratap Singh (supra), it would reveal that it is not sufficient to discard a document of a sale-deed merely because it is executed post the cut off date. There must be consideration of the evidence and material upon which a sustainable finding can be recorded that the document is not bonafide.

32. Suffice it to state that such consideration is conspicuously absent from the impugned order dated 17.05.2007, hence, this reasoning of the Appellate Authority holding that the sale-deed dated 09.07.1976 bad or not bonafide cannot be sustained.

33. Insofar as the second reasoning adopted by the Appellate Authority is concerned, if examined, would reveal that there is no consideration of the fact as to when and how much area was inherited by Ram Rakhan from Smt. Chandrika Devi. This is important for the reason that as noticed above, the sale-deed dated 09.07.1976 had been executed, hence, on that date, the land available with Ram Rakhan was apparently within the ceiling area, which was further reduced by the area sold out by Ram Rakhan by the sale-deed dated 09.07.1976 in favour of Bansi Dar. Thereafter, with this residue how much and when the share of Smt. Chandrika Devi was inherited would be seen and thereafter again it will 25 WRIC No. 3000065 of 2007 have to be noticed as to what was the nature of the said land that is to say irritated or non-irrigated and who were the family members of Ram Rakhan and how much land was available to determine the actual land in the hands of Ram Rakhan and only thereafter the proper ascertainment could be made whether the land available with the petitioner breached the ceiling limit or not, needless to say, even this consideration is not present in the impugned order.

34. It is also reiterated that this was a consideration which ought to have been made by the Appellate Authority especially when it was directed by the High Court to be undertaken by the Appellate Authority vide its order dated 04.01.1989, hence, for this reason as well, the order passed by the Appellate Authority cannot be sustained.

35. For all the aforesaid reasons, the impugned order dated 17.05.2007 cannot be sustained and is patently arbitrary. Accordingly, it is set aside. The issue in question required to be considered in light of the observations made including it is noticed that a fresh order be passed by the Appellate Authority within a period of six months from the date, a certified copy of this order is placed before the Appellate Authority. It is also stated that no fresh evidence would be permitted to either of the parties and on the material already available, the Appellate Authority shall pass an order.

36. With the aforesaid, the petition is allowed. There shall be on order as to costs. October 10, 2025 Rakesh/- (Jaspreet Singh,J.) RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench