SUJAN SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) This petition arises out of the proceedings under the U. P- Imposition ot Ceiling on Land Holdings Act, 1960.

(2.) In brief, the facts are these; The notice under Sec. 10 (2) was issued to the petitioner and he filed objections. The objections were decided by the prescribed Authority and thereafter an appeal was filed in the appellate court below. The appeal was heard and was thereafter dismissed. Now, the petitioner has come up in the instant petition and in support thereof, I have heard the learned counsel for the petitioner Shri B. Dixit. The learned Standing Counsel has been heard in opposition. Counsel contended before me that the family settlement dated 13th May 1972, should have been accepted and Sec. 5 (7) is not applicable to the same because it was not a partition. It seems to me that this contention is not correct. Partition is very often by way of family settlement and in such transaction co-sharers or co-owners sometimes do not insist on their strict shares and with a view to make tor family peace, they agree upon unequal shares. However, it cannot be contended that merely because a document is described as a family settlement, therefore, it cannot be treated as a partition when the transaction actually leads to a partition. In the instant case, a copy of the alleged family settlement has not been annexed and in such situations it cannot be said that the family settlement could not be treated as partition. The document is post 24th Jan., 1971, and treated as a partition, the Prescribed Authority was bound to ignore it. However, Shri Dixit contends that it is a requirement of Sec. 5 (7) that if such a deed is ignored on the ground of being post 24th Jan., 1971, it is a pre-requisite for the exercise of such a decision on the part of the Prescribed Authority that he should indicate what according to him would be the normal share ot every oo-owner or co-sharer in the holding. Learned counsels contention is that according to the correct interpretation of Sec. 5 (7), the subsequent deed is to be ignored only to the extent that the same deviates from the correct and normal share according to the prescribed Authority. In this view of the matter, the prescribed Authority was required as a matter of law to have gone into the question as to what was the respective share of each of the members of the family in the land and in the absence of such a finding, the order of the prescribed Authority and the judgment of the lower appellate court are bad in law. I have anxiously considered this contention but. in my view, the important point is that the prescribed Authority has to decide the objections and is not called upon to do any exercise suo motu such as is contended for by the learned counsel for the petitioner. A copy of the objections filed under Sec. 10 (2) has not been annexed to the petition. However, from the order of the prescribed Authority it is obvious that the contention was that there was a family settlement on 13th May, 1972 and the same should have been accepted. On that basis issues Nos. 2 and 3 were framed and both are in reference to the said family settlement. It is true that in the judgment of the lower appellate court a reference has been made to some earlier family settlement but it is not clear what the same was about, in the normal course, if a tenure-holder is issued notice under Sec. 10 (2) and his objection is that certain plots have been included in his holding which are not recorded in his name or even though which are recorded in his name have really gone out oi his holding due to certain other persons having acquired interest therein or on the ground that he is not the sole tenure-holder of the plots which are sought to be included in his holding but that his name is recorded in the representative capacity, say, as the head of the family where the other members of the family have shares by birth then all these objections are considered by the prescribed Authority. In the instant case, the only objection was that the family settlement of 13th May, 1972, should have been given effect to. I do not think that merely on the basis of this objection, the prescribed Authority was called upon suo motu to have entered into the question of the normal share of each member of the family. The interpretation which learned counsel has placed on Sec. 5 (7), I regret to say, is not acceptable to me. The said provision says that any partition made after 24th Jan., 1971, would be ignored and the calculation of the surplus land shall be made as if the said partition had not been effected. While ignoring the document which is post 24th Jan., 1971, the court can only be expected to enter into the question of the share of the tenure-holder and the share held by every other member in the family if there be any objection to the effect that the plots stand recorded in the name of the tenure-holder not in his individual capacity but in his capacity as head of the family therefore the necessary evidence will have to be led. As it is, I do not find any issue in the order of the prescribed Authority which would have warranted the treatment of the controversy in the said manner. The issues were confined merely to the document which was a post 24th Jan., 1971, and again I hold that merely by calling upon the court to decide the effectiveness of such a document tenure-holder cannot seek an adjudication from the court on the question of the respective shares of the members of the family. For the said purpose necessary foundation will have to be laid in the objection and necessary issues will have to be framed. In this view of the matter, I do not accept the learned counsel for the petitioners contention and reject same.

(3.) I,earned counsel wanted to question the constitutionality of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 but in view of the decision of the Supreme Court reported in D. G. Mahajan Vs. State of Maharashtra (AIR 1977 SC 915) the contention is not open to the learned counsel.