RAJEEV KUMAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960. The facts in brief, are these.-The petitioner was issued a notice under section 10 (2) of the Act and he filed objections. The objections were decided by the Prescribed Authority. Thereafter, the petitioner filed an appeal before the District Judge, and the same was decided by the 5th Additional District Judge, Moradabad by his judgment dated 10th December 1977, a certified copy whereof is anneuxre 5 to the writ petition. The petitioner has now come up in the instant petition and in support thereof I have heard Shri K. M. Sinha, learned counsel for the petitioner. In opposition, the learned Standing Counsel has been heard. The controversy is in respect of a Will which was executed on 30th March, 1973, which was executed by Sahu Ram Kishore. The petitioner is admittedly the adopted son of the said testator. By the said Will certain dispositions were made. On 24th May, 1973 Sahu Ram Kishore died and subsequently on the basis of the said Will the necessary muta tions were made in favour of the legatees. Counsel brought it to my notice that the said Will was accepted in the earlier ceiling proceedings which took place be fore the instant ceiling proceedings which were started by the issuance of a fresh notice under section 10(2) of the Act in view of the amendment effected in the statute. The Prescribed Authority, however, in the instant ceiling proceedings did not accept the aforesaid Will dated 30th March, 1973 and the appellate court also rejected the said Will. The appellate court has given two reasons for rejecting the Will. Firstly, it was said that the said Will was an unregistered one whereby an earlier registered Will dated 21st February, 1968 was sought to be revoked. According to the appellate court an unregistered Will could not revoke an earlier registered Will. THIS obviously is not correct. It is well known that the registration of the Will is optional and a subsequent unregistered Will can certainly revoke the earlier registered one. The other ground on which the Will was not acceptable to the appellate court was that it was a transfer effected after 24th January, 1971 within the ambit of section 5(6) of the Act and, therefore, had to be ignored under the said provision. THIS view also seems to me to be incorrect. It seems to me that apart from the aforesaid provision, it is well established that a Will is not a transfer. It is well known that the Will confers no right of interest during the lifetime of the testator and it becomes effective only after the death of the testator. A transfer can only be effected during the life time of a person. However, the learned Standing Counsel placed reliance on clause (b) of Explanation I of section 5(6) which reads as under; "Any admission, acknowledgement, relinquishment or declaration in favour of a person to the life effect, made in any other deed or instru ment or in any other manner." In my opinion, it is not necessary to consider whether by a Will the testator is making an admission, acknowledgement, relinquishment or declaration in favour of the legatees because, I think, the controversy can be decided on the ground that the expression "to the like effect" occurring in this clause should be interpreted with reference to clause (a) of the said Explana tion. Clause (a) is in these words:- "A declaration of a person as a co-tenure-holder made after the twenty fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty fourth day of January, 1971.'' When these two clauses (a) and (b) are read together, it seems to me that the admission, acknowledgement, relinquishment or declaration about which clause (b) speaks must result in bringing into existence a co-tenureship such as is spoken in clause (a) of the Explanation. Will does not bring into existence any co-tenureship between the testator and the legatee. The effect of the aforesaid Will in question was that after the death of the testator dispositions took place in accordance the terms of the said document in favour of the persons named therein. However, no co-tenureship came into existence. In this view of the matter, it seems to me that Shri Sinha is right in contending that section 5(6) did not hit the aforesaid Will and the same, therefore, should have been accepted by the authorities and should not have been ignored, THIS petition accordingly succeeds to the extent and in the manner that the judgment of the appellate court below, a true copy whereof is annexure 2 to the petition, is hereby quashed to the extent that the Will dated 30th March, 1973, shall be accepted and the dispositions made therein shall be upheld and the case is remanded to the appellate court below with a direction that the petitioner's ceiling area and the surplus land shall be calculated in the light of this finding. No other controversy shall be allowed to be raised in the appellate court. In the circumstances, there will be no order as to costs.