GIRRAJ 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 usual notice under section 10 (2) was issued to the petitioner's father, Shri Bankhandi. He filed objections and the Prescribed Authority dealt with the said objections and disposed of the same. Thereafter an appeal was filed by the petitioner's father and the appeal was decided by the appellate court below. It seems that in view of the amendment of the Act a second notice was issued to the petitioner's father and again the same course was repeated. The petitioner's father, Shri Bankhandi, is alleged to have died on 10th March, 1976. Thereafter a notice under section 10(2) was issued to the petitioner as the son of the deceased tenure-holder. The petitioner filed his objections and the same were dealt with and disposed of by the Prescribed Authority. The petitioner thereafter filed an appeal to the appellate court below and the appeal was dismissed by the said court. Now, the petitioner his come up in the instant petition. In support thereof I have heard the learned counsel for the petitioner, Shri S. V. Goswami. The only question which was pressed in the appellate court below related to the effect of a Will which was alleged to have been executed by the petitioner's father on 31st January, 1976 bequeathing 19.33 acres of land of plot No. 1357 in favour of the mother of the petitioner. The Prescribed Authority rejected the said Will and the appellate court also affirmed the finding of the Prescribed Authority. Shri Goswami contends that in view of section 29 (a) only that part of the land of the deceased tenure-holder, namely, the petitioner's father, could be said to have come to the petitioner by succession which was not covered by the said Will. In other words, the land which was bequeathed by the Will dated 31st January, 1976, could not be said to have come to the petitioner by succession after the death of his father. In this view of the matter, learned counsel contends that the appellate court below was incorrect in treating the Will as transfer under the ceiling law. Counsel's point is that the appellate court below has really not appre ciated the true legal position. I have considered this submission and, in my view, the appellate court below was not justified in invoking the provisions of the ceiling law which speak of transfer of land made after 24th January, 1971. Will is certainly not a transfer under the Transfer of Property Act and the position is no different under the Ceiling law. However, the important point is that the significant date for the determination of the ceiling area under section 5 is the date when the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 came into force. The said date is admittedly 8th June, 1973, and the same is fundamental to the application of the determination of surplus land in the hands of a tenure-holder. When this fundamental aspect of the matter is remembered then it will be seen that it was not open to the petitioner's father to have changed the position of the surplus land in his hand by a subsequent Will which was said to have been executed on 31st January, 1976. If such a course were permissible, it would mean almost a complete nullification of the provision contained in section 5. It is not disputed that if the determination had been made in the hands of the petitioner's father himself then the subsequent Will or any other instrument executed by him after relevant date would have been of no consequence in determining the ceiling area in his hands on the relevant date. THIS funda mental position cannot be allowed to be changed merely because the petitioner's father died on 10th March, 1976, before which date he is alleged to have executed the Will. It cannot be said that the son inherited only the land which is not covered by the Will because such a course will be fundamentally opposed to the provisions of section 5. No instrument whether by way of Will or any other instrument can have any validity which nullifies the mandatory provisions contained in section 5. Therefore, I reject the contention raised by the learned counsel. Certain other questions were also sought to be raised by Shri Goswami by way of petitioner's rights in certain plots of the land on account of his birth before the abolition of Zamindari but these questions cannot be allowed to be raised as they were never raised either before the Prescribed Authority or before the appellate court below. The appellate court below has clearly stated that the only question which was raised before the court was that relating to the aforesaid Will. THIS position accordingly fails and is dismissed but in the circumstances there shall be no order as to costs.