HANUMAN PARSHAD Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE only point involved in the case relating to the assessment of holding under the Haryana Ceiling and Land Holdings Act is whether a decree suffered by a landlord where he accommodated, the claim to daughter through a decree could operate as a bona fide transfer to keep out of reckoning for the determination of the holding under the Act. Section 8 protects bona fide transfers and makes possible for a reckoning of property after making provision for acquisition of property by the State or properties that were transferred before particular dates or properties that went by inheritance. A transfer which the law contemplates shall be a transfer which is legally recognizable. The manner Hanuman Parshad was contending was that the daughter had secured a decree through a suit instituted before the commencement of the Act and a decree that was passed subsequently on 21.08.1972 that was prior to the date when the Act was promulgated. The Collector upheld the claim of the landlord and declared only 129 kanals 1 marlaas surplus. The order passed by the Collector was maintained both by the Commissioner and the Financial Commissioner. The Financial Commissioner while exercising his revisional jurisdiction under Section 18(6) brought the land claimed by the daughter into the holding of the landlord to deny an exclusion and made the computation for determination of surplus. Learned counsel appearing on behalf of the petitioner would contend that the landlord could not be imputed with any knowledge of an Act that was going to be passed in December, 1972 and a decree which the daughter had obtained against him must be taken as bona fide transaction and that it involved a transfer. I reject this argument as legally untenable. A decree cannot transfer right in the property. It could only acknowledge and declare the right which already existed. If a decree was to transfer a property then the validity to such a transfer could obtain only through registration of the decree, for Section 17 of the Registration Act requires registration of any instrument that purports to transfer right in immovable property of whose value is more than Rs. 100/ -. Admittedly, the decree was not registered. There is no question of a transfer being effected by the landlord suffering a decree in suit instituted by the daughter. There could have existed no pre -existing right for a daughter to secure to herself a right to be predicated in her favour specifically for a particular extent. Instances have been where a customary Hindu law under Mitakshara recognizes the right of father to give properties at the time of marriage or provide for pre -nuptial settlement which is more an exercise of custom which a father could do or if he chooses not to do, there would exist no enforceable right for the daughter to secure such a gift. A father willingly suffering a decree against the daughter in a suit instituted by her must only be taken as a collusive action and cannot partake the character of bona fide transfer that would exclude the holding under the provisions of the Act.

(2.) THE order passed by the Financial Commissioner was perfectly justified and I find no reason for interference. The writ petition is dismissed.