S.U.Khan - (1.) -Heard learned counsel for the parties.
(2.) THIS writ petition is directed against judgment and order dated 13.11.1978 passed by III Additional District Judge, Hamirpur in Ceiling Appeal No. 526 of 1978, copy of which is Annexure 2 to the writ petition. The said Annexure does not contain any date. In the prayer clause of the writ petition, it is mentioned that the said judgment is dated 13.11.1978. Initially prescribed authority under Ceiling Act had passed the order on 29.6.1976 declaring an area of 44.43 acres of irrigated land as surplus land held by the petitioner under U. P. Imposition of Ceiling on Land Holdings Act 1960. The said order was modified to some extent by the appellate court. The main dispute in between the parties is regarding four gift deeds and one sale deed executed by the petitioner prior to 24.1.1971. Four gift deeds were executed by petitioner in favour of his grandsons and grand daughters on 24.1.1970, 31.1.1970 (two gift deeds) and 2.2.1970. Area covered by these four deeds was about 70 acres. The dispute is also in respect of sale deed executed in January 1970 by the petitioner in favour of his barber Dhani Ram area 3.27 acres. Courts below held that the said deeds were executed in contemplation of ceiling proceedings hence liable to be ignored. Sale deed executed by petitioner in favour of Smt. Vidya Kumari has been found to be bona fide and genuine. The said deed was also executed before 24.1.1971. The said finding in favour of the petitioner is confirmed. Prior to amendment of Ceiling Act with effect from 8.6.1973 agricultural land belonging to ex-rulers was exempted from the Ceiling Act. Petitioner is ex-ruler. However with effect from 8.6.1973 the said exemption granted under Section 6 (14) of the Act was withdrawn by deleting the said clause. The petitioner contended that as Ceiling Act itself was not applicable upon him in the year 1970 hence deeds executed by him in the year 1970 should be taken to be quite valid. This contention was rejected by the appellate court. Appellate court held as follows : "Therefore I am of the opinion that provisions appended to Section 5 (6) of the Act are applicable to the applicants." Section 5 (6) without Explanation is quoted below. (6) In determining the ceiling area applicable to a tenure holder, any transfer of land made after the twenty-fourth 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 : Provided that nothing in this sub-section shall apply to- (a) a transfer in favour of any person (including Government) referred to in sub-section (2) (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family."
(3.) THEREAFTER appellate court held that the grandsons and grand daughters to whom land was gifted by the petitioner were aged about 3, 2 and 5 years and all were minors at the time of execution of gift deeds. Appellate court opined that the petitioner was highly qualified person and he contemplated that Ceiling Act might be imposed upon his lands hence he as precautionary measure, settled his land with his grandsons and grand daughters to save his skin from the operation of the law which would come in due course of time. THEREAFTER appellate court held as follows : "Therefore the appellant made the benami transaction for his deferred benefit. According to Section 5 (6) (b) a transaction, proved to the satisfaction of the prescribed authority to be in good faith and adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family." (Sic) From the above it is quite clear that the appellate court judged the four gift deeds and one sale deed in favour of Dhani Ram on the touch stone of Section 5 (6) (b). In this regard appellate court was not correct. Section 5 (6) (b) deals with the transfer deeds made after 24.1.1971. Of course in certain circumstances even the deeds prior to 24.1.1971 may be ignored after holding them to be sham fictitious or collusive transaction. However some distinction has to be drawn in between the deeds prior to 24.1.1971 and after the said date. The same criteria which is applicable to post 24.1.1971 deed can not be applied to pre 24.1.1971 deed.;