S.U.Khan - (1.) -Heard learned counsel for the parties.
(2.) THIS writ petition is directed against the order dated 31.3.1983 passed by Prescribed Authority, Fatehpur/Sub-Divisional Officer, Fatehpur under Section 10 (2) of U. P. Imposition of Ceiling on Land Holdings Act and order dated 7.5.1984 passed by Additional District Judge/Special Judge, Fatehpur in Ceiling Appeal No. 12 of 1983, which was directed against the order dated 31.3.1983. Aman Singh and Shiromani Singh were real brothers. Aman Singh executed a registered Will deed on 13.10.1978 in favour of grandsons of Shiromani Singh bequeathing them his agricultural land. Aman Singh died in 1979. Thereafter ceiling proceedings were initiated against Shiromani Singh. Prescribed Authority held the Will to be fictitious on the ground that it was executed to avoid the future ceiling proceedings which might be initiated against Shiromani Singh, The order was passed by the Prescribed Authority/S.D.O., Fatehpur in Case No. 14 of 1981 under Ceiling Act State v. Shiromani Singh on 31.3.1983. This view was endorsed by the appellate authority also in Ceiling Appeal No. 12 of 1983 which was dismissed on 7.5.1984 by Additional District Judge/Special Judge, Fatehpur. Both the courts below held that in case the Will had not been executed then the agricultural land of Aman Singh, who was issueless, would have devolved upon the petitioner, his real brother and in that eventuality petitioner would have possessed land in excess of ceiling limit. Both the courts below also held that Will having been executed after 24.1.1971 was liable to be ignored. Presumably this was held on the basis of Section 5 (6) of the Ceiling Act. The said section only deals with sale deeds. It has got no concern with the Will. Will operates after the death. If during his life time Aman Singh possessed surplus land, then execution of Will would not have made any difference. Ceiling Act does not preclude a person from executing a Will. If ceiling proceedings against Aman Singh would have been pending at the time of his death, then in that event his legatees would have been proceeded against, after his death. Therefore, Will cannot be ignored merely on the ground that in the absence of the Will the legal representatives of executant of the Will would have possessed excess land. The other point decided was regarding nature of plot No. 252-whether it was irrigated or unirrigated. However, it is not necessary to decide the said question. The ceiling proceedings against the petitioners were initiated after the death of Aman Singh on the ground that petitioner in fact got the property of his brother Aman Singh, Aman Singh had executed Will in favour of his grandsons, which was quite valid and which could not be ignored as held by me in the earlier part of this judgment. If the Will was valid and petitioner did not inherit any agricultural land of his brother Shiromani Singh, then ceiling proceedings could not be initiated against him. Consequently it is not necessary to decide as to whether the issue of nature of land of plot No. 252 has rightly been decided or not.
(3.) ACCORDINGLY writ petition is allowed. Both the impugned orders are set aside. However, there is one more aspect of the matter which requires to be noticed. Shrimoni Singh died either during pendency of appeal or immediately thereafter. Petitioner Nos. 1 and 2 are his sons and petitioner Nos. 3 to 6 are his grandsons/ legatees. Petitioners No. 3 and 4, Chandra Bahadur Singh and Monni Lal are sons of Phool Singh petitioner No. 2. Petitioners 3 and 4 were minor when writ petition was filed. They filed writ petition through their father and guardian. Similarly petitioner Nos. 5 and 6 Virendra Singh and Sunder Singh are sons of petitioner No. 1 Surjan Singh. They were also minors when the writ petition was filed and they also filed writ petition through their father, guardian. Even though the land held by the legatees/ grandsons of Surjan Singh, petitioners 3 to 6 could not be included in the holding of Shrimoni Singh their grand-father, however after the death of Shrimoni Singh his agricultural land must have been inherited by his two sons, i.e., Petitioners No. 1 and 2. For the ceiling purposes the land held by the legatees/petitioners 3 to 6 is to be included in the land of their fathers, i.e., Petitioner Nos. 1 and 2. After the death of Shrimoni Singh his sons petitioners 1 and 2 must have got his agricultural land. If land inherited by each of the petitioners 1 and 2 alongwith the land of the two minor sons of each of them exceeded ceiling then proceedings could be initiated against petitioners No. 1 as well as against petitioner No. 2 under Sections 29 and 30 of U. P. Imposition of Ceiling on Land Holdings Act, 1960. If it was so then State is at liberty to initiate ceiling proceedings against petitioner No. 1 as well as petitioner No. 2 within six months from today.;