- (1.) SHISHIR Kumar, J. The petitioner has approached this Court for issuing a writ of certiorari quashing the order dated 15. 11. 1990, passed by respondent No. 2 in Appeal No. 11 of 1989-90, Annexure-7 to the writ petition.
(2.) A notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act (in short the Act) was served upon the petitioner calling upon him to show cause as to why the area of 2. 64 acres be not declared as surplus land under the provisions of the Act. In the aforesaid notice the total holding of the petitioner was shown as 20. 66 acres and permissible area of the petitioner was shown as 18. 02 acres It has been stated that the holding of respondent No. 3 was also clubbed by the prescribed authority. An objection to that effect was filed by the petitioner that the notice is wrong as there are five members in the family of the petitioner. It was also stated in the objection that Smt. Chaman Deye is not the family member of the petitioner. Further it was stated that during the consolidation operation the plot number has been changed and the notice has been given only on the basis of old plots. It has further been stated that the land which belongs to the petitioner is under the limit of ceiling area and it is not beyond the limit. A further objection was taken by the petitioner that khasra No. 4 has wrongly been included in the holding of the petitioner. The father of the petitioner Sri Deen Dayal Singh was the bhoomidhar with transferable right and has executed a Will in favour of Smt. Chaman Deye in his life time on 2. 9. 1983 and during consolidation, the name of respondent No. 3 was mutated in place of Sri Deen Dayal Singh on the basis of aforesaid Will. Therefore, the holding of Smt. Chaman Deye has wrongly been included in the holding of the petitioner. Respondent No. 3 Smt. Chaman Deye has also filed her objection before the prescribed authority. The parties led their evidence and filed various documents showing therein that the Will was executed in favour of respondent No. 3 by Sri Deen Dayal Singh and respondent No. 3 is the exclusive tenure holder in possession of the land in dispute. The prescribed authority after considering all the relevant records has accepted the objection of the petitioner and has quashed the notice issued by the competent authority that the petitioner is not having any land excess to the ceiling limit. It appears that the respondent-State was aggrieved by the order passed by the prescribed authority dated 20. 12. 1989, as such, filed an appeal before the appellate authority under Section 13 of the Act. The appellate authority without considering the relevant finding and documents has recorded a finding that the Will has been executed by Sri Deen Dayal Singh in favour of respondent No. 3 with a mala fide intention only to save the land from ceiling. A finding to this effect has also been recorded that everybody was aware regarding the cut-off-date i. e. , 24. 1. 1971, therefore, it cannot be presumed that Sri Deen Dayal Singh was not having knowledge of the cut off-date and only to save his land, the Will has been executed in favour of the mother of the petitioner by father. The appellate authority has allowed the appeal by order dated 15. 11. 1990. Aggrieved by the aforesaid order, the petitioner has approached this Court.
(3.) SRI Anil Sharma, learned counsel for the petitioner has submitted that the Will was executed on 2. 9. 1983 by the husband of respondent No. 3 and no notice was ever given to the petitioner under Section 10 (2) of the Act. It was only on 1. 6. 1986 that the notice was issued to the petitioner under Section 10 (2) of the Act. Therefore, it cannot be presumed that the Will was executed only to save the land from the ceiling. A finding to this effect recorded by the appellate authority that after execution of Will in favour of respondent No. 3 SRI Deen Dayal Singh died after five days, therefore, it clearly goes to show that the document is not a bona fide document and has been executed only to save the land from the ceiling limit. Reliance has been placed upon a judgment of this Court in State of U. P. v. Special Additional District and Sessions Judge, Farrukhabad, 1984 ALJ 560. Placing reliance upon the aforesaid judgment learned counsel for the petitioner Sri Anil Sharma has submitted that the Hon'ble Court has held that share of mother cannot be clubbed with the share of tenure holder. Reliance has been placed upon paras 3 and 4 of the said judgment which are quoted below: "3. The controversy is a short one. Aditya Narain Singh's father Roop Singh was possessed of landed property including some sir and khudkasht. He died in 1950 leaving behind his son Aditya Narain and his widow Smt. Davendra Kumari, who is respondent No. 4 in this petition. A contention was raised before the prescribed authority that in the sir and khudkasht which was left by the late Sri Roop Singh, his widow Davendra Kumari had an equal share alongwith her son Aditya Narain Singh. This contention was based on Hindu Women's Right to Property Act, 1937, as amended by the U. P. Act No. 11 of 1942. This contention was rejected by the prescribed authority. But was accepted by the appellate court. 4. Learned chief standing counsel contended that the mother's share should have been clubbed with the share of her son Aditya Narain, who was treated as a tenure holder. He invited my attention to the definition of 'family' in Section 3 (7) and to the definition of 'tenure holder' in Section 3 (17) of the Act. In my view, this contention is not tenable. Learned counsel emphasized that in Section 3 (17) the expression used in Cl. (a) is "woman" and not the 'wife'. In my view this is really not decisive because the further phraseology used is "a woman whose husband is a tenure-holder". This makes it clear that by the expression 'woman' what is meant is the wife of the tenure-holder-husband. In Section 3 (7) the definition of the family is such that the mother of a tenure-holder is not a member of the family. The clubbing which takes place under Section 5 (3) of the Act is with reference to the family. Therefore, the contention that the mother's share also should have been clubbed with the tenure-holder sons' share is not acceptable. The appellate court's judgment, in my view, suffers from no error of law, much less an apparent error of law. There is no want of jurisdiction in the said judgment. ";