M.B.Farooqi, J. - (1.) A notice under Section 10 (2) of the U. P.. Imposition of Ceiling on Land Holdings Act (shortly the 'Ceiling Act) was served on the petitioner. She filed objections and opposed the notice. One of the objections, with which I am concerned in this petition was that the petitioner had gifted a portion of her land to Ali Haider and Shamim Hasan by means of two registered gift deeds dated 19-6-1970 which were duly acted upon and were even given effect to in the Revenue records and, as such, the gifted land should be excluded from the petitioners holding while determining the ceiling area applicable to her. Ali Haider and Shamim Hasan, who were parties to the proceedings, supported the petitioners claim. The Prescribed Authority rejected the claim after holding that the gift deeds were not bona fide and were in fact executed in order to evade the ceiling law. On appeal, the Additional Civil Judge, Muzaffarnagar affirmed the finding. Hence this petition under Article 226 of the Constitution.
(2.) Section 5 (1) of the Ceiling Act lays down that with effect from 8-6-73 no tenure holder shall be entitled to hold any land in excess of the ceiling area applicable to him. Explanations I and II appended to this sub-section read as follows:- Explanation I - In determining the ceiling area applicable to a tenure-holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. Explanation II - If on or before Jan. 24, 1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the Prescribed Authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person." Cases are conceivable where the tenure-holder has transferred his land wholly or in part before 8-6-1973 and that the transfer, though validly made in accordance with the then prevailing law, was actually designed to defeat the Ceiling Act. The question is whether such a transfer is liable to be ignored under the Ceiling Act and if so, under what circumstances. If the transfer relates to the period succeeding 24th Jan. 1971, it will be liable to be ignored under subsec. (6) of Section 5 which provides that any transfer of land made after 24th day of Jan. 1971 shall be ignored and not taken into consideration unless it is proved to be in good faith and for adequate consideration. The problem arises if the transfer relates to the period prior to 24-1-1971. There is nothing in the Ceiling Act to suggest that want of bona fides or of adequate consideration shall be a ground for ignoring stich transfer. That surely does not mean that every transfer made before 24-1-1971 is liable to be taken into account, under the Ceiling Act. The principle applicable f0 such transfers is, however, slightly different. The principle has been set out in explanation I to sub-sec. (1) of Section 5. Explanation I says that land held by a tenure-holder ostensibly in the name of any other person is liable 1 o be taken into account for determining the ceiling area applicable to him. The suggestion clearly is that the transfer will be vulnerable only if it was an ostensible transfer. That would be so, if the transfer was never acted upon and not otherwise. Whether a transfer has been acted upon or. not is a question of fact depending upon various circumstances, for example, whether there was severance of possession and whether transfer has been given effect to in the revenue records. Explanation II to sub-sec. (1) of Section 5 enacts a rule of evidence, according to which if the transfer was made on or before Jan. 24, 1971 but the transferor continues to be in the actual cultivating possession of the land and the name of the transferee is entered in the annual register after Jan. 24, 1971, there is a rebuttable presumption that the transferor continues to hold the land ostensibly in the name of the transferee,
(3.) In the present case, the authorities below have acted' on the premises that even in respect of transfers made before Jan. 24, 1971 the guiding consideration should be, whether the transfer was motivated by a desire to evade the ceiling law and found that it was so in so far as gift deeds in question were concerned. The learned Civil Judge has even gone on record to say that this was the requirement of the law. In this, he has relied on Explanations I and II to sub-sec. (1) of Section 5. In view of what has been stated above both the Prescribed Authority and the learned Civil Judge have misdirected themselves. They have acted on legal premises which is clearly erroneous. The finding based upon such premises cannot be upheld and ought to be set aside.;