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1966 DIGILAW 18 (ALL)

Kallu v. Naththu

1966-01-13

SATISH CHANDRA, V.BHARGAVA

body1966
JUDGMENT V. Bhargava, J. - These two connected writ petitions arise out of proceedings under the U.P. Consolidation of Holdings Act. They have been referred to a Division Bench by a learned Single Judge. 2. In the first petition No. 1647 of 1960 the petitioner sought the issue of a writ of certiorari to quash the order of the Deputy Director of Consolidation by which he had set aside the order made by the Settlement Officer, Consolidation granting an ex post facto permission to a deed of gift under Sec. 16(A) of the U.P. Consolidation of Holdings Act, as it was in force at the relevant time. By the second petition the same petitioner seeks the quashing of an order by which the Consolidation authorities have directed the mutation of the name of opposite-party Nathu over a chak which originally belonged to one Prabhu and from whom the petitioner was claiming the chak on the basis of the deed of gift which was the subject-matter of the permission referred to above. 3. Admittedly the deed of gift relied upon by the petitioner Kallu was executed on 17th September 1958 and on the same day the executant of the deed of gift Prabhu presented an application for permission to make the gift. That application was, however, not disposed of even in the life time of Prabhu and ex post facto sanction to the making of the gift was granted by the Settlement Officer Consolidation, by his order dated 14th December 1959. It is this order granting the permission which has been set aside by the Deputy Director by the impugned order dated 27th May, 1960. 4. The order granting permission was set aside by the Deputy Director on the ground that the Settlement Officer, Consolidation acted illegally in granting expost facto permission to the transfer by the deed of gift which had already been executed earlier. The decision given by the Deputy Director of Consolidation on the face of it was perfectly correct. Under Sec. 16(A) (1) the legislature very specifically made the provision that there shall be no transfer by way of sale, gift or exchange except with the permission in writing oil the Settlement Officer Consolidation previously obtained. The words "previously obtained" having been used. Under Sec. 16(A) (1) the legislature very specifically made the provision that there shall be no transfer by way of sale, gift or exchange except with the permission in writing oil the Settlement Officer Consolidation previously obtained. The words "previously obtained" having been used. It is clear that the legislature made it a condition precedent to the validity of a sale, gift or exchange that the permission must be obtained before the document bringing about the transfer is executed. It is true that under sub-Sec. (2) of Sec. 16(4) the Settlement Officer is directed give permission in all cases unless for reasons to be recorded in writing he feels satisfied that the proposed transfer is likely to defeat the scheme of consolidation. The learned counsel has urged before us that in the present case Prabhu had transferred the whole of the chak allotted to him by the deed of gift in favour of the petitioner and consequently this transfer was not likely to defeat the scheme of consolidation and the Settlement Officer Consolidation was bound to grant permission. The fact that after an application had been made to the Settlement Officer for permission, before the execution of the deed of gift, he would have been bound to grant the permission, does not mean' that subsequent permission granted by him will validate the deed of gift, or that the Settlement Officer, Consolidation would have any power vested in him to grant ex-post facto sanction. In considering the effect of the words "previously obtained" in sub-Sec. (I) of Sec. 16 we have to take into account all possible situations that may arise apart from a situation like the present where the whole chak was being transferred. There can be numerous cases where persons desiring to transfer land may execute deeds of transfer in respect of a few plots in the chak or even part of plots or shares in the plots. In such cases the transfer would very likely defeat the scheme of consolidation, and, it seems that it was for this purpose of avoiding such a situation that the legislature allowed it only with the permission in writing of the Settlement Officer, Consolidation, which must be previously obtained, i.e. must be obtained before the deed of transfer is executed. In such cases the transfer would very likely defeat the scheme of consolidation, and, it seems that it was for this purpose of avoiding such a situation that the legislature allowed it only with the permission in writing of the Settlement Officer, Consolidation, which must be previously obtained, i.e. must be obtained before the deed of transfer is executed. The effect of the words "previously obtained" must, therefore, be held to be mandatory and, in fact if the legislature did not think it necessary that in all cases the permission must be previously obtained, the words could conveniently have been omitted from this provision of law without otherwise affecting its scope. The words "previously obtained" cannot be held to be mandatory in some cases and merely directory in other cases. The language of the section is open to no other interpretation except that any transfer by way of sale, gift or exchange will be invalid unless the permission in writing of the Settlement Officer, Consolidation is previously obtained, so that any permission granted subsequently will be of no avail and for the purposes of Sec. 16(1) be without jurisdiction. In the circumstances, the order issued by the Deputy Director, cancelling the ex-post facto sanction by the. Settlement Officer, Consolidation was perfectly correct. All that the Deputy Director did was to set aside the order granting permission which the Settlement Officer, Consolidation had no jurisdiction to do, after the deed of gift had already been executed. Clearly, therefore, writ petition No. 1647 of 1960 has no force at all. 5. So far as the second petition is concerned; once it was held that the deed of gift was invalid, it is clear that the petitioner could claim no title to this land, because the only basis of the title claimed by the petitioner was the deed of gift. That deed of gift being invalid, the petitioner could not seek mutation and the order made by the Consolidation authorities to the extent that they refused the prayer of the petitioner for mutation of his name was perfectly correct. The petitioner having no title, we think it is not for him to come to this Court to challenge the order directing mutation of the name of Nathu on the basis of the earlier will executed by Prabhu on 8th July, 1958. 6. The petitioner having no title, we think it is not for him to come to this Court to challenge the order directing mutation of the name of Nathu on the basis of the earlier will executed by Prabhu on 8th July, 1958. 6. In any case, the Consolidation authorities found that will to be proved. The only contention on behalf of the petitioner was that that will had been revoked by this deed of gift. The condition of revocation of a will requires execution in the same manner as a deed of will itself. It appears from the judgment of the Consolidation authorities that before them the petitioner did not urge that this deed of gift was a deed of revocation of the will. The case that was being put forward was that the property having been received by the petitioner as a donee under the deed of gift, it could not subsequently pass under the will. The petitioner having not tried to prove that the deed of gift was executed in the manner in which a deed of revocation has to be executed the Consolidation authorities were right in ignoring this deed of gift and giving effect to the will. 7. Both the petitions, therefore, fail and are dismissed with costs. Petitions dismissed.