Hanumant Singh v. State Of Uttar Pradesh — 1978 DIGILAW 990 (ALL)

JUDGMENT K. P. Singh, J. 1. THIS writ petition arises out of proceedings under Section 10, sub-clause (2) of U. P. Imposition of Ceiling on Land Holdings Act. The petitioner was served with a notice to show cause why 38.88 acres irrigated land may not be declared as surplus area. The petitioner had filed an objection with the allegation that Smt. Bari Dulaiya was not a legally married wife and the land standing in her name was wrongly treated as the land of the petitioner, hence the surplus area indicated in the notice was patently wrong. Another material objection raised on behalf of the petitioner-objector was that he had transferred some plots through registered deed for adequate consideration and the sold land has been wrongly included in the ceiling limit of the petitioner. The petitioner had raised other objections also which are not material for the purposes of the present writ petition. The Prescribed Authority through its judgment date 30th June, 1976 declared 38.38 acres land of the petitioner as surplus area.' Aggrieved by the decision of the Prescribed Authority the petitioner had preferred an appeal which was also dismissed by the appellate authority through its judgment dated 29-11-1976. Thereafter the petitioner has come up to this Court under Article 226 of the Constitution and the learned counsel for the petitioner has challenged the judgment of the appellate authority on the following grounds:- Firstly according to the learned counsel for the petitioner the appellate authority has committed an error apparent on the face of the record in ignoring the sale deed dated 12-4-1972 on erroneous grounds. The appellate authority has ignored the oral evidence on the record while ignoring the sale deed dated 12-4-1972. Secondly the learned counsel for the petitioner has contended that there was no legal marriage between the petitioner and Smt. Bari Dulaiya, hence the land standing in the name of Smt. Bari Dulaiya was wrongly treated as the land of the petitioner and thus the determination of surplus area of the petitioner stands vitiated in law. 2. LEARNED counsel for the State has refuted the contentions raised on behalf of the petitioners. He has submitted that the transfer deed relied upon by the petitioner is of later date than 24th January, 1971, hence it was rightly ignored by the ceiling authorities. 2. LEARNED counsel for the State has refuted the contentions raised on behalf of the petitioners. He has submitted that the transfer deed relied upon by the petitioner is of later date than 24th January, 1971, hence it was rightly ignored by the ceiling authorities. He has further submitted that the petitioner and Smt. Bari Dulaiya were living as husband and wife for sufficiently long time, hence the land standing in the name of Smt. Bari Dulaiya was rightly treated as the land of the petitioner. I have examined the contentions raised on behalf of the parties. 3. THE appellate authority has dealt with the grievance of the petitioner with regard to the sale deed dated 12-4-1972 as below :- "The first is a transfer of 32.57 acres of unirrigated land on 12-4-72 by the appellant. These transfers which are seven in number were made by registered deed and it is argued on behalf of the appellant that since these transfers are bona fide and for consideration they should be ignored and the ceiling area determined after excluding them. The spirit of the Act is that all transfers made after 1971 are to be treated as void because there is a presumption that they were made primarily to evade the law. It is only in exceptional circumstances that they can be considered, on the face of it therefore, a presumption would arise that they are void and they were made only to get out of the clutches of the law. The onus was thus very heavy on the appellant to prove that they were really bona fide. For this it was necessary for him to show that there was any pressing necessity to transfer the same. There is however, no such evidence on record. Moreover the genuineness of these transfers is not in question before me. The only thing done by the State is that that area has been included for the purpose of determining the ceiling area of the appellant. The contention was thus to my mind rightly repelled by the Prescribed Authority." 4. There is however, no such evidence on record. Moreover the genuineness of these transfers is not in question before me. The only thing done by the State is that that area has been included for the purpose of determining the ceiling area of the appellant. The contention was thus to my mind rightly repelled by the Prescribed Authority." 4. LEARNED counsel for the petitioner has invited my attention to sub-clause (6) of Section 5 of U. P., Imposition of Ceiling on Land Holdings Act, which runs thus :- "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." Learned counsel for the petitioner has emphasised that in the present case the sale deeds were for adequate consideration and irrevocable instrument, not being benami transactions or for immediate or deferred benefit of the tenure-holder or other members of his family, hence the ceiling authorities have committed patent mistake in ignoring the safe deeds executed by the petitioner. In the present case I find that the appellate authority has not discarded the sale deed on the ground that the transaction was through revocable instrument or was benami transaction or for immediate or deferred benefit of the tenure holder or other members of the family. 5. IT appears that the appellate authority is under the impression that as the tenure-holder had failed to show any pressing necessity for transferring the plots hence the transfer made by him was not bona fide. I do not think that the approach of the appellate authority is correct in the circumstances of the present case. 5. IT appears that the appellate authority is under the impression that as the tenure-holder had failed to show any pressing necessity for transferring the plots hence the transfer made by him was not bona fide. I do not think that the approach of the appellate authority is correct in the circumstances of the present case. The appellate authority has examined the case as if the sale deed was challenged by a member of Joint Hindu Family on the ground that the Karta of the family had sold the property without any legal necessity. Even if there was no pressing necessity and a tenure holder had less than 40 acres land and he apprehended that the ceiling limit would be reduced by a subsequent Legislation and before the Legislation had been enacted, if he had transferred some of the plots, it cannot be said that he had acted in bad faith. If according to law prevailing on the date of the transfer deed executed by a tenure holder, the latter had not contravened any provisions of law or had executed the sale deed with a view to save himself from the clutches of coming Legislation no imputation of bad faith to him can be made. There is no provision under the U. P. Imposition of Ceiling on Land Holdings Act raising a presumption that if a transfer was made after 24-1-1971, it would be presumed for defeating the provisions of Ceiling Law. This is quite a different thing that if the transaction was made after 24-1-1971 it would be ignored under the provisions of Section 5 of U. P. Imposition of Ceiling on Land Holdings Act, but there is no such presumption under the Act that the transaction would be considered as for the purposes of evading the Ceiling Law. If the subsequent Legislation did not provide such a presumption the appellate authority has committed an error in raising such a presumption in the circumstances of the present case. 6. IN W. P. No. 12320 of 1975 D/- 22-2-1978 (Alld.)-Hari Om v. Addl. If the subsequent Legislation did not provide such a presumption the appellate authority has committed an error in raising such a presumption in the circumstances of the present case. 6. IN W. P. No. 12320 of 1975 D/- 22-2-1978 (Alld.)-Hari Om v. Addl. C. J. it has been laid down as below :- "What the 2nd Explanation to Sec. 5 (6) when it provides that burden of proving that the case falls under clause (b) of the proviso shall rest with the party claiming its benefit, really means is that it is for the tenure holder who claims the benefit under the clause to prove to the satisfaction of the Prescribed Authority such facts as would show that the transfer qualifies for exemption under the clause. The explanation does not cast any burden on the tenure holder to disprove facts which may take the transfers out of the ambit of cl. (b). Accordingly, the only burden placed by the section on a tenure holder is to prove to the satisfaction of the Prescribed Authority that the transfer made by him after 24th January, 1971 was a transfer made under an irrevocable instrument, in good faith and for adequate consideration. It casts no additional burden on him to disprove that the transfer in question was either benami or was for the benefit of the tenure holder or any other members of his family. Of course, if there is material before the Prescribed Authority either in the form of direct or circumstantial evidence to show that transfer even though it qualified for an exemption from the general rule, was in fact a benami transaction or that it had been made for the immediate or deferred benefit of the tenure-holder or other members of his family, it certainly can deny the benefit of clause (b) to the tenure-holder. However, what it cannot say is that even though the tenure holder has proved to its satisfaction facts which show that the transfer qualifies for benefit under clause (b) still the benefit under the clause cannot be given merely because the tenure-holder has failed to disprove either that the transaction in question was benami or that it was for the benefit of the tenure holder or other members of his family." In the present case the appellate authority has also observed as below :- "Moreover, the genuineness of these transfers is not in question before me. The only thing done by the State is that that area has been included for the purpose of determining the ceiling area of the appellants. The contention was thus to my mind rightly repelled by the Prescribed Authorsity." 7. IT appears that the appellate authority does not doubt the genuineness of the transfer deed dated 12-4-1972, but it has ignored the sale deed on the ground that the transaction did not appear to him as bona fide. According to roe the appellate authority appears to be under wrong notion of presumption under the Act IT has also failed to consider as to whether the tenure-holder had acted dishonestly or against the provisions of law when he transferred his land. 8. SECTION 4, sub-clause (17) of U. P. General Clauses Act 1904 defines "good faith" as below :- "a thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not." To my mind the transaction being in good faith contemplated by the provisions of U. P. Imposition of Ceiling on Land Holdings Act is a mixed question of law and fact. In the present case, I think that the appellate authority has not examined the bona fide nature of the sale deed dated 12-4-1972 executed by the petitioner from the correct angle and the appellate authority is under some wrong notion of presumption, hence its finding appears to me to be vitiated in the eye of law. It is necessary for the appellate authority to examine the case again and record a categorical finding as to whether the petitioner had sold the property on 12-4-1972 with dishonest intention. It is necessary for the appellate authority to examine the case again and record a categorical finding as to whether the petitioner had sold the property on 12-4-1972 with dishonest intention. Unless the finding recorded by the appellate authority is to the aforesaid effect the sale deed dated 12-4-1972 cannot be termed as not in good faith. 9. AS regards the second contention of the learned counsel for the petitioner it is proper for me to quote the finding recorded by the appellate authority which is as below :- "The other point is an interesting one. The appellant was married to Smt. Bari Dulaiya about 40 years back. There is also an area of 45 acres of land in her name. Here the facts are that Smt. Kamal Kunwar and Raj Kunwar were two sisters. The appellant is the grand-son of Kamal Kunwar while Smt. Bari Dulaiya is the grand-daughter of Raj Kunwar. It was argued on behalf of the appellant that the marriage of the appellant with Smt. Bari Dulaiya was void as she was within the prohibited degrees. Mulla's Hindu Law also cited to show that such marriages are void. I have gone through the book and also heard the arguments at length. I am not inclined to agree with the contention of the appellant for two reasons. The appellant has been married to Smt. Bari Dulaiya about 40 years back and they have lived as husband and wife since then. The doctrine of factum valet will apply. In the second place it is not for this Court to declare the marriage void or pass any judgment regarding the same. If the appellant really wanted he could file a suit in the proper court. To express any opinion regarding the validity of the marriage would be improper. The result is that Smt. Bari Dulaiya continued to be the wife of the appellant and the plots in her name were rightly included in the ceiling area of the appellant." 10. FROM the above extract of the judgment of the appellate authority it is evident that the appellate authority has applied the doctrine of factum valet to hold the marriage between the petitioner and Smt. Bari Dulaiya as valid and from that angle he has come to the conclusion that the land standing in the name of Smt. Bari Dulaiya was rightly treated as the land of the petitioner. The maxim factum valet quod fieri non debuit literally means "what should not be done, yet being done, shall be valid." The aforesaid principle is nothing more than an equitable principle. It is well known that equity yields to law. The aforesaid principle will apply only when the following conditions exist :- (a) that the marriage was performed between the persons of the same caste or belonging to the recognised sub-divisions of the said caste. (b) that the persons did not stand to each other as relations between the prohibited degree. (c) that the marriage was performed with the essential ceremonies including final ceremony of Saptapadi. 11. IN my opinion the appellate authority has committed an error apparent on the face of the record in applying the doctrine of factum valet to the facts of the present case and has wrongly held that Smt. Bari Dulaiya would continue to be the wife of the petitioner and the plots standing in her name were wrongly included in the ceiling area of the petitioner. If the area standing in the name of Smt. Bari Dulaiya is excluded from the ceiling limit of the petitioner's land, probably there would be no surplus area of the petitioner. 12. IN this connection the attention of the appellate authority is directed towards the ruling reported in Ram Harakh v. Jagarnath, 1932 All. page 5 as well as to the ruling Ashok Kumar Mandal v. Jitendra Nath Mandal, AIR 1955 Cal. 612 . If the marriage between the petitioner and Smt. Bari Dulaiya is void, it would not make the marriage valid in law even if the parties have continued to remain as husband and wife for a number of years. In the present case the parties became separate according to custom and the petitioner had married second time, yet the appellate authority has held Smt. Bari Dulaiya as the wife of the petitioner. In the present case the parties became separate according to custom and the petitioner had married second time, yet the appellate authority has held Smt. Bari Dulaiya as the wife of the petitioner. The Prescribed Authority has held that the parties are not within the prohibited degrees whereas the appellate authority has not recorded any categorical finding on the question as to whether the parties were within the prohibited decrees, it is desirable that the case may be sent back to the appellate authority for examining the aforesaid question and deciding the claim of the petitioner in the light of the observations made above that if the marriage between the petitioner, and Smt. Bari Dulaiya is within prohibited degrees, the doctrine of factum valet will not cure the defect. 13. FOR the reasons given above, the writ petition succeeds and the judgment of the appellate authority is hereby quashed and the appellate authority is directed to decide the question raised by the petitioner afresh in accordance with law. No order as to costs. Petition allowed.