Yadunath v. State — 1979 DIGILAW 95 (ALL)

JUDGMENT : H.N. SETH, J. 1. These two petitions under Article 226 of the Constitution have, on reference by a learned single Judge, been placed before us for making appropriate orders. Both the petitions arise out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act. Whereas, in view of an apparent conflict between two single Judge decisions of this Court in the cases of Ahmad Husain and Others Vs. State of U.P. and Others, (1978) AWC 299 and Hukum Singh v. State U.P. 1978 ALJ 291, the learned Judge has referred the whole case in writ petition No. 562 of 1977 to us for decision. He has, in writ petition No. 522 of 1977 formulated the following four questions of law and has referred the same to us for opinion: (1) Whether the ceiling authorities are precluded from examining the transfer deed or the decree which is prior to 24-1-1971 while determining the ceiling area of a tenure-holder? (2) Whether a tenure-holder if he has not sold his entire tenancy but has retained a small portion of the tenancy, the transfer deeds executed by him between 24-1-1971 and 8-6-1973 can be examined by the ceiling authorities while determining the ceiling area of the tenure-holder? (3) Whether the burden is upon the department to prove that a transaction executed by a tenure-holder is sham, fictitious or no transaction in the eye of law or the burden is upon the tenure-holder to prove its genuineness and bonafide nature with regard to the transaction prior to 24-1-1971. (4) How far explanations I and II to Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act control the provisions of Section 5 Sub-section (1) of the Act? As the nature of controversy involved in both the references covers common field, we propose to dispose them off by a common order. 2. Petitioners in writ petition No. 562 of 1977, which is directed against the judgment of the Civil Judge, Aligarh dated December 23, 1976 are Brij Bhushan Rathi, his four sons, Rekesh Kumar, Raghuwansh Kumar, Rasik Behari and Vishwa Behari and his daughter Kumari Aruna Rathi. It appears that notices u/s 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act were issued jointly in the names of the Petitioners and one Ram Swarup stating that out of total area of 48.71 acres of. It appears that notices u/s 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act were issued jointly in the names of the Petitioners and one Ram Swarup stating that out of total area of 48.71 acres of. irrigated land belonging to Petitioner Brij Bhushan Rathi, area of 15.85 acres i.e. 27 Bighas, 16 Biswas, 15 Biswansis was proposed to be declared as surplus. Sri Brij Bhushan Rathi filed an objection contending that he had by means of a gift deed dated 27th March, 1970 gifted 41 bighas, 17 biswas of land in Khata No. 37 to his two sons Rasik Behari and Vishwa Behari (Petitioner Nos. 4 and 5). In due course the donees got their names mutated and have been in possession of the land in their own right ever since then. Subsequently in partition suit No. 75 of 1972, the civil court passed a decree on 18th May, 1972 holding that Rakesh Kumari Petitioner No. 2 was owner in possession of 9 Bighas, 16 Biswas, 3 Biswansis of land. It also held that Raghuwansh Kumar was in possession of 19 Bighas, 16 Biswas, 2 Biswansis land and that Kumari Aruna Rathi Petitioner No. 6 owned and possessed 5 Bighas, 16 Biswas, 2 Biswansis of land. Tile objector also claimed that he had, by means of a registered sale deed dated 15-9-1971, sold an area of 4 Bighas, 13 Biswas and 6 Biswansis of land to one Sri Ram Swarup for valuable consideration amounting to Rs. 12,000/-and that in due course the name of Sri Ram Swarup also came to be recorded in the revenue papers in the year 1379 Fasti. Accordingly Sri Brij Bhushan Rathi was not a tenure-holder on 8th June, 1973 and no question of declaring any land as surplus arose. It was also claimed in the alternative that Brij Bhushan Rathi and his four sons were the co-tenure holders of the holding in respect of which notice has been issued to Brij Bhushan Rathi as the same had been their ancestral Sir and Khudkasht and that none of them possessed land in excess of the ceiling area applicable to him. 3. The Prescribed Authority vide its order dated 28th June, 1976 repelled the objections filed by Sri Brij Bhushan Rathi. 3. The Prescribed Authority vide its order dated 28th June, 1976 repelled the objections filed by Sri Brij Bhushan Rathi. It held that the land in question had been acquired by Sri Brij Bhushan Rathi himself and that his sons did not, on their own acquire any interest therein by birth. So far as the gift deed dated 7th March, 1970, whereby Sri Brij Bhushan Rathi transferred 41 Bighas, 17 Biswas of land to his two sons Rasik Behari and Vishwa Behari, was concerned it held that the transaction did not appear to be genuine. It appeared that Sri Brij Bhushan Rathi had executed the same in favour of his two sons with a view to escape the ceiling laws and that he had continued to hold the land and to remain in its actual possession in his own right. It also found that the decree for partition obtained by Sarvsri Rakesh Kumar, Raghuwansh Kumar and Kumari Aruna Rathi sons and daughter of Sri Brij Bhushan Rathi in suit No. 75 of 1972 on 12-5-1972 was a collusive decree. In fact throughout Sri Brij Bhushan Rathi had continued to remain in possession of the land and to hold the same in his own right. 4. Regarding the sale deed dated 28th December, 1971 executed by Sri Brij Bhushan Rathi in favour of Sri Ram Swarup in respect of 4 Bighas, 13 Biswas and 6 Biswansis the Prescribed Authority observed that as Petitioner No. 1 had failed to produce either the original sale deed or a copy thereof, it was not possible to accept the transaction merely because the name of Sri Ram Swarup stands recorded in the Khatauni. Alleged transfer of land in favour of Sri Ram Swarup did not appear to be bonafide and for adequate consideration. In the result, the Prescribed Authority ignored the gift deed dated 27th of March, 1970, sale deed dated 28th of December, 1971 and the partition decree dated 18th of May, 1972 and treating that entire holding as that of Brij Bhushan Rathi declared an area of 27 Bighas, 16 Biswas and 15 Biswansis land as surplus. 5. In the result, the Prescribed Authority ignored the gift deed dated 27th of March, 1970, sale deed dated 28th of December, 1971 and the partition decree dated 18th of May, 1972 and treating that entire holding as that of Brij Bhushan Rathi declared an area of 27 Bighas, 16 Biswas and 15 Biswansis land as surplus. 5. Being aggrieved by the order of the Prescribed Authority Shri Brij Bhushan Rathi and his sons Rasik Behari and Vishwa Behari went up in appeal before the Civil Judge, Aligarh who by a common judgment dated 23rd December, 1976 affirmed the findings recorded by the Prescribed Authority and dismissed the three appeals. Sri Brij Bhushan Rathi, his four sons Rakesh Kumar, Raghuvansh Kumar, Rasik Behari and Vishwa Behari and daughter Kumari Aruna Rathi have now approached this Court for relief under Article 226 of the Constitution. 6. Writ petition No. 522 of 1977 is by yadunath Singh and his four sons Sukhraj Singh. Ranvir Singh, Satyavir Singh and Rajvir Singh. This petition is directed against the judgment dated 30-10-1977 passed by the III Additional District Judge, Hamirpur in Ceiling Appeal No. 697 of 1976, whereby he set aside the order of the Prescribed Authority and sent the case back to it for fresh trial in accordance with the observations made by him in the judgment. 7. It appears that notice u/s 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act was served upon Sri Yadunath Singh requiring him to show cause as to why 61.18 acres of land belonging to him be not declared as surplus. Sri Yadunath Singh and his four sons filed objections. It was claimed that from out of the land which was being included in the tenure holding of Yadunath Singh, an area of 13.56 acres of land in village Kuankhera and an area of 8.43 acres of land in village Navaijar. Total area 29.17 acres had been gifted by Yadunath Singh and his brother Mrigraj Singh to the four sons of Yadunath Singh by means of a gift deed dated 5th September, 1967. In due course, names of the donees were mutated in respect of land in village Kuankhera in the year 1969 regarding land in village Mavijar order for mutation of name was made on 7-9-1967 but then it was actually carried out on 25-1-1971. In due course, names of the donees were mutated in respect of land in village Kuankhera in the year 1969 regarding land in village Mavijar order for mutation of name was made on 7-9-1967 but then it was actually carried out on 25-1-1971. Crucial question that arose for consideration in this petition was as to whether having regard to the circumstances of the case and the provisions contained in the U.P. Imposition of Ceiling on Land Holdings Act, the gift deed dated 5th September, 1967 executed by Yadunath Singh in favour of his four sons was, while computing the ceiling area applicable to him liable to be ignored. It is for the purpose of deciding this question that the learned single Judge has formulated the four questions mentioned above and has referred the same to us for opinion. 8. Before answering the specific questions referred to us in writ petition No. 522 of 1977 and dealing with the controversy involved in writ petition No. 562 of 1977 it will be convenient to deal with and understand the true scope of some of the provisions contained in the U.P. Imposition of Ceiling on Land Holdings Act. Relevant portion of Section 5 of the Act reads thus: 5(1). On and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh any land in excess of the ceiling area applicable to him. 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. 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 January 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. .... (6) In determining the ceiling area applicable to a tenure holder, any transfer of land made after the 24th 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).... (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 the immediate or deferred benefit of the tenure-holders or other members of his family. Explanation I: For the purpose of this Sub-section, the expression 'transfer of land made after the 24th day of January, 1971' includes (a) a declaration of a person as a co-tenure-holder made after the 24th day of January, 1971 in a suit or proceeding irrespective of whether such a suit or proceeding was pending of was instituted after the relinquishment or declaration in favour of a person to the like effect made in any other deed or instrument or in any other manner. Explanation II: The burden of proving that a case falls within Clause (b) of the proviso shall rest with the party claiming its benefit. Explanation II: The burden of proving that a case falls within Clause (b) of the proviso shall rest with the party claiming its benefit. (7) In determining the ceiling area applicable to a tenure-holder any partition of land made after 24-1-1971 which, but for the partition 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).... (b) A partition of a holding made in a suit or a proceeding pending on the said date provided further that notwithstanding anything contained in the preceding proviso the Prescribed Authority if it is of opinion that by collusion between the tenure-holder and any other party to the partition such other party has been given a share which he was not entitled to or a larger share than he was entitled to, may ignore such partition.... 9. According to Sub-section (1) of Section 5 no tenure-holder is, on and from 8-6-1973 entitled to hold land in excess of ceiling area applicable to him. The expression tenure-holder has been defined in Section 2(17) of the Act as meaning a person who is the holder of a holding. The words 'holder of a holding' are wide enough to include within their ambit all persons who actually hold land in their own right whether it be in their own name or ostensibly in the name of any other person. Accordingly, what Section 5(1) of the Act on its own and without the aid of a rule of interpretation laid down in any other provision, means is that a person who actually holds land in excess of the ceiling area applicable to him on 8th of June, 1973 whether in his own name or ostensibly in the name of some other person, he shall, thereafter be not entitled to hold such excess land. Explanation I to Section 5(1) does not purport either to add or to limit the normal meaning of the expression 'tenure-holder' as defined in the Act. It merely clarifies that when the ceiling area of a person who is a tenure-holder on 8th June, 1973 is being worked out all the land held by him in his own right shall be taken into account irrespective of the fact whether such land is held by him in his own name or ostensibly in the name of any other person. In our opinion, even if explanation I to Section 5(1) had not been inserted the result would have been just the same. The explanation appears to have been inserted by way of abundant caution so as to obviate a possible argument that even though a person actually holds land, it can still not be considered to be his holding because it stands recorded in the name of some other person. 10. Explanation II to Section 5(1) of the Act, however, lays down a rule of evidence which has to be borne in mind whenever a question as to whether a tenure-holder holds land ostensibly in the name of another person arises for consideration. Such question may arise either at the stage when it has to be determined as to whether or not a person is a tenure-holder on 8th June, 1973 or at the stage when the ceiling area applicable to a tenure-holder on that date is to be determined. Likewise in Sub-section (6) of Section 5 it has been provided that in determining the ceiling area applicable to a tenure-holder any transfer of land made after 24th day of January, 1971 which but for the transfer would have been declared surplus land under the Act shall be ignored and not taken into account unless it is proved to the satisfaction of the Prescribed Authority that such transfer was made in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of a tenure-bolder or other member of his family. This Sub-section does not purport to lay down any test for determining as to whether a person was or was not a tenure-holder on 8th of June, 1973. It comes into play only when the proceedings for determination of surplus land belonging to a tenure-holder are taken and lays down that transactions of the nature mentioned therein shall for the purposes of determining the ceiling area applicable to the tenure-holder are to be ignored and not taken into account. It comes into play only when the proceedings for determination of surplus land belonging to a tenure-holder are taken and lays down that transactions of the nature mentioned therein shall for the purposes of determining the ceiling area applicable to the tenure-holder are to be ignored and not taken into account. Explanation II to Sub-section (6) of Section 5 in effect provides for a rule of evidence by placing the burden of proving facts which entitles a party to claim that the transaction entered into by the tenure-holder after 24th of January, 1971 should not be ignored and should for purposes of determining the ceiling area, be taken into account on that party. 11. Section 9(2) of the Act enables the Prescribed Authority to issue a general notice calling upon every tenure-holder holding land on the enforcement of U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 in excess of the ceiling area applicable to him to submit within 30 days of publication of such notice, a statement in respect of all his holdings. A division Bench of this Court has vide its opinion dated 20-9-1978 in the case of Horam Singh and Others Vs. District Judge and Others, (1978) AWC 758 held that this section contemplates issuing of notice only to such a person who held land in excess of ceiling area on 8-6-1973. The section does not contemplate either issuing of notice of determination of ceiling area applicable to and determination of surplus land of any such person who was not a tenure-holder on 8-6-1973 and to whom the notice u/s 9(2) could not be addressed. As stated earlier, for determining as to whether a person to whom notice u/s 9(2) is issued was or was not a tenure-holder on 8-6-1973 the rule of evidence laid down by Explanation II to Sub-section (1) of Section 5 has to be and that contained in Sub-section (6) is not to be availed of. 12. After a general notice u/s 9(2) of the Act, calling upon ail tenure-holders who bold land in excess of ceiling area applicable to them on 8th June, 1973, to file statement about their land holding, has been issued, such tenure-holders may submit, statements which may either be complete in all respects or incomplete or incorrect in certain respects. 12. After a general notice u/s 9(2) of the Act, calling upon ail tenure-holders who bold land in excess of ceiling area applicable to them on 8th June, 1973, to file statement about their land holding, has been issued, such tenure-holders may submit, statements which may either be complete in all respects or incomplete or incorrect in certain respects. It may also be that some tenure-holders may neglect to file such statements even though they, may be holding land in excess of the ceiling area applicable to them. Sub-section (1) of Section 10 of the Act, therefore, authorises the Prescribed Authority to make such enquiry as he may consider it necessary either by himself or by any person subordinate to him and to get a statement containing such particulars with regard to the holding of tenure-holders as may be prescribed, prepared. What is to be mentioned in the statement has been prescribed in Form No. C.L.H. 3 which shows that amongst other things the statement has to disclose what according to the Prescribed Authority is the extent of irrigated and non-irrigated land, total area of land held by a tenure-holder on 8-6-1973 as also the area proposed to be declared as surplus. Section 10(2) of the Act then requires the Prescribed Authority to serve upon each tenure-holder a notice together with a copy of the statement prepared under Sub-section (1) calling upon him to show, cause within the period specified in the notice as to why the statement be not taken as correct. 13. When a notice u/s 10 is issued to a person in Form C.L.H. 3, it is for him to show either that he is not a tenure-holder or that a particular holding has been wrongly included in determining the ceiling area applicable to him. This be can do by bringing such facts to the notice of the Prescribed Authority on the basis of which it may either believe that the claim made by the person is correct or may consider its existence so probable that a prudent man should under the circumstances of the case act upon the supposition that what the objector says is correct. (Vide Section 3 of the Evidence Act). (Vide Section 3 of the Evidence Act). Once such circumstances are brought on the record it will be for the State which, in proceedings for determination of surplus land by the Prescribed Authority is a party to the proceedings to place before the Authority evidence of circumstances showing that the claim made by the objector is wrong or that the particulars mentioned in Form C.L.H. 3 are correct and the burden of proving such facts would in this sense shift to the State. It is well settled that subject to statutory rule of evidence once a party on whom initial burden lies places facts and circumstances which go to show that a prudent man should act upon the supposition that particular facts as claimed by him exist, he succeeds in discharging the same and the burden to disprove those facts shifts to the party which refutes their existence. We see no reason why, while dealing with the objections filed u/s 10 of the Act, same principle in regard to burden of proof should in absence of specific provision in that regard made in the Imposition of Ceiling on Land Holdings Act or any other law, be not applied. 14. In this view of the matter where a person claims that in Form C.L.H. 3 issued to him certain plots have wrongly been shown as a part of his holding, the initial burden of proving that he did not hold those plots on 8-6-1973 lies on him. He may discharge that burden by producing before the Prescribed Authority a copy of a registered sale deed showing that he had for some consideration, transferred the plots to a third party before 8-6-1973. He may discharge that burden by producing before the Prescribed Authority a copy of a registered sale deed showing that he had for some consideration, transferred the plots to a third party before 8-6-1973. In such a case unless there is something else oh the record a prudent man would act on the supposition that title to the plot covered by the sale deed was, before 8-6-1973 transferred to the third party and the person to whom the notice was issued had ceased to hold the same, Of course if there already is some material on the record or if additional material is placed by the State before the Prescribed Authority which may induce a reasonable person to act on the supposition that the sale deed is merely a sham transaction in the sense either that it was not really intended to be acted upon or to transfer title in those plots to the vendee and that the tenure-holder had in fact continued to be the owner of those plots, the Prescribed Authority can despite existence of such a sale deed proceed on the basis that property in the plot did not pass and that the objector continued to hold the same. Of course in a case which is covered by Explanation II to Section 5(1) of the Act, mere fact that the objector produces before the Prescribed Authority a copy of a registered sale deed showing that a particular plot had been before 8-6-1973 transferred to a third person (which fact normally is sufficient to induce a reasonable person to act on the supposition that the title to the plot covered by the sale deed had passed to the vendee) will not be sufficient to discharge the initial burden that lay upon him for in such a case the law enjoins that the Prescribed Authority should unless the objector further produces such evidence which may induce it, as a reasonable person to act upon the supposition that the transaction in question was real one presume that it was the objector who was holding the same ostensibly in the name of the vendee. 15. According to learned single Judge who referred these cases to us for opinion, there is, in this regard some conflict in the view expressed by N.D. Ojha, J., in the case of Ahmad Husain and Others Vs. 15. According to learned single Judge who referred these cases to us for opinion, there is, in this regard some conflict in the view expressed by N.D. Ojha, J., in the case of Ahmad Husain and Others Vs. State of U.P. and Others, (1978) AWC 299 and that expressed by K.C. Agrawal, J. in the case of Hakim Singh v. State of U.P. 1978 ALJ 291. In Ahmad Husain's case (supra) Ojha, J. while considering the question as to whether a sale deed executed by a tenure-holder after 24-1-1971 should or should not be ignored, made the following observations: In view of Section 5(1) of the Act, no tenure-holder was entitled to hold land in excess of the ceiling area applicable to him on 8-6-1973 but before the ceiling area could be determined of a person, such person should be a tenure-holder. It is only in proceedings for determination of ceiling area of a tenure-holder that the question of considering as to whether a sale deed executed by the tenure-holder after 24th January, 1971, should or should not be ignored can arise. If no proceedings can be initiated for determination of ceiling area against a person because he was not a tenure-holder on 8-6-1973 the question of consideration whether any sale deed after 24th January, 1971, will not at all arise.... 16. These observations made by the learned Judge seem to suggest that in his opinion a question whether a sale deed executed by a tenure-holder after 24-1-1971 can be ignored or not can arise only when the ceiling authorities proceed to determine the ceiling area applicable to a tenure-holder and that while dealing with the question as to whether or not a person was a tenure-holder on 8-6-1973 the ceiling authorities can in no case go behind such a sale deed and that they are bound to accept and act upon it. We are unable to accept this view of the learned Judge. It appears to us that he has stated the proposition too widely. We are unable to accept this view of the learned Judge. It appears to us that he has stated the proposition too widely. For the reasons already stated, we are of opinion that even for determining as to whether a person is a tenure-holder on 8-6-1973 it is open to the ceiling authorities to look into and scrutinise the circumstances in which a sale deed was executed and to see whether the transaction was sham and fictitious in the sense that despite execution of the sale deed the tenure-holder had in fact continued to hold the land in his own right. 17. So far as the judgment by K.C. Agrawal, J. in the case of Hakim Singh v. State of U.P. 1978 ALJ 291 is concerned we are of opinion that even if we ignore the observation made by him with regard to the effect of Explanation I to Section 5(1) of the Act, no exception can be taken to his view that Section 5(1) of the Act read along with Explanation II appended thereto makes it clear that a tenure-holder cannot escape the effect of Section 5 by making false, fictitious and sham transaction or by co-opting a person as a tenure-holder and that these provisions empower the Prescribed Authority to look into very such case where such an allegation is made and to find out whether the transfer effected was a real one intending to transfer the property or not. If Prescribed Authority comes to such a conclusion it is open to it to ignore any deed of transfer and to treat the land which may be the subject matter of transfer as belonging to the tenure-holder, even if the sale deed Bad been executed before 24-1-1971, We find ourselves unable to agree with the view expressed by the learned single Judge that the provision contained in Sub-section (6) of Section 5 which provides for ignoring certain transfers made after 24th day of January, 1971, in determining ceiling area applicable to a tenure-holder, makes an irrational distinction between cases where a tenure-holder transfers all his holding prior to 8th of June, 1973, and a tenure holder who during the same period transfers all except a small portion of his holding. According to him whereas a tenure-holder who transferred his entire holding shall escape the rigour of Sub-section (6) of Section 5, a tenure-holder who does not transfer his entire holding, similar transfer made by him is likely to be ignored under that Sub-section. A person who has actually ceased to be a tenure-holder on 8-6-1973 altogether falls outside the purview of the U.P. Imposition of Ceiling on Land Holdings Act and no question of making a provision for determination of any ceiling area applicable to him arises. Of course it is always open to the Prescribed Authority independently of Sub-section (6) to examine whether a person has actually ceased to be a tenure-holder on 8-6-1973. Making of a provision applicable only to persons covered by the Act and not making them applicable to persons sot so covered by it, cannot be said to create an invidious discrimination. 18. We now proceed to consider as to whether the ceiling authorities are precluded from examining the validity or otherwise of a partition decree passed before the 24th January, 1971. It was laid down in the case Ghana Ram and Others Vs. State of Uttar Pradesh and Others, (1977) AWC 415 that the ceiling authorities cannot examine the validity or otherwise of a partition decree passed before 24th January, 1971. We are unable to accept the proposition. Section 32 of the Act makes the State Government a party to the proceedings under the Act. Thus while determining the ceiling area applicable to a tenure-holder and the surplus land held by him, a lis between the State Government and the tenure-holder comes into existence. Certainly decrees passed in proceedings in which the State Government is not a party, do not bind the State Government and it should be open to it to show that the decree was a collusive decree and that despite it the person, to whom the notice u/s 10(2) was issued, had continued to be the real tenure-holder of the plot or plots in question. If for this purpose it becomes necessary for the State to do so, it can question the validity of the decree as well. If for this purpose it becomes necessary for the State to do so, it can question the validity of the decree as well. Of course a decree obtained prior to 24th January, 1971 or a sale deed executed before that date shall not be held by the Prescribed Authority to be collusive or not affecting the rights of the persons who are parties to it unless there are such circumstances appearing in the case which show that the decrees and transfer deeds were collusive or sham transactions. So far as partition decrees obtained prior to 24th January, 1971, in proceedings in which the State was also a party are concerned they will stand on a different footing. Such decrees would be binding on the State Government and it will not be open to it to question its validity before the Prescribed Authority. In this view of the matter we answer the four questions referred to us in writ petition No. 522 of 1977 as follows: (1) While determining the ceiling area applicable to a tenure-holder the Ceiling Authorities can look into and examine whether a transfer deed executed before or a decree passed prior to 24th January, 1971, was a sham, fictitious or collusive transaction. (2) In a case where a tenure-holder has not sold his entire tenancy, but has retained a small portion of the holding the transfer deeds executed by him between 24th January, 1971, and 8th of June, 1973, can while determining the ceiling area applicable to him, be examined by the Ceiling Authorities ill the light of the principles contained in Section 5(6) of the Act. (3) Subject to Explanation II to Section 5(1) the initial burden of proving that a transaction entered into by a tenure-holder prior to 24th January, 1971, is a genuine transaction is on the tenure-holder. Where, however the material on record indicates circumstances which satisfy the Prescribed Authority either that as a result of the transaction the title in the holding has passed to some other person or that circumstances exist which indicate that a prudent person should act upon the supposition that the title has passed to a third person, the burden shifts and it would be for State Government to show that the transaction in question was really a sham transaction. (4) Explanation II to Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act controls the provisions of Section 5(1) of the Act. Even though Explanation I to Section 5 is intended to apply only at the stage of determination of ceiling area applicable to a tenure-holder application of the principle underlying therein is implicit also at the stage of determining who a tenure-holder is as also the extent of his holding u/s 5(1) of the Act. 19. So far as the facts in the case of Brij Bhushan Rathi are concerned a careful perusal of the judgment of the Prescribed Authority which has been affirmed by the Appellate Authority shows that it was quite justified in recording the finding that the plots in question were never the ancestral Joint family Sir and Khudkast of Brij Bhushan Rathi in which his son had a share by birth. Accordingly after the coming into force of the U.P. Zamindari Abolition and Land Reforms Act those plots became the sole Bhumidhari of Brij Bhushan Rathi in which his sons did not have any interest. So far as the decree for partition obtained by Brij Bhushan Rathi, Rakesh Kumar and Raghuwansh Kumar and Kumari Aruna Rathi in the year 1972 is and the sale deed executed in favour of Ram Swarup are concerned, we are of opinion that there was ample material before the prescribed Authority on the basis of which it could come to the conclusion that the sale deed and the decree were 'collusive transactions object of which was to defeat the provisions of the ceiling law. Accordingly the Prescribed Authority was justified in ignoring them. 20. However, so far as the gift deed executed by Brij Bhushan Rathi on 7th March, 1970, in favour of his two sons Rasik Behari and Vishwa Behari is concerned, we find that it is a registered gift deed (under Section 123 of the Transfer of Property Act, a gift of immovable property is to be effected by means of a registered document) and even mutation of the names of the donee was effected in revenue records on May 15, 1970. This provides prima facie evidence for acting upon the supposition that the title to the plots passed to the donee. This provides prima facie evidence for acting upon the supposition that the title to the plots passed to the donee. Apart from observing that the donor appears to have executed the gift with a view to avoid application of ceiling laws, the Prescribed Authority did not in its order indicate anything to show that the gift in question was really a sham transaction in the sense that it was not intended to be acted upon and that actual title in the gifted property did not pass to the donee. No evidence has been quoted in support of the observation made in the order that after the gift had been executed it was the donor who bad continued to remain in physical possession of the gifted property. It was asserted on behalf of the Petitioner that there was no such evidence on the record. Learned Standing Counsel appearing for the State felt handicapped and he was not in a position to state before us as to whether there was in fact any such evidence on the record or not. Be that as it may it is primarily for the appellate court to consider the evidence and base its finding thereon. In case there is no evidence either to show that the possession in pursuance of the gift deed was actually not transferred to the donees or that there are no such circumstances to show that the gift deed in question was a sham transaction in the sense that the real title to the property never passed to the donees and continued to be retained by the donor, the Ceiling Authorities would not be justified in ignoring the same or to treat the land covered by the deed as still continuing to belong to Brij Bhushan Rathi. The case, therefore, has to go back to the appellate authority so that it may decide the appeal filed by the Petitioners a fresh in the light of observations made by us in this judgment. 21. In the result writ petition No. 562 of 1977 is allowed. The judgment dated 23rd December 1976 passed by the Civil Judge Aligarh is set aside, who will restore the three ceiling appeals Nos. 372, 382 and 378 each of the year 1976 to their original number and he should decide the same a fresh in the light of observations made by us above. 22. The judgment dated 23rd December 1976 passed by the Civil Judge Aligarh is set aside, who will restore the three ceiling appeals Nos. 372, 382 and 378 each of the year 1976 to their original number and he should decide the same a fresh in the light of observations made by us above. 22. The four questions referred to us in writ petition No. 522 of 1977 are answered as indicated in this judgment.