CHANDRASHEKHAR HARPRASAD v. STATE OF M P — 1980 DIGILAW 310 (MP)

JUDGMENT : ( 1. ) THIS is a petition under Articles 226 and 227 of the constitution of India for quashing the order of Revenue, dated 23-2-1978 (Annexure VII) confirming the order passed by the Competent Authority, dated 8-1-1976 (Annexure VI) declaring transfer by way of sale in question to be void. ( 2. ) THE case of the petitioner brifly stated is as under :-Doharsingh, respondent No. 4, held 88. 99 acres of unirrigated land. He entered into an agreement for sale with the petitioner in respect of 21. 50 acres out of the land held by him in the year 1970. The land is situated in village Piparia (Sohagpur) in District Hoshangabad. Rs. 2500 were received by Doharsingh by way of advance in pursuance of the said agreement to sale and the petitioner was put in possession of the said land and his possession is also recorded in Khasra for the year 1971-72 (Annexure I ). In pursuance of the aforesaid agreement to sale, a sale-deed was executed and registered on 17-4-1972 in favour of the petitioner by Doharsingh, respondent no. 4. ( 3. ) IN proceedings under the M. P. Ceiling on Agricultural Holdings act, 1960, (for short, the M. P. Act) which were initiated by the Competent authority, the sale in question was defended on the grounds (i) that the sale was by such a holder of land, who held land within the ceiling limit prescribed by the law as it stood then, that Doharsingh, the holder, his wife and his son (minor) held 75 acres each; (ii) that the transfer by way of sale on 17-4-1972, having been made one day prior to the publication of the Bill which ultimately became the M. P. Ceiling on Agricultural Holdings (Amendment) Act, 1974 (No. 20 of 1974), cannot be regarded to be made either in anticipation of or to defeat the provisions of the said Amendment Act, and, (iii) that the transfer in question was not Benami, or made to defeat provisions of the Act. ( 4. ) AFTER holding inquiry, the Competent Authority declared the transfer in question to be void by order dated 8-1-1976 (Annexure VI ). Aggrieved by this order, the petitioner preferred an appeal on the grounds condensed above which has been rejected by the Board of Revenue by order dated 23-2-1978 (Annexure VII ). Hence, this petition. ( 5. ( 4. ) AFTER holding inquiry, the Competent Authority declared the transfer in question to be void by order dated 8-1-1976 (Annexure VI ). Aggrieved by this order, the petitioner preferred an appeal on the grounds condensed above which has been rejected by the Board of Revenue by order dated 23-2-1978 (Annexure VII ). Hence, this petition. ( 5. ) THE petitioner contends that (i) the impugned order is wholly arbitrary, illegal. being based on assumptions and conjectures and / or irrelevant considerations (ii) that the enquiry under section 4 (1) with section 4 (4)of the M. P. Act ought to have been directed to find out the object of the transfer and not its effect merely; (iii) that the transfer in question having not been made in anticipation of or to defeat the provisions of the M. P. Act could not be declared void; and, (iv) that the transfer in question being not benami it could not be declared void. Shri M. A. Shah, learned Deputy Government Advocate for the State, argued in support of the impugned order and contended that none of the aforesaid contentions has any force. The sale-deed in question has rightly been declared to be void. Reliance was placed on the ratio of The Authorised officer, Thanjavur and another v. S. Naganatha Ayyar, (AIR 1979 S C 1487. ). ( 6. ) NOW, the object which the M. P. Act seeks to achieve is to provide for imposition of ceiling on agricultural holdings, acquisition and disposal of surplus land. The Tamil Nadu Land Reforms and Fixation of Ceiling on land Act (58 of 1961), (for short, the T. N. Act), also seeks to achieve similar object. These Acts try to adhere to a common pattern by following national guide lines issued by the Government of India from time to time to the respective State Governments. The actual achievement and implementation of the Scheme is likely to vary according to the provisions enacted for the purpose and the language employed therein. In order that the holders of land may not frustrate the object of statute, and in order to secure further that land remains available for distribution as surplus land, checks have been put on adoption of subterfuge of effecting transfers or partitions to evade clutches of law. In order that the holders of land may not frustrate the object of statute, and in order to secure further that land remains available for distribution as surplus land, checks have been put on adoption of subterfuge of effecting transfers or partitions to evade clutches of law. The framers of the law have provided for machinery to examine validity of such transfers or partitions, if made, to defeat any of the provisions of the Act. For the purpose, power and authority have been conferred on specified authorities. By section 22, the T. N. Act clothes the Authorised Officer with such powers whereas the M. P. Act confers such powers on the Competent Authority by sections 4 and 5 thereof. ( 7. ) THE extent of power and authority so conferred on the Competent authority by sub-section 22 of the T. N. Act on the Authorised Officer may now be spelt out. Sub-sections (1) and (4) of section 4 of the M. P. Act run as under:- "4. Transfers or partitions made after the publication of the Bill but before the commencement of this Act- (1) Notwithstanding anything contained in any law for the time being in force, where after, the 1st January 1971, but before the appointed day, any holder has transferred any land held by him by way of sale, gift, exchange or otherwise or has effected a partition of his holding or part thereof or the holding held by the holder has been transferred in execution of a decree of any Court, the competent authority may, after notice to the holder and other persons affected by such transfer or partition and after such enquiry as it thinks fit to make, declare the transfer or partition to be void if it finds that the transfer or the partition, as the case may be, was made in anticipation of or to defeat the provisions of this Act. (2 ). . . . . . . . . . . . (3 ). . . . . . . . . . . . (4) In regard to every transfer to which this section applies, the burden of proving that the transfer was not benami or was not made in any other manner to defeat the provisions of this Act shall be on the transferor. . . . . . . (3 ). . . . . . . . . . . . (4) In regard to every transfer to which this section applies, the burden of proving that the transfer was not benami or was not made in any other manner to defeat the provisions of this Act shall be on the transferor. " (Emphasis supplied.)Sub-sections (1) and (4) of section 4 reproduced above are as amended by the M. P. Ceiling on Agricultural Holdings (Amendment) Act, 1974, (No. 13 of 1974) and modified by M. P. Ceiling on Agricultural Holdings (Amend-ment) Act, 1974 (No. 20 of 1974 ). Prior to the aforesaid amendments there was no provision corresponding to sub-section (4) in section 4 of the M. P. Act. Section 22 of the T. N. Act runs as under :-"where on or after the date of commencement of this Act, but before the notified date, any person has transferred any land held by him by sale, gift, (other than gift made in contemplation of death), exchange, surrender, settlement or in any other manner except by bequest or, has effected a partition of his holding or part thereof, the Authorised Officer within whose jurisdiction such land, holding of the major part thereof is situated may, after notice to such person and other persons affected by such transfer or partition and after such an enquiry as he thinks fit to make declare the transfer or partition to be void if he finds that the transfer or the partition as the case may be, defeats any of the provisions of this Act. " (Emphasis supplied)According to section 22 of the T. N. Act, any transfer of land between 6-4-1960 to 2-10-1962 i. e. between the period of commencement of the Act and the notified date is liable to be declared void, if it defeats any of the provisions of that Act. "the trichotomy is obvious. There must be a transfer or other alienation. It must have taken place during the period mentioned in the section. It must have the effect of defeating any of the provisions of the act. If these three elements are present, the Authorised Officer must void the transfer. There is no room for importing a fourth principle that the transfer should be sham, nominal or bogus. . " (para. 14 ). (Emphasis supplied)as held in Authorised Officer Tanjavurs case (supra ). It must have the effect of defeating any of the provisions of the act. If these three elements are present, the Authorised Officer must void the transfer. There is no room for importing a fourth principle that the transfer should be sham, nominal or bogus. . " (para. 14 ). (Emphasis supplied)as held in Authorised Officer Tanjavurs case (supra ). The enquiry under section 22 of the T. N. Act is, thus, confined to the aforesaid three considerations only and there is no room for invoking the fourth principle. ( 8. ) SO far as the jurisdiction of the Competent Authority acting under the M. P. Act is concerned it does not appear to be restricted to those transfers which have been made after 1-1-1971 and before 7-3-1974 as specified by the section 4 (1), but it extends to those transfer also which might have, been made after publication of the Bill (i. e. 15-9-1959) and before the commencement of the Principal Act (i. e. 15-11-1961 ). This is what flows from the title of the section 4, which has remained unamended in spite of several amendments brought about in the Act, and also from the expression "made in anticipation of or to defeat the provisions of this Act" occurring in subsection (1) of section 4 thereof. From the language employed in sub-section (1) of section 4, it appears as if there is a lacuna in provision in that section to cover the cases of transfers or partitions made between (a) 15-11-1961 to 1-1-1971, and (b) on or after 7-3-1974. If one looks to the provisions of section 5 of the M. P. Act it at once becomes clear that the provisions thereof squarely cover the cases of transfers not falling within the plea of the section 4 (1 ). On such a construction, there does not appear to be any vacuum or omission in the Act. As such, there is no occasion for supplying any cause omissus. The net spread by section 4 (1) of the M. P. Act thus is wider than that spread by section 22 of the T. N. Act. ( 9. ) THE object of enquiry under section 4 (1) of the M. P. Act and that under section 22 of the T. N. Act is, in essence, the same, although it appears to be different the section having been differently worded. ( 9. ) THE object of enquiry under section 4 (1) of the M. P. Act and that under section 22 of the T. N. Act is, in essence, the same, although it appears to be different the section having been differently worded. Section 4 (1) of the M. P. Act uses the expression "made in anticipation of or to defeat the provisions of this Act", whereas the expression used in section 22 of the T. N. Act is "defeats any of the provisions of this Act". No doubt the aforesaid expressions have been couched in different language, but the ultimate object of enquiry under both the provisions appears to be the same i. e. to find out whether a transfer in question is liable to be declared void or not. The import of the word to occurring in the fore quoted expression in section 4 (1) of the M. P. Act appears to be with object or result of. As per Shorter Oxford English Dictionary Illustrated, Volume Two, (reprint 1959), the word to also means indicating result, effect or consequence. That apart, effect of a fact has potency of indicating its cause; likewise, cause is capable of indicating that effect. A transfer within the postulate of section 4 (1) of the M. P. Act as well as section 22 of the T. N. Act is a voluntary transfer. In a transfer which is an outcome of volition of the parties, intention is its necessary concomitant. It can, therefore, safely be regarded that if a transfer by way of sale, gift, exchange, or otherwise, in effect, defeats any of the provisions of the relevant Act, it must have been made with the intention of defeating its provisions. In this view of the matter, nothing appears to turn on the difference of the language in which section 4 (1) of the M. P. Act and section 22 of the T. N. Act have been couched. However, the feature which is peculiar to the M. P. Act is existence of provisions in the shape of sub-section (4) of section 4. Section 4 (4) of the M. P. Act casts burden of proving that transfer in question is not Benami and was not made in anticipation of or to defeat in any manner the provisions of the Act, on the transferor. Section 4 (4) of the M. P. Act casts burden of proving that transfer in question is not Benami and was not made in anticipation of or to defeat in any manner the provisions of the Act, on the transferor. The concept of burden of proof is germane in respect of consideration which is relevant for adjudication of a lis. Accordingly, Benaminess or otherwise of a transfer is one of the relevant considerations, for the purpose of an enquiry under section 4 (1) of the M. P. Act. ( 10. ) NOW, the import of the words not benami can be gathered from the following guide-lines which were forwarded by the Government of India to the State Government prior to introduction of the M. P. Ceiling on agricultural Holdings (Amendment) Bill, 1974, which have been found in the statement of Object and Reasons published in the M. P. Rajpatra, dated 22nd December, 1972:- "that retrospective effect should be given from a date not later than 24th January 1971 with condition that onus of proving bona fide nature of any transfer of land made after that date should be on the transferor". The word benami is used to denote two classes of transactions as held in sree Meenakshi Mills Ltd. Madurai v. Commissioner of Income-Tax Madras, (AIR 1957 S C 49.), which differs from each other in their legal character and incidents:- "in one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word benami, is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. but in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid". (Emphasis supplied ). In the setting in which the word benami appears in sub-section (4) of section 4 of the M. P. Act, it appears to have been used to indicate a transfer failing within the latter class of cases within the contemplation of Sree meenakshi Mills case (supra ). ( 11. ) THERE does not appear any provision corresponding to section 4 (4)of the M. P. Act in the T. N. Act. In absence of such provision in the t. N. Act, it came to be observed that the Authorised Officer could not proceed on an additional consideration and had to confine enquiry to the trichotomy stated in para 14 of the Authorised Officers case (supra ). In this view of the matter, it appears that the scheme of the M. P. Act on the point is different than that of the T. N. Act. Accordingly, on the basis of Authorised officers case (supra) it cannot be genuineness or otherwise of the impugned transfer is foreign to the scope of the inquiry under section 4 (1) of the M. P. Act. Shortly, put, if the following four elements are present, the Competent authority must void the transfer :- (i) there must be a transfer by way of sale, gift exchange or otherwise; (ii) it must have been made in anticipation of the Act, having the effect of defeating any of the provisions of the Act; (iii) that the impugned transfer must have been taken place during the suspect-spell spelled by us in para above, and, (iv) that the impugned transfer is benami i. e. sham, fictitious, nominal or bogus. It is shown that the transfer in question is not Benami i. e. it is bona fide, genuine and a real transfer, and that it does not defeat any of the provisions of the Act, the Competent Authority cannot void it. ( 12. It is shown that the transfer in question is not Benami i. e. it is bona fide, genuine and a real transfer, and that it does not defeat any of the provisions of the Act, the Competent Authority cannot void it. ( 12. ) NOW, the grievance of the petitioner on merits is that (i) the burden of proof cast by section 4 (4) of the M. P. Act being negative, the principles, governing discharge of such type of burden, have not been kept into consideration by the Tribunal; (ii) that the impugned orders are based on assumptions and conjectures; and / or (iii) relevant considerations have also been lost sight of. Section 4 (4), undoubtedly, casts a burden of proof of negative character. It puts the transferor under obligation to prove the negative fact, namely, that the transfer is not Benami. There is a distinction between burden of proving an affirmative fact and a negative fact. When an affirmative fact has to be established, direct evidence to prove that fact can be adduced and the Court has to make up its mind as to its credibility and sufficiency; but, when a negative tact has to be proved, i. e. , a party is expected to do nothing more than to substantiate the plea prima facie. The principles governing the discharge of a negative burden have been condensed in the law of Evidence by S. C. Sarkar, 11th Edition, at page 871, thus:- "in some cases the allegation, negative in form was made by the plaintiff, in others by way of defence, they all illustrate the rule that where a claim or defence rests upon a negative allegation, the one asserting such claim or defence is not, relieved of the onus probandi by reasons of the form of the allegation or the inconvenience of proving a negative. But in such cases a less amount of proof than is usually required may avail. Such evidence as renders the existence of negative probable, may change the burden to the other party. " (Jones, S. 180 ). " In the context of negative burden of proof cast by section 7 of the Andhra pradesh Land Reforms (Ceiling on Agricultural Holdings) Act (1 of 1973) a provision similar to section 4 (4) of the M. P. Act, in P. Sambasive Rao v. Revenue Divisional Officer, (A1r 1977 AP51. ). " (Jones, S. 180 ). " In the context of negative burden of proof cast by section 7 of the Andhra pradesh Land Reforms (Ceiling on Agricultural Holdings) Act (1 of 1973) a provision similar to section 4 (4) of the M. P. Act, in P. Sambasive Rao v. Revenue Divisional Officer, (A1r 1977 AP51. ). It has been held that: "no doubt, as provided in section 7 of the Act, the burden is on the petitioner to show that he did not make the alienations with a view to avoid the law relating to ceiling on agricultural holdings. But that is a proof which is negative in nature. With what view or what weighed with him when he made the transfers and what worked in his mind in making the transfer, the transferor alone would be knowing. If he comes forward and says that he did not make the transfers with a view to avoid any future legislation on agricultural holdings and gives some other reason which is a plausible one for making the alienation, in the absence of any other circumstances to show the contrary, that explanation must be accepted. " We do not see any reason not to apply the aforesaid principles to an enquiry under section 4 of the M. P. Act. The Tribunal does not appear to have kept into consideration the aforesaid principles. In the instant case, in order to prove that the impugned transfer was not Benani and was not made in anticipation of and to defeat in any manner any of the provisions of the Act, the petitioner has examined besides himself, Doharsingh, respondent No. 4, the transferor also. The sale-deed in question was registered on 17-4-72, one day prior to the publication of the Bill leading to the M. P. Ceiling on agricultural Holdings (Amendment) Act, (No. 20 of 1974 ). The petitioner as well as the transferor have deposed on oath that they had no knowledge that any amendment would be introduced either by the Amendment Act no. 13 of 1974 or No. 20 of 1974 at the time when the sale-deed in question was executed and registered. The aforesaid Amendment Acts came into force on 7th March 1974. The petitioner as well as the transferor have deposed on oath that they had no knowledge that any amendment would be introduced either by the Amendment Act no. 13 of 1974 or No. 20 of 1974 at the time when the sale-deed in question was executed and registered. The aforesaid Amendment Acts came into force on 7th March 1974. Accordingly, it was obligatory on the Board of Revenue to have referred to material on the basis of which if could be held that the statement of the petitioner and that of respondent No. 4, the transferor, on the point could be regarded to be improbable. However, no such material has been referred. ( 13. ) THE order passed by the Tribunal appears to rest on four considerations. The first consideration is that Dohar Singh had annual income the order of Rs. 10,000, as such he should have been possessed of sufficient savings. This reasoning is essentially assumptive and conjectural in character. Likelihood of ones ability to make saving depends on multifarious factors and varies with obligations, one may be required to discharge in a given year. The second consideration which has weighed with the Tribunal is that with regard to usual practice of saving sufficient seeds for the next sowing season. Capacity to save sufficient seeds for the purpose is likely to vary with yield of the crops in a particular season. There is no basis for the assumption that Doharsingh must have been possessed of sufficient seeds at the relevant time. Likewise, the third consideration regarding improbability of time-lag between entering into the agreement for sale and performance of marriage of Doharsinghs daughter, appears to overlook the actualities of life. The performance of marriage after the time-lag of 2 years is not an unusual phenomenon. The last consideration is that the price of the land was between Rupees 500 to 600 per acre at that time We are constrained to observe that this finding too is not based on any legal evidence on record. Furthermore, the factum of sale and receipts of price some 15 years back is also too remote to constitute a relevant consideration militating against bona fides of the transfer in question. Thus the impugned order passed by the tribunal appears to be based essentially on assumptions and conjectures, and / or irrelevant considerations. Furthermore, the factum of sale and receipts of price some 15 years back is also too remote to constitute a relevant consideration militating against bona fides of the transfer in question. Thus the impugned order passed by the tribunal appears to be based essentially on assumptions and conjectures, and / or irrelevant considerations. It appears to have been passed in oblivion of the principles governing discharge of negative burden of proof. The impugned order appears to have been passed in an illegal manner. It also occasions failure of justice. As such, the impugned order cannot be allowed to stand, more so, as it is calculated to unreasonably affect right to dispose of and / or right to acquire property. ( 14. ) BEFORE parting with the case, we want to record thanks to Sarva - shri R. K. Dixit, R. S. Bajpai, and M. M. Kaushik who appeared as amicus curiae and rendered invaluable assistance to us in deciding the petition. ( 15. ) AS a sequel to the aforesaid discussion, the petition succeeds and is hereby allowed. The order passed by the Tribunal dated 23-2-78 (Annexure VII) is hereby quashed. The case will now go back to the Tribunal with a direction that it will decide the appeal afresh in accordance with law and the observations made hereinabove. No order as to costs. The outstanding security amount, if any, shall be refunded to the petitioner. Petition allowed.