ORDER R.B. Misra, J. -The present petition on behalf of the State under Article 226 of the Constitution is directed against the order of the Ilnd Additional District Judge, Rampur, dated 22nd December, 1978, arising out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act). 2. Respondents Nos. 2 and 3, Tajendra Singh and Daljendra Singh are brothers and tenure-holders with equal shares. Notices under Section 10 (2) of the Act were issued to each of the two brothers, and both the tenure-holders filed separate objections on the grounds, inter alia, that during their minority their elder brother, Sardar Devendra Singh, after obtaining permission of the District Judge, Rampur, under the Hindu Minority & Guardianship Act, sold the land under various transfer deeds. Some of the transfer deeds were executed prior to 24th January, 1971, and some were executed after that date. 3. The vendees also filed their separate objections alleging that they were in exclusive possession of the land and the vendors had no concern with it. 4. The State of U. P. contested the objections and their stand was that no actual transfer of land took place and the sale deeds were only a paper transaction and the land involved in the sale deeds was still held by the tenure-holders Shri Daljendra Singh and Tajendra Singh ostensibly in the names of vendees. 5. The Prescribed Authority ignored both sets of the sale deeds, those executed prior to 24th January, 1971 and also those executed after 24th January, 1971. With regard to the transfers made before 24th January, 1971, he held that the possession in respect of the property covered by the sale deeds prior to 24th January, 1971 was still with the original holders and not with the transferees. He further found that no consideration passed. The transaction of sale was only a fake one and the possession was still with the transferor's. With regard to the second set of the sale deeds that is sale deeds executed after 24th January, 1971, the Prescribed Authority held that the sale deeds were executed in favour of the close relations of the vendors and that the sale deeds were fictitious and of Benami nature. In the result, the Prescribed Authority confirmed the notice issued under Section 10 (2) and 30.47 hectares irrigated area was determined as surplus in each of the two cases separately. 6. The order of the Prescribed Authority gave rise to four appeals, one filed by Daljendra Singh the other by Tajendra Singh and the two appeals by Manjeet Singh, the vendee. All the four appeals were disposed of by the impugned order dated 22nd December, 1978, and they were partly allowed. The Additional District Judge recognised the transfers made by the tenure-holders prior to 24th January, 1971 with the permission of the District Judge. He, however, confirmed the findings of the Prescribed Authority with regard to the transfer deeds made after 24th January, 1971. State has now come to challenge the order of the Additional District Judge in so far as it goes against the State with regard to sale deeds prior to 24th January, 1971. 7. Sri V.B. Upadhya, appearing for the State, has contended that the Additional District Judge has committed a manifest error of law in applying Explanation II of sub-section (6) of Section 5 of the Act in respect of the transfers made prior to 24th January, 1971, although the same has no application. He has further contended that the Prescribed Authority had made a distinction between the Explanation II of Section 5 (1) and Explanation II of Section 5 (6) but the Additional District Judge did not approach the case from a correct angle and that has vitiated the order. It was also contended that the Additional District Judge quoted the findings recorded by the Prescribed Authority incorrectly and that has coloured his decision. 8. Admittedly, the mutation orders in respect of none of the sale deeds was made prior to 24th January, 1971, as such even in respect of the sale deeds executed prior to 24th January, 1971, the Prescribed Authority was to examine the sale deeds in the light of Explanation II to Section 5 (1) and the transfers made after the 24th January, 1971 were to be examined in the light of explanation II to Section 5 (6) of the Act. 9. In the present case we are concerned with the transfers made by the tenure-holders prior to 24th January, 1971 in respect of which mutation order was made after that date. 9. In the present case we are concerned with the transfers made by the tenure-holders prior to 24th January, 1971 in respect of which mutation order was made after that date. As the tenure-holders have not come to challenge the order of the Additional District Judge with regard to the transfer made after 24th January, 1971, therefore, we are not at all concerned with Section 5 (6) Explanation of the Act. It will be relevant at this stage to quote Section 5 in so far as it is material for the purpose of this case. Section 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 - If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivators 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 or whether on the basis of a deed of transfer of licence or on the basis of the 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." 10. According to Sri Upadhya, Expla nation I to Section 5 is not attracted to the present case. What is applicable to the present case is Explanation II to Section 5 (1). In view of Expln. According to Sri Upadhya, Expla nation I to Section 5 is not attracted to the present case. What is applicable to the present case is Explanation II to Section 5 (1). In view of Expln. II, it is argued for the State that as the objectors were holding the land before 24th January, 1971, and the name of the transferee was entered after 24th January, 1971, 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. It was further contended that on the finding of fact recorded by the Prescribed Authority, the objectors the vendors - themselves were in possession and not the transferee, and this finding of the Prescribed Authority has not been set aside by the appellate authority and, therefore, condition of Explanation II is fully satisfied and the burden lay very heavily on the objectors to prove the contrary. Unfortunately the Additional District Judge has never cared to consider the case in the light of Explanation II of Section 5 (1) and, therefore, the entire order is vitiated because of the wrong approach. 11. Shri S. S. Bhatnagar assisted by Shri N. C. Pande however supports the finding of the Additional District Judge with regard to the sale deeds executed prior to the prescribed date i.e. 24-1-1971. According to him neither Explanation I nor Explanation II of Section 5 (1) of the Act has any application to the present case inasmuch as both the Explanations apply to the tenure-holder. The objectors however ceased to be the tenure-holders of the plots transferred by them prior to 24-1-1971. 12. As a second limb to this argument, it is further submitted that it is always open to a tenure-holder to make a proper disposition of his agricultural plots to save himself from the clutches of the Act. Indeed it is one of the incidents of proprietary right that the owner can deal with the property any way he likes.unless there is a law prohibiting him from so doing. There was no law prohibiting the objectors from transferring the plots. As the tenure-holders were minors therefore transfer was made by the guardan with due permission of the District Judge under the Hindu Guardians and Wards Act. 13. There was no law prohibiting the objectors from transferring the plots. As the tenure-holders were minors therefore transfer was made by the guardan with due permission of the District Judge under the Hindu Guardians and Wards Act. 13. In support of his contention the learned counsel referred to certain cases under the Income-tax Act: (1) Shakthi alias Thaymal v. Kuppa Thammal ( AIR 1960 Mad 394 ), (2) Provident Investment Co. Ltd. v. Commissioner of Income-tax, Bombay City (24 ITR 33): ( AIR 1954 Bom 95 ) (3) Jiajee Roy Cotton Mills Ltd. v. Commissioner, Income-tax, 34 ITR 888: ( AIR 1959 SC 270 ). In all these cases it was laid down that every person is entitled so to arrange his affairs as to avoid taxation but the arrangement must be real and genuine and not a sham or make-believe. 14. The learned Additional District Judge according to the learned counsel Sri Bhatnagar, did not hold that the sale deeds executed prior to 24th January, 1971 were sham transactions. In the circumstances the sale deeds prior to 24th January, 1971 should have been accepted as genuine, and in that case the vendors ceased to be the tenure-holder of the plots covered under the sale deeds. 15. It is further contended by Sri Bhatnagar that the position would remain the same even if the vendees did not get possession on the date of transfer inasmuch as the title passed to them under the sale deeds and they became entitled to get possession unless this claim for possession became barred by time. 16. Sri Vidya Bhusnan Upadhya appearing for the State on the other hand has contended that the sale deeds maybe valid sale deeds but the ceiling authorities are required to consider whether possession has remained with the tenure-holder, the transferor. If so the authorities will presume that the vendor continues to be the tenure-holder and the burden lies on the tenure-holder to prove the contrary. In Yadunath v. State (1979 All WC 187) the following four questions were referred to the Division Bench for determination: (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? In Yadunath v. State (1979 All WC 187) the following four questions were referred to the Division Bench for determination: (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 bona fide nature with regard to the transaction prior to 24-1-1971 and (4) How far Explanations I and II to Section 5 of the U. P. Imposition of Ceiling on Holdings Act control the provisions of Section 5 sub-section (1) of the Act? 17. The Division Bench answered the questions as under: (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 in 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. (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 S. 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 deter mining who a tenure-holder is as also the extent of his holding under Section 5 (1) of the Act. In view of the decision, the initial burden was on the tenure-holder but once he has discharged the initial burden, it was for the State to prove that the transaction of sale was either sham or not bona fide. 18. According to Sri Bhatnagar, the sale deeds in the instant case had been executed after obtaining the due permission of the District Judge under the Hindu Minority and Guardianship Act as the tenure-holders were minors and the guardian who happened to be their own brother obtained the permission of the Court of the District Judge to transfer the property on behalf of the minors and the Court while granting the permission also fixed the rate at which the plots were to be sold and it is at the rate fixed by the court that the guardian had sold the property of the minor tenure-holders. In such a case it cannot be argued for a moment that the sale transaction was a sham one or was not for adequate consideration. In such a case it cannot be argued for a moment that the sale transaction was a sham one or was not for adequate consideration. In support of his contention, he placed reliance on Inder Singh v. Piara Singh (AIR 1927 Lah 655 (2)) it was held in this case as follows:- "A vendee from the guardian of a minor is entitled to rely on the courts sanction absolutely and is not bound to inquire into the benefit or necessity of the transaction." Reliance was also placed on Mahavir Das v. Jamuna Prasad Sahu (AIR 1928 Pat 543). A Division Bench of the Patna High Court observed as follows:- "Where therefore an order has been made authorising the guardian to raise a loan on the security of the infants estate the lender of the money is entitled to trust that order, and he is not bound to enquire as to the expediency, or necessity of the loan for the benefit of the infants estate. If any fraud or underhand dealing is brought home to him that would be a different matter, but apart from any charge of that kind he is entitled to rest upon the order." 19. Therefore, the initial burden was discharged by the tenure-holder and it was for the State to establish that the transaction was a sham one. 20. Having heard the counsel for the parties, I find considerable force in the contention of Sri Vidya Bhushan Upadhya. The learned Judge has approached the case from a wrong point of view and that has vitiated his judgment by a manifest error of law. The present case is to be governed by Explanation II to Section 5 (1) of the Act and not by Explanation II to Section 5 (6) of the Act. The learned Judge has applied the incorrect law and therefore he has not recorded the material findings on the relevant question. The Prescribed Authority has recorded a clear and categorical finding that the tenure-holders vendors themselves continued to remain in possession despite transfer made by them. This finding has not been touched by the learned Additional District Judge presumably because the learned Judge completely lost sight of Explanation II to Section 5 (1) of the Act. 21. For the reasons given above, the writ petition must succeed. This finding has not been touched by the learned Additional District Judge presumably because the learned Judge completely lost sight of Explanation II to Section 5 (1) of the Act. 21. For the reasons given above, the writ petition must succeed. It is accordingly allowed, and the impugned order of the Additional District Judge dated 22nd December, 1978 is quashed only in so far as it relates to sale deeds executed prior to 24th January, 1971 and the case is sent back to him for deciding the appeal afresh according to law in the light of the observations made above after recording the requisite findings as required by Explanation II to Section 5 (1) of the Act. The finding of the Additional District Judge with regard to sale deeds executed after 24th January, 1971, shall remain in tact. The parties shall bear their own costs.