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Allahabad High Court · body

1988 DIGILAW 1157 (ALL)

Mohabbey Ali v. Hazra Begum

1988-12-13

RAM LAL

body1988
JUDGMENT Ram Lal, Member. - Mohabbey Ali and an other filed this revision against the order dated 22-2-84 of the Additional Commissioner, Moradabad, maintaining the order dated 17-6-83 passed by the SDO Suar, District Rampur, in a mutation case. 2. The relevant facts of the case are that the revisionists sought mutation on the basis of a registered sale deed dated 20-2-82 alleged to have been executed by Smt. Hazra Begum. Navi Jan filed on objection before the trial court which was later rejected for want of pairvi. An other objection was filed by Akhtar Ali Member of LMC saying that the vendees were minor at the time of execution of sale deed, that the land covered by the sale deed in question together with the land held by their father exceeded 12 acres and as such no mutation order can be passed. The trial court rejected the mutation application on the ground that there was a contravention of provision of Section 154 of U.P.Z.A. & L.R. Act, An appeal was preferred which was dismissed on 17-6-83 by the SDO. The revisionists went up in revision before the Addl. Commissioner Moradabad which was dismissed on 22-2-84 giving rise to the present revision-petition. 3. I have heard the learned counsels for the parties and perused the record of the case. 4. It has been argued by the learned counsels for the revisionists that the courts below have wrongly believed the entry of the Kutumb Register as also the transfer certificate. In support of his argument he has placed reliance in the case law reported in 1967 RD 145 and 1974 RD 164. He has also raised an objection that the Member LMC could not file an objection before the trial court without a resolution being passed as provided in para. 128 of the Gram Samaj Manual and Rules 110-A of U.P.Z.A. & L.R. Rules. According to him the LMC could not enter contest before the trial court. 5. In reply the learned DGC (R) on behalf of the Gaon Sabha contended that the courts below were right in believing the entries of the Kutumb Register which was a public document. The certificate issued by the Chief Medical Officer was in fact not admitted at the appellate stage and as such there is no question of believing it. 5. In reply the learned DGC (R) on behalf of the Gaon Sabha contended that the courts below were right in believing the entries of the Kutumb Register which was a public document. The certificate issued by the Chief Medical Officer was in fact not admitted at the appellate stage and as such there is no question of believing it. According to him the LMC had right to file an objection in the present case. 6. I have considered the arguments advanced by the parties. The main point for consideration in this case is if the vendees were minor at the time of execution of the sale deed and if so, whether the land held by them could be tagged with the land owned by their father in view of the provisions of Section 154 of the U.P.Z.A. & L.R. Act. Certified copy of the Kutumb-Register has been produced by the opposite party which has been duly proved by the Incharge Village Secretary. Similarly, the transfer certificate is also proved. These documents have got better evidentiary value as compared to the voter list. Therefore, the courts below were right in discarding the voter list and placing reliance on the Kutumb Register as well as the transfer certificate. All the three courts below have recorded a finding of fact to the effect that the revisionists were minor at the time of the execution of the alleged sale deed. 1 do not find any reason to disturb the finding recorded by the courts below. 7. With regard to the other point if the land held by the minors shall be included with the land held by parents or not. To appreciate the true scope of Section 154, as it stands at present, it is desirable to set out the provision as it has evolved through the years when the statute was originally enacted, Section 154 reads : - "No bhumidhar shall have the right to transfer by sale or gift ; any land to any person (other than an institution established for a charitable purposes) where such person shall, as a result of the sale or gift, become entitled to land which together with land, if any, held by himself or together with his family will, in the aggregate, exceed 30 acres in Uttar Pradesh. Explanation. Explanation. - For the purposes of this section a person's family shall, if the members are living jointly, consist of the person himself, his minor children, his wife or her husband, as the case may be, and if the person himself is a "minor his father and mother". The provision continued to read thus, except for a minor variation occasioned by the U.P. Land Reforms (Amendment) Act, 1954, up to 1956 with the U.P. Land Reforms (Amendment) Act, 1956 substituted two Explanations. Explanation I declared : - "For the purposes of this section, family shall include, in case it is a joint family, the transferee himself, his father and his mother, his male lineal descendants and his wife or her husband, as the case may be." And Explanation II read : - "For the purpose of this section the transferee shall, unless proved to the contrary be presumed to be joint with the members of his family mentioned in explanation 1." Then the U.P. Land Reforms (Amendment) Act 1958 substituted the following provision as Section 154 :- "No bhumidhar shall have the right to transfer, by sale or gift, any land other than tea gardens to any person (other than an institution established fora charitable purpose) where such person shall, as a result of the sale or gift, become entitled to land which together with land, if any, held by himself or together with his family, will, in the aggregate, exceed 12 acres in Uttar Pradesh." Explanation. - For the purposes of this section a family shall include the transferrer himself, his wife, or husband, as the case may be, and his minor children." Thereafter Section 154 was amended by U.P. Act No. 34, 1974 and again by U.P. Act 35 of 1976. The present provision reads as follows : - (1) Save as provided in sub-section (2), no bhumidhar shall have the right to transfer by sale or gift, any land other than tea gardens to any person where the transferee shall, as a result of such sale or gift, become entitled to land which together with land, if any, held by his family will in the aggregate exceed 5.0586 hectares (12.50 acres) in Uttar Pradesh. (2) Subject to the provisions of any other law relating to the land tenures for the time being in force the State Government may, by general or special order authorise transfer in excess of the limit prescribed in sub-section (1) if it is of the opinion that such transfer is in favour of a registered co-operative society or an institution established for a charitable purpose, which does not have land sufficient for its need or that the transfer is in the interest of general public. Explanation . - For the purposes of this section, the expression 'family' shall mean the transferee his or her wife or husband (as the case may be) and minor children, and where the transferee is a minor also his or her parents. 8. From the above it would be evident that the explanation mentioned in the case law reported in 1967 RD 145 and 1970 RD 164 was not in existence after 1958 to include parents of minors. The law was again amended by Act No. 35 of 1976. Before it, it was introduced by Act No. 34 of 1974. The intention of the Legislature is very clear and the Explanation 'Family' shall now mean the transferee himself, his wife or husband as the case may be and minor children and where the transferee is a minor also his or her parents. Having regard to the consideration of the explanation 'family' as mentioned above which was substituted as a result of U.P. Act No. 35 of 1976 for the purposes of Section 154 the family must be considered to extend to the parents of the transferee. In face of the clear explanation no other meaning can be assigned or interpreted. Accordingly, I am of the view that the 'family' of minor shall include his parents. The contention of the learned counsel for the revisionists that the family of the minor cannot include his parents is not acceptable. The case law relied upon by the revisionists is of no avail to them in view of the amended law as it exists at present. 9. From the above legal position the land covered by the disputed sale deed in the name of the revisionists together with the land held by his father shall exceed 12 acres thereby contravening mandatory provisions of Section 154 of U.P.Z.A. & L.R. Act. 9. From the above legal position the land covered by the disputed sale deed in the name of the revisionists together with the land held by his father shall exceed 12 acres thereby contravening mandatory provisions of Section 154 of U.P.Z.A. & L.R. Act. All the three courts below were correct in holding the above view and I do not find any reason to disagree with that view. 10. In the present case the objection was filed by Member LMC. There is nothing on record to show that a resolution was passed by LMC to file an objection before the trial court as provided under Section 128 of the U.P. Gram Smaj Manual read with rule 110-A of the U.P.Z.A. & L.R. Rules. There may be instances where a Chairman L. M. C. may be interested to safeguard the interest of the Gaon Sabha while in other cases the Chairman L. M. C. and other office bearers may not be interested to safe guard the interest. In case they are interested an action can be taken by calling a meeting of the L. M. C. urgently but in case there is no interest evinced by the functionaries of the Land Management Committee or some of them may be in league with a party, no objection at all could be filed. In such an eventuality the Collector on whom duty is cast upon for the correct maintenance of village record is not expected to await the resolution of a Land Management Committee to file an objection and is, therefore, not subservient to it. The Collector is, therefore, to my mind quite empowered to take immediate action in such matters and is independent of the L. M. C. Therefore, even in absence of resolution in the exigency of the nature mentioned above shall not render the orders passed in mutation proceedings invalid. This argument too of the learned counsel for the revisionists does not help him The points at issue has been concluded by the concurrent finding of all the three courts below and I see no justification to interfere with it. The revision carry no force and as such is liable to be dismissed. 11. Accordingly, the revision is dismissed.