ORDER R.P. Singh, J. - This writ petition arises out of an order passed by the Additional Commissioner, Moradabad Division, Moradabad in the exercise of his appellate powers under S. 13 of U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act) in proceedings arising out of objections filed under S. 10(2) of the Act. 2. The facts of the case as averred in the writ petition are that the petitioners 2 to 42 are members of Diwakar Co-operative Agricultural Society Ltd., Telipara, district Bijnor, (in) a co-operative societies Act. Certain tenure-holders of village Telipara and Rajpur Kot pooled their land for the purpose of carrying out agricultural farming and formed a co-operative society for the said purpose in the year 1955 which was known as Telipara Co-operative Society. The said society carried on cultivation by mechanical process and managed by modern agricultural techniques. On 3rd March, 1959, the Committee of Management of the society resolved to constitute a trust for establishment of 'Gau Sadan', schools and hospitals for charitable purposes and the society resolved to give 620 Bighas, 3 Biswa land to the trust for the purpose of running the charitable institution. In the year 1968 to 1970, however, the members of the society who pooled their lands, decided to transfer their holding to various reasons as a result of which various sale deeds were executed in favour of the petitioners and also respondent 4. All the sale deeds were executed prior to 1971 and each one of the sale deeds is for an area which is within the ceiling limit under the Act. The case of the petitioners are that the petitioners purchased the land by registered sale deeds out of their own resources which were duly explained in the income tax and wealth tax proceedings and hence they were tenure-holder in their own right. The petitioners after pooling their land so acquired by them by registered sale deeds from their own funds, became members of the Telipara Co-operative Farming Society and were getting dividends from the said society regularly from the date of pooling by account payee cheques duly credited to their accounts. In 1970 however, the committee of management of Telipara Co-operative Society decided to change the name of the society and approached the Registrar of the Co- operative Society, U.P., Bareilly for obtaining approval. In 1970 however, the committee of management of Telipara Co-operative Society decided to change the name of the society and approached the Registrar of the Co- operative Society, U.P., Bareilly for obtaining approval. The Registrar of Co-operative Societies vide his order dated 18-11-1970 accorded approval to the change of name of the society which now came to be known as Diwakar Sahakari Krishi Samiti Ltd., Telipara. On 2-1-1976 notice under S. 10(2) of the Act' was issued in the name of respondent 4 and in the said notice the land of the petitioners were included with the holding of respondent 4 for the purpose of determining the ceiling limit of the land on the ground that the petitioners were ostensible owners of the land as the source of consideration for the purchase of the land was paid by respondent 4, Devi Sahai Jindal. Respondent 4 and five others filed their objections before the Prescribed Authority who decided it by a common order, accepted the claim of respondent No. 4 in part and rejected the objection of others. Against the order passed by the Prescribed Authority the five objectors filed one appeal and Sri Jindal respondent 4, filed another appeal while the third appeal was filed by the State. The Additional District Judge by a common order dismissed the appeal of Sri Jindal, respondent 4, and also the appeal filed by five others while allowed the appeal filed by the State against which both Sri Jindal and five others filed separate writ petitions before this court which was numbered as Writ Petition No. 6042 of 1978 and Writ Petition No. 6700 of 1978. As common question of law was raised in both the writ petitions, both the writ petitions were disposed of by a common order by Hon'ble R.M. Sahai, J. vide his order dated 1-4-1980, which is Annexure-7 to the writ petition. The common question that arose in the case was whether the petitioners and others to whom notices were issued were ostensible owners or they were tenants in their own rights. The common question that arose in the case was whether the petitioners and others to whom notices were issued were ostensible owners or they were tenants in their own rights. This Court held that the findings that were recorded by the Additional District Judge were more on assumptions than on evidence on record and observed that "To decide the question of ostensible ownership he has merely relied on common knowledge than on facts which are relevant and necessary for deciding the controversy raised on behalf of the petitioner." The Court further observed that the finding of the appellate authority that there was no source of consideration or that the evidence of Jindal established that transactions were 'Benami', is not only incorrect but based on misreading the evidence overlooking the various documents filed to show that in fact the minor sons had their own income, and since the appellate court not only misread the evidence and ignored the relevant evidence but has based its findings on assumption which were wholly unfounded and irrelevant for deciding the dispute between the parties, the writ petition was allowed, the order passed by the appellate authority was quashed and he was directed to decide the appeal afresh and consider whether the petitioners and others who had filed objections were served with any notice and in case he finds that they were not served with any notice, he was directed to permit them to file objections and decide their claim in view of the observations made in the order. This court also relying on the Supreme Court case of Syed Abdul Khader v. Rami Reddy, reported in (1979) 2 SCC 601 : AIR 1979 SC 553 held that applying the principles laid down by the Hon'ble Supreme Court it is obvious that the tenure-holders having purchased the land from their own income, it could not be held to be 'Benami', nor could the petitioners be held to be ostensible owners because the source of consideration did not flow from D.S. Jindal. 3. 3. That after the remand of the case the petitioners to whom notices had not been duly served, filed their objections before the appellate court as they appeared in the writ petition filed by respondent and were aware of the directions issued by the High Court in its order, the appellate court remanded the case to the Prescribed Authority for consideration of the objections filed by the petitioners and for affording them an opportunity of leading evidence. The petitioners produced evidence to show the account of the co-operative farming society showing the distribution of profit out of the agricultural operation to its member tenure- holders. The society also produced the account books and counter-foils of the account payee cheques through which the dividends were distributed to various members of the society including the petitioners and credited in their accounts. The Prescribed Authority after going through the evidence accepted the transfers made by various reasons to the petitioner prior to 24-1-1971 on the ground that no reliable evidence was produced to show that the source of consideration for the purchase of the land came from respondent No. 4. The Prescribed Authority remitted his finding to the appellate court vide his order dated 28-5-1982. The Additional Commissioner in appeal again in spite of holding that in the circumstances of the case no evidence could be produced by the State to show that the source of consideration for the purchase of the land came from respondent 4, D.S. Jindal but held that the circumstances of the case indicate that it is the respondent 4 who is instrumental in the large number of sale deeds executed in favour of the petitioners and thus dismissed the appeal of the petitioners treating the petitioners to be ostensible owners, the real owner being D.S. Jindal respondent 4 and on this basis ordering the land of the petitioners to be clubbed with the land of respondent 4 and declaring the land surplus land vide his order dated 31-3-1987 which is in challenge in the present writ petition. 4. Heard Sri S.C. Budhwar, learned counsel for the petitioner and the standing counsel for the respondent. 5. 4. Heard Sri S.C. Budhwar, learned counsel for the petitioner and the standing counsel for the respondent. 5. The learned counsel for the petitioner strenuously urged that the Additional Commissioner respondent 3, has committed a manifest error of law in holding the petitioners to be ostensible owners and treating the purchase made by the petitioners to be 'Benami transaction' without there being any evidence to show that the source of consideration did not flow from the petitioners but from the respondent 4, D.S. Jindal. The learned counsel contended that no evidence having been produced by the State to show that the source of the consideration flowed from Sri D.S. Jindal, the petitioners could not be treated to be ostensible owners and their land could not be clubbed with that of respondent 4 for the purpose of determining the ceiling area under the Act. Therefore, the main question that arises for determination in the present writ petition is whether the necessary ingredients which would be necessary for treating the purchase to be benami transaction have been proved in the case and whether the payment of the consideration which is the real test for determining as to who is the real owner of the property, has been correctly determined by the Additional Commissioner, respondent 3 in the case. 6. It is well settled law that the source whence the purchase money came is by for the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another and unless it is established that the source of consideration came from the person other than the ostensible owner, the transaction cannot be held to be benami transaction. Hence the payment of consideration is the real test for determining as to who is the real owner of the land in dispute. In Gangadara Ayyar v. Subramania Sastrigal, reported in AIR 1949 FC 88. Mr. Justice Mahajan laid down the following principle at page 92 : - "It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion but must rest on legal ground and legal testimony. In absence of evidence, the apparent title must prevail." 7. The decision of the Court cannot rest on mere suspicion but must rest on legal ground and legal testimony. In absence of evidence, the apparent title must prevail." 7. In Surasaibalini Devi v. Phanindra Mohan Majumdar, reported in AIR 1965 SC 1364 their Lordships laid down on page 1372 that : "We start with the position that the court will presume an ostensible title to be the real title unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In other words, the onus is on the person who alleges a transaction to be benami to make it out. Of course, the source of the funds from which the purchase is made coupled with the manner of its enjoyment would be a very material fact or for establishing the proof of benami but the mere proof of the source of purchase money would not finally establish the benami nature of the defendants title. Even where the plaintiff purchases property with his own funds in the name of 'B' the surrounding circumstances, the mode of enjoyment might still indicate that it was intended to be a gift and it would then not be a case of benami notwithstanding that the purchase money did not proceed from the defendant." 8. In Jaydayal Poddar v. Bibi Hazra, reported in AIR 1974 SC 171 the Supreme Court observed thus : "It is well settled that the burden of proving that the particular sale is benami and that the appellant purchaser is not the real purchaser always rests on the person asserting it to be so. The burden has to be strictly discharged by adducing legal evidence of a definite character which would directly affect the proof of fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is that the intention of the party or parties is concerned and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises as a substitute for proof. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises as a substitute for proof. The reason is that a deed is solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs." 9. Again in the case of Syed Abdul Khader v. Rami Reddy, reported in AIR 1979 SC 553 which had already been relied upon by this Court in the earlier writ petition, it was observed thus : "The genesis of the concept of benami is that the consideration for transfer must flow from one person and the transfer is taken in the name of other person and the consideration so flowing for the transfer was not intended to be gift in favour of the person in whose name the transfer is taken. All these ingredients of benami are absent in this case and, therefore, the contention that the plaintiff was a benamidar cannot be accepted." 10. In that case pattas were granted by the Nizam in favour of the minor sons of the plaintiff but in absence of any evidence to show that the patta was for a consideration it was held that the minor sons could not be held to be benamidars. 11. In the case of Bhim Singh v. Kan Singh, reported in AIR 1980 SC 727 it was held that "There are two kinds of benami transactions which are generally recognised in India. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person,.-the transaction is called benami. In that case, the transferee holds the property -for the benefit of the person who has contributed the purchase money and he is the real owner. The second case which is loosely termed as benami transaction is a case where a person who is the owner of a property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder." 12. The second case which is loosely termed as benami transaction is a case where a person who is the owner of a property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder." 12. One common feature in both these cases is that the real title divorced from ostensible title and they are vested in different persons. Relying on the decision of Supreme Court in Minakshi Mills, Madurai v. The Commr. of Income-tax, reported in 1956 SCR 691 at p. 722 : AIR 1957 SC 49 at p. 66, the Supreme Court held that it would be necessary, when a dispute arises as to whether the person named in the deed-is the real transferee to inquire into the question as to who paid the consideration for the transfer. The Supreme Court observed thus : "The principle governing determination of the question whether a transfer is benami transaction or not may be summed up thus : (i) The burden of showing that the transfer is benami transaction lies on the person who asserts that it is such a transaction, (ii) If it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person* who supplied the purchase money unless there is evidence to the contrary, (iii) The true character of the transaction is governed by the intention of the person who has contributed the purchase money, and (iv) The question as to what is the intention has to be decided on the basis of the surrounding circumstances, relationship of parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc." 13. From the principle laid down by the Supreme Court in the cases referred to above, it is clear that the burden to prove that the transaction is benami transaction lies on the person who alleges it to be benami and the eal test for treating a transaction as a benami transaction is the source whence the consideration came. From the principle laid down by the Supreme Court in the cases referred to above, it is clear that the burden to prove that the transaction is benami transaction lies on the person who alleges it to be benami and the eal test for treating a transaction as a benami transaction is the source whence the consideration came. In any case, it is mandatory for the person who challenges the transaction to be benami to show the source of consideration and unless it is established that the source of consideration came from a person other than the ostensible owner, the transaction cannot be held to be a benami transaction. Applying this principle it has to be seen whether the state could discharge the onus of establishing that the transaction is benami by any legal testimony and evidence. The burden is on the State to establish that the source of consideration for the purchase of the land came from D.S. Jindal, respondent 4. In the present case, however, the State has miserably failed to discharge this heavy onus that rests on it. In fact, even the Additional Commissioner respondent 3 has observed that in the circumstances of the case since it was registered sale deed executed in favour of the various Petitioners on cash payment, no evidence could be produced to show that source of consideration came from respondent 4, D.S. Jindal. The standing counsel could not place any material before me to indicate that the source of consideration for the various registered sale deeds came from respondent 4 and had to admit that there is no material on the record to indicate that the source of consideration for the various registered sale deeds executed in favour of the petitioners came from Sri Jindal, respondent 4. Hence in absence of any evidence to establish that the source of consideration came from D. S. Jindal, respondent 4 and not the petitioners, the petitioners cannot be held to be ostensible owners for the benefit of respondent 4 and the transaction cannot be held to be benami transaction. The Additional Commissioner had decided the case on mere suspicion and assumption and not on legal testimony and egal grounds. The Appellate Authority has not only ignored the relevant evidence but based its finding on wholly unfounded assumptions and irrelevant considerations. The Additional Commissioner had decided the case on mere suspicion and assumption and not on legal testimony and egal grounds. The Appellate Authority has not only ignored the relevant evidence but based its finding on wholly unfounded assumptions and irrelevant considerations. All the sale deeds in favour of the petitioners have admittedly been executed prior to 1971 and evidence has been led by the petitioners to show that they have purchased the land from their own income. The petitioners are also income tax assessees and some of them are paying wealth tax. They have produced oral and documentary evidence to show their source of earning from which each one of them had separately purchased the land in dispute within the ceiling limit. After having purchased the land they pooled it for joint cultivation on co-operative basis by mechanical process and technique. The account of the co-operative society has also been produced to show the distribution of profits from the agriculture to its member tenure-holders and it is averred in the writ petition the account books and counter-foils of the account payee cheques show the distribution of dividends amongst the various members of the society including the petitioners. Merely because some of the petitioners are related to respondent 4 or that some of them are also doing steel business as is being done by respondent 4, cannot be a sufficient ground to hold that the source o consideration for payment of the sal consideration came from respondent 4. The observation of the Appellate Authority therefore that no attempt has been made by the petitioners to show that they are bona fide transferees for adequate consideration is based on misreading of evidence and overlooking the oral and documentary evidence led by the petitioners to show that each one of the petitioners purchased the land out of their own resources which were duly accounted for in their income-tax and wealth tax proceedings. It is also averred in the writ petition that the account of the co- operative farming society was also produced showing distribution of profits out of the agricultural operation to its member tenure- holders. It is also averred in the writ petition that the account of the co- operative farming society was also produced showing distribution of profits out of the agricultural operation to its member tenure- holders. In fact, the petitioners themselves appear to be well to do persons paying income- tax and some of them also paying wealth tax and they have produced evidence to show that they are transferees for consideration by registered irrevocable instrument while on the other hand in absence of any evidence to show that the source of consideration came from respondent 4 Sri Jindal, the petitioners cannot be held to be ostensible owners and the transaction cannot he held to he benami transaction. 14. The appellate authority respondent 3 have held the petitioners to be ostensible owners on irrelevant considerations inasmuch as evidence had been led by the petitioners to show that all the sale deeds made prior to 24-1-1971 in favour of petitioners were bona fide transactions made for adequate considerations paid by the petitioners from their own resources. A heavy burden that lay on the State to prove that it was a benami transaction and that the apparent purchaser is not the real purchaser which had to be strictly discharged by adducing legal evidence and the same having not been done by the State in this case by producing any cogent evidence, the petitioners cannot be held as ostensible owners on mere conjectures and surmises. Hence the land held by petitioners cannot be clubbed with the land held by respondent 4 for calculating the surplus area under the Act. 15. However, the case of the minor sons and the wife of respondent 4 Sri Jindal stands on a different footing. Section 3(7) of the Act defines 'family' in relation to tenure-holders as meaning thereby himself or herself and his wife-or husband, as the case may be, (other than judicially separated wife or husband) minor sone, minor daughters (other than married daughters). 'Tenure holder' is defined in S. 3(17) as the person who is holder of a holding but does not include a woman whose husband is a tenure-holder or minor child whose father or mother is a tenure-holder. 16. 'Tenure holder' is defined in S. 3(17) as the person who is holder of a holding but does not include a woman whose husband is a tenure-holder or minor child whose father or mother is a tenure-holder. 16. The learned counsel for the State argued that S. 5 of the Act provides that on commencement of the Act no tenure-holder shall be entitled to hold in the aggregate throughout U.P. any land in excess of the ceiling area applicable to him and in view of the definition of the 'tenure-holder' and the 'family' as stated above, the minor sons and the wife of the tenure-holder would be clubbed together and in view of the same the land held by the minor sons of Sri Jindal,i respondent 4, and his wife would be clubbed together for the purpose of determining the ceiling area. I see force in this submission made by the learned standing counsel and I find that Dinesh Kumar, Anil Kumar, Arvind Kumar and Kailash Chand who are petitioners 27,28,37 and 43 respectively are the sons of D.S. Jindal, respondent 4 who have been described as minor sons in the impugned order passed by the Additional Commissioner respondent 3. Thus if they are minor sons o respondent 4 on the relevant date, then the land held by them as well as the land held b the wife of respondent 4 would be clubbed together with the land held by respondent for the purpose of calculating the ceiling are entitled to be held by them keeping in view o the provisions of sub-sec. (3) of S. 5 of the Act. 17. No arguments have been advanced on the question of irrigated or unirrigated land and hence so far as the finding of the Additional Commissioner on the question of irrigated or unirrigated land or grove land are concerned, they are affirmed by me and upheld in tact. 18. In the result, the writ petition succeeds and is allowed. The order passed by the Additional Commissioner, respondent 3, dated 31-3-1987, is quashed. 18. In the result, the writ petition succeeds and is allowed. The order passed by the Additional Commissioner, respondent 3, dated 31-3-1987, is quashed. The case is now sent back to the Prescribed Authority with a direction to decide the case afresh in the light of the observations made above treating the petitioners, except the petitioners 27, 28, 37 and 43 not as ostensible owners and the sale deeds in their favour are held not to be benami transaction and therefore, land held by them cannot be clubbed with the land of respondent 4, while calculating the surplus area. The cases of petitioners 27, 28, 37 and 43 who are held to be minor sons of respondent 4 will be decided separately in view of the observations made above. The Prescribed Authority shall now proceed to decide the case afresh and determine the surplus area of the petitioners in the light of the observation made above expeditiously and in accordance with law.