JUDGMENT Honble Sudhir Agarwal, J.—Heard Sri Manoj Misra, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The writ petition is directed against the order dated 30.3.1991 passed by Prescribed Authority/Addl. District Magistrate under Section 10 (2) of U.P. Imposition of Ceiling on Land Holdings Act, 1860 (hereinafter referred to as the Act) and the order dated 29.1.1992 passed by the Commissioner, Moradabad Division, Moradabad, dismissing the appeal of the petitioner. 3. A notice under Section 10 (2) of the Act was served upon petitioners father Het Ram Singh on 12.3.1988 to show cause as to why his holding of 17.40 acres be not declared surplus. He filed objection on 24.3.1988. During the continuance of the said proceedings before the prescribed authority, Sri Het Ram Singh died and the petitioners were substituted as his legal heirs. The petitioners filed sale-deeds executed separately in their names showing that they were all major having their own income and have purchased the land independently and, therefore, their holdings cannot be included with the holding of their father. The prescribed authority, however, rejected their objection and held that except of the sale-deeds, no evidence was produced to show that the sons were separately residing from the father and their holdings were separate and moreover, one of his son, namely, Shishu Pal Singh obtained loan from the State Bank by mortgaging fathers property and this shows that the land was jointly held by the petitioners and their father as one unit and consequently, declared a total 17.40 acres of land as surplus and directed for taking over its possession. The petitioners filed Ceiling Appeal No. 99 of 1991 before the Commissioner, which was rejected on 29.1.1992. 4. The learned Counsel for the petitioners submitted that the petitioners are not included within the term "family" defined under Section 3 (7) of the Act and in order to include their holding by placing reliance on Explanation 1 of Section 5 of the Act, heavy onus lies upon the State to prove that the holding was benami, i.e., "ostensibly in the name of any other person, though it is a land held by him in his own rights". In the case in hand, the respondents have proceeded otherwise by observing that the petitioners did not produce any evidence to show that the land was not held by petitioners father in his own rights and, therefore, the basic approach of the respondents is clearly erroneous, illegal and contrary to law. He has also placed reliance on a single judgment of this Court in Writ Petition No. 2315 of 1997, Banshi Singh and others v. District Judge, Moradabad and others, decided on 3.1.1979. The learned Standing Counsel opposed the submission and supported the reasons assigned by the respondents. 5. It would be appropriate to consider what the Act has prohibited and in what manner. Section 5 of the Act imposes ceiling on the land providing that no tenure-holder shall be entitled to hold in the aggregate throughout U.P., any land in excess of ceiling area applicable to him. The term "tenure-holder" has been defined in Section 3 sub-section (17) of the Act and reads as under : "3. Definitions.—............................. (17) tenure-holder means a person who is the holder of a holding but except in Chapter III does not include— (a) a woman whose husband is a tenure-holder; (b) a minor child whose father or mother is a tenure-holder;" 6. The term "holding" has been defined in Section 3 (9) and reads as under : "3. (9) holding means the land or land held by a person as a bhumidhar, sirdar, asami or Gaon Sabha or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, other than a sub-tenant, or as a Government lessee, or as a sub-lessee of a Government lessee, where the period of the sub-lease is co-extensive with the period of the lease;" 7. The term family in relation to tenure-holder has been defined in Section 3 sub-section (7) and reads as under : "3. (7) family in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters);" 8. It is evident from the record that Het Ram had his own holding. Besides, the six petitioners, who are the sons of Late Het Ram Singh, also have purchased certain holdings in their names through different sale-deeds which were exclusively in their names. It is evident from the record that Het Ram had his own holding. Besides, the six petitioners, who are the sons of Late Het Ram Singh, also have purchased certain holdings in their names through different sale-deeds which were exclusively in their names. However, the Lekhpal and Tehsildar included all the said holdings in the name of Late Het Ram Singh showing that in total, he had 25.81 acres of land and, therefore, 17.40 acres of land was liable to be declared surplus. The case of the petitioners was that their holding were separate, they were residing separately and, therefore, their holdings, which they have purchased through their own separate sale deeds, cannot be included or clubbed with the holding of Late Het Ram Singh. The appellate authority has rejected the appeal only on the ground that the petitioners contention that they were residing separately from their father cannot be accepted since one of the petitioners Shishu Pal Singh has obtained loan for purchasing a tractor after getting his fathers land mortgaged and the onus to prove that they were residing separately lies upon the petitioners, which they did not discharge. 9. From the order of the appellate authority, it appears that he proceeded on the assumption that once notice under Section 10 (2) of the Act has been issued based on the inquiry of the Lekhpal and Tahsildar etc. alleging that the noticee held certain holding in his own rights though ostensibly in the name of other, it is the liability of the notice to prove otherwise. This approach is absolutely misconceived and contrary to law. Explanation 1 Section 5 is in the nature of exception inasmuch normally every tenure-holder is entitled to hold a land to the extent provided in the Act, but in a case where the land actually belongs to one but has been purchased in the name of some other person, that is a kind of benami transaction, in that case only to prevent such cases so as not to frustrate the very purpose of the Act, the Explanation-1 has provided that such land shall be included in the holding area of a tenure holder, but to prove the existence of such fact, the onus lies on the State heavily and not otherwise. Explanation-1 read with Section 5 is very clear that neither it purports to add nor to limit the normal meaning of the expression tenure-holder as defined in Section 3 sub-section (17) of the Act and, thus, clearly shows that the land must be held by the tenure-holder in his own rights. In case, the State claims that any land is held ostensibly by the tenure-holder, the onus lies upon the State to establish the same. A somewhat similar issue came up for consideration before a Division Bench of this Court in Mohammad Abbas v. State of U.P. and others, 1979 AWC 23. There two major sons of the tenure-holder executed sale deeds on 12.5.1971, 7.9.1971 and 8.3.1972 transferring the entire land recorded in their names. Thereafter, the tenure holder claimed two additional hectares of land on the ground that his two major sons did not hold any land on the appointed date, i.e., 8.6.1973, but the said claim was rejected by the ceiling authority holding that the transfer of land by major sons after 24.1.1971 was liable to be ignored as they could not establish that the sale deeds were executed in good faith and for adequate consideration. Referring to Section 5 sub-section (3) of the Act, the Court held that the ceiling area to which a tenure-holder is entitled is fixed with reference to the number of members in the tenure-holders family and land held by other members of the tenure-holders family is to be aggregated with the land held by the tenure-holder. The word "family" as defined in the Act in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband) minor sons and minor daughters (other than married daughters). It shows that the said definition does not include the major sons of the tenure-holder. By virtue of Section 5 (3), if the tenure-holder is a male, land recorded in the name of his wife, provided she is not a judicially separated wife, and minor sons and minor daughters can be clubbed in determining the ceiling area which the tenure-holder is entitled to retain. This shows that the land held by the major sons is not to be included in the holding of the tenure-holder. This shows that the land held by the major sons is not to be included in the holding of the tenure-holder. The only possibility for including the said land, therefore, would have been if Explanation-1 of Section 5 (1) would have been applicable, namely, if the land is ostensibly held by the tenure-holder in the name of any other person, but for the said purpose, heavy burden lie upon the State to prove this fact. Considering this aspect of the matter with reference to Explanation-1 to Section 5 (1) of the Act, another Division Bench of this Court in Banshi Singh (supra) wherein the Court held as under : "Explanation 1 of Section 5 (1) clearly shows that when the State alleges that the land is ostensibly being held by a tenure-holder in the name of any other person which should be treated as the land belonging to the tenure-holder then the burden lies upon the State to prove this fact. Merely because in the notice the State has clubbed the land belonging to others under the pretext that it is being held ostensibly in the name of sons or any other person, the burden cannot be said to have been discharged. Once a notice under Section 10 (2) is served upon the tenure-holder he has to show cause and while showing cause if the tenure-holder establishes by prima facie evidence by filing documents or by giving evidence that the land was being held by other persons in their own capacity, the burden shifts upon the State to establish the fact that the land is being held by the tenure-holder ostensibly in the name of others. In order to discharge this burden the State has to establish by some cogent and satisfactory evidence that the land is being held by the tenure-holder. Merely because the land has been clubbed in the land of petitioner No. 1 in the notice issued under Section 10 (2) of U.P. Imposition of Ceiling on Land Holdings Act or merely because the Lekhpal gives a statement that the petitioner is in possession, is not sufficient to discharge that burden and to establish that the land was ostensibly being held by the tenure-holder in the name of others. In the present case petitioner No. 1 led evidence by showing that the names of the sons were entered in revenue records right from 1264F and after the partition their names were entered separately on the basis of the partition decree. When the State was alleging that the land was being ostensibly held by petitioner No. 1, the State had to discharge that burden by giving cogent and satisfactory evidence. In the present case no such evidence was adduced and the mere statement of the lekhpal was not sufficient to rebut the evidence and to hold that the land was being held ostensibly by petitioner No. 1 in the names of the sons." 10. Moreover, the only reason for non suiting the petitioners given by the appellate authority that the land of Het Ram Singh was given as security for obtaining loan by one of the petitioners and thus shows that the entire holding belong to Het Ram Singh, in my view, is thoroughly misconceived. It is very difficult to co-relate the said transaction to the conclusion which has been drawn by the learned appellate authority. A father and son having separate holding, residing separately but if help each other in their period of difficulty or whenever necessity arises, would not mean that they constitute one unit and entire thing belong to the father or the son, as the case may be. In Indian society and in common practice, if the sons or daughters or even brothers or other relatives needs help, the first helping hand would be that of normally the relatives or the friends and, therefore, for purpose of land, if Het Rams land was mortgaged with respect to the petitioner No. 1, that itself would not justify the conclusion that the entire holding belong to Het Ram in his own right though ostensibly in the name of the petitioners. The petitioners gave their statements that they are all residing separately. Mere non-production of ration-card cannot justify an inference that the statements given on oath by the petitioners were false unless some evidence is produced by the State to show the said averment to be incorrect. The petitioners gave their statements that they are all residing separately. Mere non-production of ration-card cannot justify an inference that the statements given on oath by the petitioners were false unless some evidence is produced by the State to show the said averment to be incorrect. From a bare reading of the appellate order, it is evident that it has solely proceeded on the assumption as if the onus lie upon the petitioners to show that the holding was separate, ostensibly in their names and did not belong to their father Het Ram Singh. The basic approach of the appellate authority in the present matter is clearly illegal and contrary to law. 11. In the result, the writ petition succeeds and is allowed. The appellate order dated 29.1.1992 passed by Commissioner, Moradabad Division, Moradabad (Annexure-3 to the writ petition) is hereby quashed and the matter is remitted back to the appellate authority to consider and decide the matter afresh. Since it is very old matter, it is directed that the appellate authority shall decide the appeal afresh in accordance with law and in the light of the observations made hereinabove expeditiously preferably within a period of one year from the date of production of certified copy of this order. No costs. ————