JUDGMENT K.Kannan, J. (Oral) 1. The writ petition challenges the order passed by the authorities constituted under the Haryana Ceiling on Land Holdings Act of 1972 (for short, the 1972 Act) and for the benefits of allotment made under the Haryana Utilization of Surplus Area Scheme of 1976 (for short, the 1976 Scheme). 2. The admitted case was that the land owner Sheo Karan was treated to be a big landowner whose holdings were declared to have fallen as surplus under the Punjab Security of Land Tenures Civil Writ Petition No.17376 of 1991 (O&M) 2 Act. On 30.06.1961, the 5th respondent Ran Singh claimed a purchase right under Section 18 of the Punjab Security of Land Tenures Act and it appears that certain proceedings had taken place at the instance of the sons of Sheo Karan and the sale made in favour of Ran Singh was set aside. The case ended with the decision of the Supreme Court on 1988 holding the sale in favour of the respondent as invalid. The 5th respondent had, however, secured an allotment of the property as a Category B tenant brought through the order in Annexure P1, dated 30.08.1976. The allotment was purported to be in respect of surplus land already declared by way of utilization under the 1976 Scheme. 3. The 5th respondent had, however, secured an allotment of the property as a Category B tenant brought through the order in Annexure P1, dated 30.08.1976. The allotment was purported to be in respect of surplus land already declared by way of utilization under the 1976 Scheme. 3. The learned counsel for the petitioners land owners have challenged the proceedings before the authorities making the allotment in favour of the 5th respondent on the following grounds: (i) Sheo Karan died on 01.05.1969 and since the property had remained unutilized, the property fell to inheritance to his sons and if holding was required to be redetermined, the property that fell under inheritance was not available for resettlement of an ejected tenant as set forth under Section 10A(b) of the Punjab Security of Land Tenures Act; ii) The father had dealt with the property by means of a partition decree passed on 12.07.1958 with his sons and since the transaction had been brought before 30.07.1958, it was exempt from vesting in the State transferred under Section 8 of the 1972 Act; iii) “CategoryB tenant” as defined under the 1976 Scheme is in respect of tenant who is ordered to be evicted under Section 9 of the Punjab Security of Land Tenures Act and since the property came to the respondent from the father to his son in-law much after the declaration was made in a collusive fashion, he could not be treated as a tenant entitled to an allotment. 4. As regards the effect of inheritance, the contention of the State is that Sheo Karan did not die only on 01.05.1969, as contended by the petitioners. In proof of the contention, a copy of the death certificate of Sheo Karan had also been filed as Annexure R1 which shows that Sheo Karan died only on 01.05.1979. If the succession had taken place only on 01.05.1979, that is, after the vesting under Section 12 itself, it would have no effect at all. This has been amply brought out through the decision of the Supreme Court in Ram Swarup and others Versus S.N. Maira and others(1999) 1 Supreme Court Cases 738. I, therefore, reject the contention that the succession operates to exclude the property. This has been amply brought out through the decision of the Supreme Court in Ram Swarup and others Versus S.N. Maira and others(1999) 1 Supreme Court Cases 738. I, therefore, reject the contention that the succession operates to exclude the property. The learned counsel refers to me to the decision in Deva Singh (died) now through his LRs and others Versus State of Haryana and aaothers 1997(1) PLJ 224 for the effect of opening of succession. The decision was regards succession opening before the appointed day. In this case, the succession has opened subsequent to the Act and in the light of the judgment of the Supreme Court in Ram Swarup (supra), Deva Singh (supra) cannot help the petitioners' case. 5. The second objection, which has been taken by the petitioners, is that the property was transferred by the father on 12.07.1958 under a partition decree and, therefore, the property would be required to be excluded. The counsel would contend that in terms of Section 5 of the Transfer of Property Act, the property transferred would include a transfer made to a person to himself and another and when partition was effected through a decree when specific allotments were made, he must be deemed to have transferred the property. The counsel would also refer me to a judgment of this Court in Ajmer Singh Versus The State of Haryana and others1987 PLJ 535 to contend that a partition brought about before 30.07.1958 between the landowner and his sons would also require to be excluded. The reliance on Ajmer Singh (supra) is not proper, since the judgment in Ajmer Singh was set aside by the Supreme Court in Amar Singh Versus Ajmer Singh1994(3) PLR 433. Further, a Division Bench of this Court has also held that a partition before 30.07.1958 will not make a difference to vesting of the surplus in the State under Haryana Act, Civil Writ Petition No.17376 of 1991 (O&M) 5 in Janga Versus Zora Singh(2003) 4 RCR (Civil) 811 (DB). Further, in Bhagwanti Devi Versus State of Haryana1994 Supp (3) SCC 101, the Supreme Court held that if a property is declared as surplus under the 1953 Act, the nonutilization by the State is immaterial. Further, in Bhagwanti Devi Versus State of Haryana1994 Supp (3) SCC 101, the Supreme Court held that if a property is declared as surplus under the 1953 Act, the nonutilization by the State is immaterial. I must observe that in the two decisions of the Supreme Court in Amar Singh (supra) and Bhagwanti Devi (supra), there is no reference to Section 8 of the Haryana Act of 1972 and the exclusion by transfer before 30.07.1958. However, in the Janga's case (supra), the Division Bench has rejected even the case of partition as not making a difference. While a mere partition deed will not fall within the definition of transfer under Section 5 of the Transfer of Property Act, a partition decree will constitute a transfer under Section 2(b) of the Transfer of Property Act, as held by the Supreme Court in S.K. Sattar S.K.Mohammed Choudhary Versus Gundappa Amabadass (1996) 6 SCC 373 . The question of whether a partition decree before 30.07.1958 will render an exclusion of the acquisition/vesting in favour of the State by operation of Section 8 of the Haryana Land Ceiling law is indeed a moot point that was not dealt with by the Supreme Court. It may do so in future but judicial discipline demands that I follow the Division Bench decision in Janga's case (supra) and the Supreme Court decisions in Bhagwanti Devi (supra) and Amar Singh (supra) as directly covering the issue at hand. 6. As regards the contention that the 5th respondent was not a CategoryB tenant, the learned counsel takes me to the definition of Category B tenant under the 1976 Scheme. Category B tenant is referred to as, “atenant who was allotted and given possession of land in the surplus area by the State Government under the Punjab Law or the Pepsu Law and is holding the same.”. Only such property which was granted under the Punjab Security of Land Tenures Act after declaration of surplus can qualify to a tenant's status as a Category B tenant. The allotment made to the respondent as Category B tenant was, therefore, not correct and I uphold the objection taken by the petitioner in that regard. Only such property which was granted under the Punjab Security of Land Tenures Act after declaration of surplus can qualify to a tenant's status as a Category B tenant. The allotment made to the respondent as Category B tenant was, therefore, not correct and I uphold the objection taken by the petitioner in that regard. It cannot, however, secure any benefit for the petitioners except that the State will be at liberty to resume possession from the 5th respondent and treat it as available in the surplus pool for distribution in accordance with law to any person that may be eligible for allotment. 7. The impugned order would, therefore, require to be modified only to the extent of cancelling the allotment made to the th respondent and treating the property as available for the distribution in accordance with the 1976 Scheme. 8. The writ petition is ordered on the above terms.