SANT SINGHversusTHE ADDITIONAL DISTRICT JUDGE, JHANSI AND ORS.

                               SANT SINGH                                     A
                                      v.
    THE ADDITIONAL DISTRICT JUDGE, JHANSI AND ORS.

                           FEBRUARY 14, 1996

           [K. RAMASWAMY ANDS. SAGf.IIR AHMAD, .TJ.]                          B

        U.P. Imposition of Ceiling on Land Holdings Act, 1960.

      Sections 4A,~Land sold by father to his minor daughter represented
by her mother before the appointed day-Whether the land could be taken out C
from the holding of fathe1~Held, under personal law, father dwing his
life-Time remains to be the legal guardian of the minor--Mother cannot be
a legal guardian-Father cannot sell the land to himself-Being the tenure
holder, even though the sale was made, the land under sale would be
includible in his holding-Land trans/erred to a p1ivate temple after the
appointed day-Transfer invalid and the land is required to be included in D
his holding-Lands inigated by tube-well-Treating the lands as inigated
lands as held by the Dist1ict Judge on the basis of evidence on record cannot
be said to be unwan·anted.

      Ramadhar Singh v. Presclibed Autholity & Ors., [1994) Supp. 3 SCC
                                                                              E
702, referred to.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2477 of
1977.

     From the Judgment and Order dated 2.4.77 of the Allahabad High           F
Court in C.M.W.P. No. 1127 of 1971.

        Rajiv Dutta for the Appellants.


                      .
        Ashok K. Sriva~tava and Ms. Rachna Gupta for the Respondents .
                                                                              G
        The following Order of the Court was delivered :

      This appeal by special leave arises from the order of the High Court
of Judicature at Allahabad made in Civil Misc. Writ No.1127/77 on April
8, 1977 summarily dismissing the writ petition. The appellant challenged
the notice issued under Section 5 of the U.P. Imposition of Ceiling on Land   H
                                    653
                                                                                    /

    654                   SUPREME COURT REPORTS                  [1996] 2 S.C.R.

A   Holdings Act, 1960 (for short, the 'Act'). Since the appellant had not              -:
    voluntarily filed the declaration, notice came to be issued. The Additional
    District Judge by his order dated February 23, 1977 had negatived three
    contentions raised by the appellant which are reiterated before us. The first
    contention is that appellant had sold 10 acres 33 cents of land by registered
    sale .deed dated October 26, 1970 to his minor daughter represented by
B   mother. The appointed day is January 24, 1971. Therefore, the sale is valid
    and it is not in violation of the provisions of the Act. The District Judge,
    therefore, was not right in clubbing in the appellant's holding of the said
    land on the ground that the daughter was unmarried. Therefore, she is not'
    a member of the family. It is seen that sub-section (6) of Section 5
C   postulates that in determining the ceiling area applicable to a tenure-
    holder, any transfer of land made after the twenty-fourth day of January,
    1971, which but for the transfer would have been declared surplus. land
    under the Act, shall be ignored and not taken into account. The proviso
    provides that nothing in this sub-section shall apply to "a transfer proved
D   to the satisfaction of the prescribed authority to be in good faith and for
    adequate consideration and under an irrevocable instrument not being a
    'Benami' transaction or for immediate or deferred benefit of the tenure-
    holder or other members of the family". The question is : whether the sale
    deed is executed in good faith and for adequate consideration and is not
    a 'Benami' transaction for the immediate or deferred benefit of the tenure-
E   holder or other members of the family. 'Family' has been defined under
    the Act to include wife and minor children in relation to 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 is seen that the District Judge had recorded the
    finding, as a fact, that she was a minor and the sale deed was executed by
F
    the father making the wife as the guardian of the minor daughter. Under
    personal law, father during his life-time remains to be the legal guardian
    of the minor and mother cannot be a legal guardian. He cannot sell the
    land to himself. She being a minor and the appellant being a tenure-holder
    in respect of the said land,, even though sale was made, the land under sale
G   would be includable in his holding. In either event the said land admeasur-
    ing 10 acres 33 cents cannot be taken out from the holding of the appellant.

          It is next contended that the appellant had transferred 12 plots of
    land covering an area 13.47 acres to his private temple and therefore, the
H   said land cannot be included in his holding. Admittedly, it was done on.




                                                                                         -r
                 SANT SINGH v. ADDNL. DISTT. JUDGE                       655

January 28, 1972 after the appointed day. Under those circumstances,           A
though the transfer was made in favour of the temple which is found to be
a private temple, it being after the appointed day, it is invalid in law.
Therefore, the land is required to be included in his holding.

       It is next contended that plot Nos. 5 and 13 are part of unirrigated
 land and therefore, they have to be treated as an unirrigable land. The B
 District Judge was, therefore, wrong in treating them as irrigated, land. It
 is seen that Khasra record has been produced by the Lokpal who was
 examined before the District Judge. No question has been put to him as
 regards the nature of the irrigation done therein. The record contains that
 it was being irrigated by tube-well. Under Section 4A firstly, clause (a) (iii) C
 states that in determining any land as irrigated land, land cultivated by any
 State Tube-well or a private irrigation work would be considered as ir-
 rigable land. In view of the fact that the lands are being irrigated by
  tube-well which is called Nalcoop, treating this land as irrigated land, as
 held by the District Judge on the evidence on record, cannot be said to be
 unwarranted. The learned counsel also relied upon Ramadhar Singh v. D
 Presclibed Auth01ity & Ors., [1994 Supp. 3 SCC 702, wherein the question
 was whether genuineness of the sale deed was not gone into. This Court
 held that validity of the sale deed executed prior to January 24, 1971 could
 not be determined. But in view of the specific language referred to herein-
.before which was not brought to the notice of this Court, it is difficult to E
 hold that the tribunal committed any error iri going into that question. Thus
 construed, we find it difficult to give relief to the appellant.

       The appeal accordingly is dismissed. No costs.

G.N.                                                      Appeal dismissed.     F