Supreme Court of India

STATE OF U.P.versusBANKE SINGH AND ANR

Citation: 1996 INSC 135
Decided: 25 January 1996
Disposal: Appeal(s) allowed
Bench: K RAMASWAMYG B PATTANAIK

Holding

A devise made by will after the specified date is a transfer under Explanation I(b) to Section 5(6) and must be ignored, so the land cannot be excluded from surplus.

Summary

The State appealed against the order that excluded a parcel of land from surplus land on the basis of a will executed in 1978. The respondents claimed a one‑fourth share in the surplus land, arguing that the will of Smt. Gajraji bequeathing the share to her nephew should exempt the land from ceiling provisions. The issue turned on Section 5(6) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, which stipulates that any transfer made after 24 January 1971 that would otherwise be surplus must be ignored for surplus‑land determination. The Supreme Court held that a devise under a will is a "transfer" within the meaning of Explanation I(b) to Section 5(6) and therefore cannot be used to exclude the land from surplus. Consequently, the lower courts erred in excluding the land, and the appeal was allowed.

Issues considered

Whether a devise made by will after 24 January 1971 is to be ignored under Section 5(6) of the U.P. Imposition of Ceiling on Land Holdings Act for the purpose of determining surplus land.

Legislation cited

Subjects

surplus landland ceilingU.P. Imposition of Ceiling on Land Holdings ActwilldevisetransferSection 5(6)Explanation I(b)appellate jurisdiction

Judgment

)-
/

A STATE .lF U.P.
v.
BANKE SINGH AND ANK

JANUARY 25, 1996

B [K RAMASWAMY AND G.B. PATTANAIK, JJ_j

U.P. Impositio11 of Ceili11g 011 La11d Holdi11gs Act, 1960-'

S.5-Surplus la11d-Dec/aratio11 of-Executio11 of will-Exclusion of
C la11d willed away-Held, will havi11g bee11 executed after the specified date, it
ca1111ot be excluded for purposes of determi11atio11 of surplus land.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2936 of
1996.

D From the Judgment and Order dated 2L9.88 of the Allahabad High
Court in W.P. No. 1731 of 1985. ' •

Ashok K Srivastava for the Appellant

Mukul Mudgal for the Respondents.
E
The following Order of the Court was delivered :

Leave granted.

This special leave petition arises from the order of the High Court
F
of Allahabad, Lucknow Bench made on September 21, 1988 in Writ
Petition No. 1731 of 1984.

Though the respondents had been served earlier and Sri Mukul
Mudgal who had taken notice has reported on September 1, 1995 that he
G could not appear and stated that he be permitted to withdraw from the
undertaking. He has also not filed his Vakalatnama. In these circumstances, •
since respondents are not represented, learned counsel for the appellant
was directed to produce necessary material on the basis of which respon-
dent Banke Singh became owner of the land. The learned counsel has now
H produced the records.
992
STATE v. BANKE SINGH 993

The only question in this case is : whether the respondents would get A
benefit of I /4th share in the surplus land declared by the competent
authority? On September 8, 1982, Krishan Pal Singh filed objection, who
claimed land of Khata Nos. 340, 341 and Khata No. 33 of village Nawada
and Khata No. 77 of Village Jamla Jot on the basis of a will executed by
Smt. Gajraji. On that basis, the said land is required to be excluded from B
the surplus land. The primary authority had rejected the claim by proceed-
ings dated July 30, 1983 and on appeal the District Judge allowed the
appeal by order dated November 9, 1983 and excluded I/4th of the land
held by Gajraji on the basis of the Will dated September 2, 1978. When it
was questioned, the High Court dismissed Writ Petition No. 1731/84. C
Hence, this appeal by special leave.

Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act,
1960 (U.P. Act No.1of1%1) (for short, 'the Act') in Chapter 11 imposes
ceiling on land holdings. Certain exemption mentioned in the Article gets
excluded from surplus land. Section 5 postulates that on and from the D
commencement of the Uttar Pradesh Imposition of Ceiling on Land Hold-
ings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in
the aggregate throughout Uttar Pradesh, any land in excess of ceiling area
applicable to him.
E
Sub-section (6) postulates determination of the ceiling area ap-
plicable to a tenure-holder. It provides that any transfer of land made after
the 24th day of January 1971, which but for the transfer; would have been
declared surplus land under this Act, shall be ignored and not taken into
account. Explanation-I provides that for the purpose of this sub-section the F
expression transfer of land made after the twenty-fourth day of January,
1971 includes, among other things, •

Any admission, acknowledgment, relinquishment or declaration in
favour of a person to the like effect, made in any other deed or instrument
or in any other manner, shall be construed to be a transfer for the purpose "G
of sub-section (6).

Admittedly, the Will was executed on February 10, 1978 long after
the specified date. By the Will a devise was made by Gajraji, owner of the
land bequeathing her 1/4th share in favour of her brother's grand-son, H
994 SUPREME COURT REPORTS [1996) 1 S.C.R.

A Krishan Pratap Singh. Therefore, it must be construed to be a devise "in
any other manner" within the meaning of Explanation I (b) of sub-section
(6) of the Act. It shall be ignored for the purpose of determination of the
surplus land. The High Court and the appellate authority, therefore, were
not right in directing to exclude the said land.
B The appeal is accordingly allowed. No costs.

G.N. Appeal allowed.

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