JUDGMENT
Tarun Agarwala, J.
1. A notice under Section 9(2) was issued to a tenure holder, namely Pala Singh by the prescribed authority, under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. Pala Singh filed his objections and, the prescribed authority, after considering the matter, passed an order dated 12.11.1974 under Section 11 of the Act, holding that ala Singh did not hold any surplus land and, consequently discharged the notice. Pursuant to the amendment of the Act by ordinance No. 30 of 1975, a fresh notice was issued to Pala Singh in which objections were filed and the prescribed authority, after considering the matter, passed an order dated 22.11.1976, again determining that Pala Singh did not hold any surplus land and consequently discharged the notice. The said order became final and the matter rested at that position.
2. On 28.5.1979, Pala Singh executed a registered will bequeathing Ins entire holding in favour of one of his sons namely, Jog Raj Singh and did not bequeath any property to Sri Bal Raj Singh, his second son on the ground that he already had sufficient land with him. Pala Singh died on 9.10.1982 and, upon his death, as per his will, the property devolved upon his son Jog Raj Singh. A dispute arose, and consequently a suit for declaration under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act was filed in which, the Suite was also a party and had also filed a written statement. 1 he said suit was decreed by a judgment dated 28.2.1987 holding that the will was validly executed and that the petitioner became a bhumidhar pursuant to the will made in his favour by his father and that the other son, Bal Raj Singh w as not entitled to any portion of the land of his father.
3. During the pendency of the proceedings, the prescribed authority under the Ceiling Act. issued a notice dated 19.2.1986 under Section 10 of the Act to Sri Bal Raj Singh alleging that he was in possession of surplus land in view of the fact that pursuant to the death of his father Pala Singh, Bal Raj Singh inherited 50% of the holding of his father. Bal Raj Singh filed an object h holding that he did not inherit any holding in view of the will executed by hi father wherein the entire land was bequeathed in favour of Sri Jog Raj Singh. The petitioner, upon coming to know about these proceedings filed a impleadment application which was allowed by the prescribed authority and also filed his objections bringing on record the will executed by his father a well as the order dated 28.2.1987 passed under Section 229-B of the Act in which the said will was proved. The petitioner submitted that the entire land of his father was bequeathed in his favour and therefore, the land which he had inherited from his father, could not be clubbed in the holding of his brother. The prescribed authority, by its order dated 2.6.1987, rejected ilk-objections of the petitioner as well as of his brother and held that Sri Bal Raj Singh held surplus land and that a half share of Pala Singh was liable to be included in the holding of Sri Bal Raj Singh.
4. Aggrieved by this order, the petitioner as well as his brother filed at appeal which was rejected by an order dated 29.2.1988. Consequently, the present with petition.
5. The prescribed authority as well as the appellate authority while rejecting the objections of the petitioner and his brother, held that the will dated 28.5.1979 executed by their father Pala Singh, was liable to be ignored under Section 5(6) of the Act in view of the fact that the said will was executed after 24.1.1971 and, on the same analogy, held that the order passed under Section 229-B, having been passed after 24.1.1971, was also liable to be ignored.
6. rd the learned Counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
7. In my view, the order of the prescribed authority as well as of the appellate authority are patently erroneous and cannot be sustained. Section 5 of the Act contemplates that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings [Amendment ] Act. 1972, no tenure holder would be entitled to hold in the aggregate throughout Uttar Pradesh any land in excess in the ceiling area applicable to him. Sub-clause (6) land Sub-clause (8) of Section 5 is relevant for the purpose of this case which is quoted hereunder:
5.(6) 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 declare surplus land under this Act, shall be ignored and not taken into account:
Provided that nothing in this sub-section shall apply to
a transfer in favour of any person (including Government) referred to in Sub-section (2);
(b) a transfer proved 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 his family.
Explanation – I. – For the purpose of this sub-section the expression transfer of land made after the twenty-four day of January, 1971, includes-
(a) a declaration of a person as a co-tenure-holder made after the twenty-fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1911;
(b) any admission, acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner.
Explanation – II – The burden of proving that a case falls within Clause (b) of the proviso shall rest with the party claiming its benefit.
(7) In determining the ceiling area applicable to a tenure-holder, any partition of land made after the twenty-fourth day of January, 1971, which but for the partition would have been decided surplus land under this Act, shall be ignored and not taken into account:
Provided that nothing in this sub-section shall apply to-
(a) ….
(b) a partition of a holding made in a suit or a proceeding pending on the said date:
Provided further that notwithstanding anything contained in the preceding proviso the prescribed authority, if it is of opinion that by collusion between the tenure-holder and any other party to the partition, such other party has been given a share which he was not entitled to, or a large share than he was entitled to may ignore such partitioning.
Explanation- I. – If a suit is instituted after the said date for declaration that a partition of land has taken place on or before the said date, then such declaration shall be ignored and not be taken into account, and it shall be deemed that no partition has taken place on or before the said date.
Explanation – II. – The burden of proving that a case falls within the first proviso shall rest with the party claiming its benefit.
8. Sub-clause (6) contemplates that in determining the ceiling area applicable to a tenure holder, any transfer of land made after the twenty-fourth day of January, 1971 would be ignored unless such transfer was made in good faith and for adequate consideration through an irrevocable instrument and that such transfer was not a benami transaction. Sub-clause (6) of Section 5 contemplates a transfer of a land. The petitioner has inherited the property through a will upon the death of his father. Inheritance through a will is not a transfer contemplated under Sub-section (6) of Section 5 of the Act.
9. In Girraj v. State of U.P. and Ors. 1979 All L.J. 214, the Court held:
Will is certainly not a transfer under the Transfer of Property Act and the position is no different under the Ceiling Law.
10. The aforesaid decision is squarely applicable in the present case.
11. In view of the aforesaid, Sub-clause (6) of Section 5 has no application to the present facts and circumstances of the case. The said sub-section was not applicable, as inheritance through a will is not a transfer of the land as contemplated under Sub-section (6) of Section 5 of the Act.
12. There is another aspect of the matter, the Act does not specifically provide for treating all transfers effected after 8.6.1973 as void. Sub-section (8) of Section 5 read with the Explanation makes it clear that the right to transfer the land is taken away as soon as a notice under Section 9(2) is published. The right to transfer continues subject to the provision contained in Sub-section (6) of the Act up to the stage of the publication of a notice under Section 9(2). Consequently, any transfer, made after the publication of the notice under Section 9(2) would be void under Sub-section (8) of the Act.
13. In the light of the aforesaid provisions, the notice under Section 10 was issued by the prescribed authority to the brother, of the petitioner, on 19.2.1986. The land was inherited through a registered will dated 28.5.1979 by the petitioner upon the death of the testator on 9.10.1982 i.e., prior to the issuance of the notice. Consequently, in view of the explanation to Sub-clause (8) of Section 5 of the Act, the inheritance of the land as not void.
14. In view of the aforesaid and in view of the fact that the, will was duly proved in the proceedings under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, the-Prescribed Authority committed a manifest error in ignoring the order passed under Section 229-B of the Act and in further, ignoring the will on the ground that it was executed after 24.1.1971. The approach adopted by the prescribed authority as well as by the appellate authority cannot be sustained. Accordingly, the imputed orders dated 2.6.1987 and 29.2.1988 passed by the prescribed authority and the appellate authority respectively are quashed. The writ petition is allowed.