# Dhyan Singh v. State of U.P. and others

- **Citation:** (2006) 1 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-10
- **Case number:** Civil Misc. Writ Petition No.23854 of 1989
- **Bench:** Bharti Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhyan-singh-v-state-of-u-p-and-others-40633
- **Pages:** 4

## Headnote

Holding Act, 1960, Section 5 (6)-Gift
deed in favour of grand son (daughter's
son)-being irrevocable instrument-can
not be termed as "Benami Transaction"-
Order declaring surplus land-can not
sustained.

Held: Para 10 and 13

The proviso (b) aforesaid as it stands
says that private transaction is not a
benami transaction if it's not made for
the immediate or deferred benefit of the
tenure-holder or other members of his
family. The gift deed in the present case
is irrevocable instrument and because it
was registered, it was not benami
transaction nor it had been to the
members of the family of the donee.
Because it cannot be said that the
daughters son is the member of the
family of the donee, the daughter's son
was not included as member of the
family of donee at the relevant time.
Such being the case, the submission
made by the learned counsel for the
petitioner have force in it.

Taking into consideration the entire facts
and circumstances, I am of the opinion
that the submissions made by the
learned counsel for the petitioner have
substance and are liable to be accepted
and the impugned order of the appellate
authority suffers from manifest error law
which is liable to be set aside.

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
had constructed house on a particular
land, was not allotted the house over the
land allotted by the impugned order, he
may move application before Deputy
Director consolidation for redressal of his
grievance to that extent only.

14. In view of above discussion, it is
held that the chak could also be
partitioned
before
notification
under
section 52 of the U.P. Consolidation of
Holdings Act in case cause of action for
partition arises.

15. As a result of foregoing
discussion, the writ petition being devoid
of merit is dismissed accordingly subject
to the above observations. There will be
no order as to costs. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2006

BEFORE
THE HON'BLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No.23854 of 1989

Dhyan Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.C. Gupta

Counsel for the Respondents:
Sri M.M. Chaturvedi
S.C.

U.P. Imposition of Ceiling on Land
Holding Act, 1960, Section 5 (6)-Gift
deed in favour of grand son (daughter's
son)-being irrevocable instrument-can
not be termed as "Benami Transaction"-
Order declaring surplus land-can not
sustained.

Held: Para 10 and 13

The proviso (b) aforesaid as it stands
says that private transaction is not a
benami transaction if it's not made for
the immediate or deferred benefit of the
tenure-holder or other members of his
family. The gift deed in the present case
is irrevocable instrument and because it
was registered, it was not benami
transaction nor it had been to the
members of the family of the donee.
Because it cannot be said that the
daughters son is the member of the
family of the donee, the daughter's son
was not included as member of the
family of donee at the relevant time.
Such being the case, the submission
made by the learned counsel for the
petitioner have force in it.

Taking into consideration the entire facts
and circumstances, I am of the opinion
that the submissions made by the
learned counsel for the petitioner have
substance and are liable to be accepted
and the impugned order of the appellate
authority suffers from manifest error law
which is liable to be set aside.

(Delivered by Hon'ble Bharti Sapur, J.)

1. This petition has been filed
against an order dated passed by the
appellate authority under section 13 of the
U.P. Imposition of Ceiling on Land
Holdings Act, 1960, by which the
appellate authority has rejected the claim
of Dhyan Singh that the gift deed made in
his favour on 16.2.1972 could not get the
benefit of proviso (b) of section 5 (6) of
the Act aforesaid.

2. The facts of the case are that one
Ramdhar was tenure holder in Village
Nagnedhi,
Pargana
Naraini,
District
Banda. Ramdhar made two transactions
on 16.2.1972 i.e. to say after coming into
force of U.P. Imposition of Ceiling on
1 All] Dhyan Singh V. State of U.P. and others
165
Land Holdings Act, 1960 (hereinafter
referred to as the Act) on 24.01.1971. By
a registered sale deed he passed on some
plots to one of his grand son i.e.
daughter's son and on the same date, he
executed gift deed on 16.2.1972, which
was registered in favour of the petitioner
who was on that date a minor. By the gift
deed the petitioner also a grandson was
given plots no. 946 to 950, 856 to 864,
866, 867, 945, 227, etc. During the course
of consolidation operations, the plots were
converted into plots no. 449 and 481. The
plots were then included n the petitioner's
chak.

3. According to the petitioner during
the
consolidation
proceedings,
the
aforesaid chaks were recorded in his name
and he was also held to be in possession
of the same. The fact that consolidation
authorities passed order in favour of the
petitioner, has not been denied in the
counter affidavit in reply to para 3 of the
writ petition.

4. It is the petition's case that in the
month of August, 1982 when the
petitioner attained majority, he came to
know about the judgment and order
passed by the consolidation authorities in
respect of plots which have been gifted to
him. He also came to know that the said
plots
have
been
declared
surplus.
Thereafter the Ceiling proceedings were
initiated
in
which
the
petitioner
participated and an order was passed
against the petitioner on 22.5.1986, by
which it was held, that because the gift
deed was without consideration, it would
be benami transaction and the land would
have to be declared as surplus. Aggrieved
the order dated 22.5.1986, the petitioner
moved an appeal under section 13 of the
Act, which was rejected by the appellate
authority vide order dated 3.8.1989. It is
this order which is impugned in the
present writ petition.

5. Learned counsel for the petitioner
has argued that the impugned order is bad
because
the
authorities
below
had
committed manifest error of law in
holding that the registered gift deed was a
benami transaction. He has further argued
that the appellate authority has committed
manifest error in holding that earlier
orders had become final against the
petitioner and that the land has been
wrongly declared as surplus. He has
further argued that the appellate authority
has taken a view which is erroneous by
saying that the gift deed was not executed
for consideration and therefore it could
not be called a transfer and the appellate
authority has wrongly come to the
conclusion that gift deed was not a proper
document of transfer which can be taken
into consideration under the proviso (b) to
section 5 (6) of the Act.

6. Learned counsel for the petitioner
has also brought into the notice of this
Court that on 16.2.1972 a sale deed was
registered in favour of the brother of the
petitioner who was also a daughter's son
and the plots which were transferred to
him by way of the gift deed dated
16.2.1972 were excluded from ceiling.
Learned counsel for the petitioner has
informed that against the order releasing
the said land from ceiling, the State had
filed a writ petition no. 35 of 1989 and the
said writ petition was dismissed by this
Court on 7.1.1998. The State has not filed
appeal against the order dated 7.1.1998
and therefore that order has become final.

7. Learned counsel for the petitioner
has also argued on the basis of parity that
166 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the plots which were gifted to petitioner,
should have been excluded from ceiling.

8. It is the contention of the learned
counsel for the petitioner that the gift
deed dated 16.2.1972 was a registered
document and the conclusion drawn by
the appellate authority that it was without
consideration
is
patently
erroneous
because a gift is a good transaction if it is
registered document. The word "gift" is
defined under sub-section (xii) of section
2 of the Gift Tax Act, 1958, which is
reproduced below:

"(xii) "gift" means the transfer by
one person to another of any existing
movable or immovable property made
voluntarily and without consideration in
money or money's worth, and includes the
transfer or conversion of any property
referred to in section 4, deemed to be a
gift under that section."

9. The gift made on 16.2.1972 was a
registered document. This is denied by the
State. I have perused the provision of
section 5 (6) of the Act, which reads as
under:

"5. Imposition of ceiling-
(6) In determining the ceiling area
applicable
to
a
tenure-holder,
any
transfer of land made after the twentyfourth day of January, 1971, which but
for the transfer would have been declared
surplus land under the Act, shall be
ignored and nor taken into account:
Provided that nothing in this sub-section
shall apply to-
(a) 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 transation or for immediate
or deferred benefit of the tenureholder or other members of his
family.
Explanation I- For the purpose of this
sub-section, the explanation transfer of
land made after the twenty-fourth day of
January, 1971 includes-
(a) a declaration of a person as a
co-tenure-holder made after the twentyfourth 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, 1971;
(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."

10. The proviso (b) aforesaid as it
stands says that private transaction is not
a benami transaction if it's not made for
the immediate or deferred benefit of the
tenure-holder or other members of his
family. The gift deed in the present case is
irrevocable instrument and because it was
registered, it was not benami transaction
nor it had been to the members of the
family of the donee. Because it cannot be
said that the daughters son is the member
of the family of the donee, the daughter's
son was not included as member of the
family of donee at the relevant time. Such
being the case, the submission made by
1 All] Dr. Subash Chand V. State of U.P. and others
167
the learned counsel for the petitioner have
force in it.

11. In support of his argument,
learned counsel for the petitioner has
relied upon a decision of this Court in the
case of Dayal Singh vs. State of U.P.,
reported in 1981 ALJ 808 in which this
Court has held that where the transfer is
made by irrevocable instruments such as
sale deeds, the benefit of proviso (b) to
sub-section (6) of section 5 of the Act can
be given.

12. Learned counsel for the
petitioner has argued that the impugned
order
is
discriminatory
against
the
petitioner and is violative of Article 14 of
the Constitution of India, on account of
the fact that benefit of exclusion of land
from the purview of land ceiling by virtue
of sale deed dated 16.2.1972 will be given
to one grand son of the daughter while the
another grand son from the daughter i.e.
the petitioner was deprived of the benefit
of proviso (b) to sub-section (6) of section
5 of the Act.

13. Taking into consideration the
entire facts and circumstances, I am of the
opinion that the submissions made by the
learned counsel for the petitioner have
substance and are liable to be accepted
and the impugned order of the appellate
authority suffers from manifest error law
which is liable to be set aside.

14. The writ petition is allowed. The
impugned order dated 03.08.1989 passed
by the appellate authority i.e. Additional
Commissioner
(Nyayik),
Jhansi
is
quashed. There will be no order as to
costs.

Petition Allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2005

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 32717 of 2003

Dr. Subash Chand

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri A.K. Singh
Sri R.N. Singh
Sri V.K.S. Chandel

Counsel for the Respondents:
C.S.C.

U.P. Govt. Servant (Discipline & Appeal)
Rules
1999-rule
4,6,
7-Suspension
Order-prolong
suspension
without
serving charge sheet. No allegation like
fabrication
of
false
record
or
embezzlement-which
require
investigation-nor
pendency
of
any
Criminal trail-despite of court's direction
No charge sheet served-for long period
of 2 years-held-authorities can not be
allowed sit idle without any disciplinary
inquiry it can be termed as arbitrary,
malafide-suspension order vitiates from
its very inception quashed.

Held: Para 54 & 55

It is also not the case in the counter
affidavit that the allegations are of such
a nature, like fabrication of false records
or
embezzlement
of
money,
which
requires investigation or scrutiny of
record
which
may
take
some
considerable time in ascertaining the
facts for framing the charges. It is also
not
the
case
of
respondents
that
suspension has been resorted to during
investigation, inquiry or pendency of