# Harish Chandra v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 592
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-13
- **Case number:** Writ C. No. 2372 of 1989
- **Bench:** Mrs. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-chandra-v-state-of-u-p-ors-45232
- **Pages:** 7

## Headnote

Holdings Act 1960 - Section 5(6) - while
determining the ceiling area of a tenure
holder any transfer of land made after 24
January 1971 which but for the transfer
would have been declared as surplus
shall be ignored and not taken into
account - Notices under Section 10(2) - '
will' which is a testamentary document
comes into effect only upon the death of
the testator - 'will' by virtue of its
intrinsic
character
is
naturally
"ambulatory" - revocable during the
lifetime of the testator - A 'will' in its
fundamental terms merely embodies a
disposition of property which is to take
effect after the death of the deceased -
held - 'will' by its very nature is distinct
from a 'transfer' - tenure holder failed to
establish that 'transfer' falls within the
ambit of clause (b) of the Proviso to
section 5(6) - impugned orders passed by
the Prescribed Authority and Additional
Commissioner quashed. (Para 7, 8 & 11)

It is clear on a holistic reading of sub section
5(6) that transfers made after the cutoff date
1 All. Harish Chandra Vs. State of U.P. & Ors.
593
(i.e.24 January 1971) are not ipso facto liable
to be ignored - A transfer, even though made
after the cutoff date, can still stand saved
provided the tenure holder is able to establish
that it falls within the ambit of clause (b) of the
Proviso. - it is evident from the order of the
Additional Commissioner that the will executed
in favour of the brothers of the petitioner on 21
October 1974 has not been tested or evaluated
on the anvil of clause (b) at all - The Additional
Commissioner while proceeding to reject and
ignore that transfer does not record any
findings that the transaction was not made
bona fide or that it did not satisfy the other
factors which stand enumerated in that clause.
(Para 7)

Held: - A will would clearly not fall within the
scope of the expression "transfer" as employed
in Section 5 (6). The will executed in favour of
the brothers of the petitioner could not have
been held or recognized as embodying a
transfer for the purposes of the Act. A will
which was executed in favour of the brothers
of the petitioner could not be said to fall within
the ambit of Section 5(6) of the Act. (Para 10)

Writ Petition allowed. (E-7)
List of cases cited: -

## Text

592 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In view of the above discussion,
the order of the Deputy Director of
Consolidation is accordingly set-aside.
The revision of the petitioners shall stand
restored once again. The petitioners and
the opposite parties shall put in appearance
before
the
Deputy
Director
of
Consolidation on 10.02.2020. Thereafter,
the proceedings shall be held keeping in
mind the observations made hereinabove
and also the observations made by the
Writ Court earlier vide its judgment dated
16.04.1975.

26. The petitioners claim to have
filed the Lease and other documents
before the D.D.C. along with the review
application. If the same are available on
record the same shall be taken into
consideration. Otherwise it shall be
open for the petitioners to again file the
said documents if the occasion so
requires.

27. It is however, made clear that the
claim of the petitioners which is to be
considered, shall be restricted to only two
Gatas bearing No. 1447/1 and 1448/1, as,
it is only these two Gatas regarding which
claim was raised by the petitioners' father
in the consolidation proceedings in the
first place, in his objections, a copy of
which has been filed with the counter
affidavit.

28.

The
Deputy
Director
of
Consolidation shall make an earnest
endeavour to complete the proceedings,
after remand, within a period of one year
from the date of submission of a certified
copy of this order before him.

29. The writ petition is allowed in
part in the aforesaid terms.
----------
(2020)1ILR 592

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE MRS. YASHWANT VARMA, J.

Writ C. No. 2372 of 1989

Harish Chandra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Bhushan, Dr. G.S.D. Mishra, Sri
H.N. Pandey, Sri H.N. Sharma, Sri Karuna
Srivastava, Sri Ramesh Chandra Singh, Sri
S.K. Srivastava

Counsel for the Respondents:
C.S.C., Sri Shiv Pratap Singh Rathore

A. The U.P. Imposition of Ceiling on Land
Holdings Act 1960 - Section 5(6) - while
determining the ceiling area of a tenure
holder any transfer of land made after 24
January 1971 which but for the transfer
would have been declared as surplus
shall be ignored and not taken into
account - Notices under Section 10(2) - '
will' which is a testamentary document
comes into effect only upon the death of
the testator - 'will' by virtue of its
intrinsic
character
is
naturally
"ambulatory" - revocable during the
lifetime of the testator - A 'will' in its
fundamental terms merely embodies a
disposition of property which is to take
effect after the death of the deceased -
held - 'will' by its very nature is distinct
from a 'transfer' - tenure holder failed to
establish that 'transfer' falls within the
ambit of clause (b) of the Proviso to
section 5(6) - impugned orders passed by
the Prescribed Authority and Additional
Commissioner quashed. (Para 7, 8 & 11)

It is clear on a holistic reading of sub section
5(6) that transfers made after the cutoff date
1 All. Harish Chandra Vs. State of U.P. & Ors.
593
(i.e.24 January 1971) are not ipso facto liable
to be ignored - A transfer, even though made
after the cutoff date, can still stand saved
provided the tenure holder is able to establish
that it falls within the ambit of clause (b) of the
Proviso. - it is evident from the order of the
Additional Commissioner that the will executed
in favour of the brothers of the petitioner on 21
October 1974 has not been tested or evaluated
on the anvil of clause (b) at all - The Additional
Commissioner while proceeding to reject and
ignore that transfer does not record any
findings that the transaction was not made
bona fide or that it did not satisfy the other
factors which stand enumerated in that clause.
(Para 7)

Held: - A will would clearly not fall within the
scope of the expression "transfer" as employed
in Section 5 (6). The will executed in favour of
the brothers of the petitioner could not have
been held or recognized as embodying a
transfer for the purposes of the Act. A will
which was executed in favour of the brothers
of the petitioner could not be said to fall within
the ambit of Section 5(6) of the Act. (Para 10)

Writ Petition allowed. (E-7)
List of cases cited: -

1. S. Rathinam Vs. L.S. Mariappan2

2. Beru Ram and Others v. Shankar Dass and
Others, AIR 1999 J&K 55

3. Mahadeo Vs Shakuntalabai3

4. State of West Bengal and Anr. v. Kailash
Chandra Kapur and Ors., (1997) 2 SCC 387

5. Beru Ram v. Shankar Dass, AIR 1999 J & K 55

6. S. Rathinam alias Kuppamuthu and Ors. v.
L.S. Mariappan and Ors., (2007) 6 SCC 724

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for parties.

2. This petition raises the issue of
whether a will when executed would
amount to a transfer as contemplated under
Section 5(6) of the U.P. Imposition of
Ceiling on Land Holdings Act 19601.
Before proceeding to answer the question
as framed it would be pertinent to notice
the following essential facts.

3. The original tenure holder Devi
Dutt had two sons namely Sheo Sampat
Lal and Rishal Chandra. Sheo Sampat Lal
had one son Raj Narain who died in 1954.
However, Raj Narain on 23 April 1954
executed a will in favour of the petitioner
bequeathing his share in the ancestral
property. It is stated that on the basis of the
aforesaid will the name of the petitioner
was entered in the revenue records on 1
January 1955. Rishal Chandra had one son
named Ram Chandra, the father of the
present petitioner. During the course of
consolidation
operations
chaks
were
carved out equally between the petitioner
and Ram Chandra. Ram Chandra, the
father of the petitioner, is stated to have
entered into a second marriage from which
Munish Chandra and Subhash Chandra
were born. Since the petitioner already
stood recorded over half of the ancestral
property and chaks had also been carved
out accordingly during the course of
consolidation operations, Ram Chandra
executed a will on 21 October 1974
bequeathing his half share in the ancestral
property to Munish Chandra and Subhash
Chandra. Ram Chandra ultimately died on
22 November 1983. Notices under Section
10(2) of the Act, however, came to be
issued in his name on 24 September 1984.
On receipt of that notice and since Ram
Chandra had died in the meanwhile, the
petitioner and his two brothers filed
objections before the Prescribed Authority.
The Prescribed Authority by his order of
21 February 1986 declared 10.15 acres as
surplus. While framing the said order,
594 INDIAN LAW REPORTS ALLAHABAD SERIES
although the Prescribed Authority noticed
the will executed in favour of the
petitioner on 23 April 1954, he held the
petitioner and his two brothers liable to be
recognised as holding 1/3rd share in the
entire property. When the matter was
taken
in
appeal
the
Additional
Commissioner in terms of his order of 5
November 1988 ruling upon the validity of
the will executed in favour of the brothers
of the petitioner held that since that had
been executed on 21 October 1974 and
thus evidently after the cut off date of 24
January 1971 as prescribed in Section 5(6)
of the Act, it was liable to be ignored. It is
in the aforesaid backdrop that the instant
writ petition came to be preferred before
this Court.

4. Assailing the orders impugned, Sri
R.C.
Singh,
learned
Senior
counsel
appearing for the petitioner, contends that
both the authorities have clearly erred in
holding the petitioner and his two brothers
to be co-sharers to the extent of 1/3rd each
in the ancestral property. Referring to the
will executed in favour of the petitioner on
23 April 1954, it was submitted that by
virtue of that testament, the petitioner
came to hold one half share in the
ancestral property. According to Sri Singh
since the consolidation authorities had also
recognised his rights and had made
allotments in favour of the petitioner and
Ram Chandra in equal proportion, there
was no occasion for the ceiling authorities
to ignore the will and the orders passed in
those proceedings. Sri Singh submitted
that his two brothers inherited one half
share in the ancestral property by virtue of
the will executed by the father on 21
October 1974. According to Sri Singh the
land holding of the petitioner and his two
brothers were liable to be assessed under
the
Act
in
accordance
with
the
testamentary
instruments
referred
to
above. Sri Singh submitted that the notice
under Section 10(2) had undisputedly
come to be issued after the death of the
father of the petitioner. He assailed the
impugned orders also on the ground that
although the petitioners appeared and
contested those proceedings, no individual
notices under section 10(2) of the Act had
been issued to them. Sri Singh then
submitted
that
the
Additional
Commissioner
has
clearly
erred
in
construing the will executed by his father
in favour of his two brothers to be a
transfer. Sri Singh contended that a will
only embodies the intention of the testator
to devolve property after his death.
According to Sri Singh, a will only
evidences a disposition of property which
is to take effect upon the death of the
testator. In view of the above, it was his
submission that the will could not be
construed as a "transfer" as contemplated
under Section 5(6) of the Act. In support
of his submission, Sri Singh relied upon
the following principles as enunciated by
the Supreme Court in S. Rathinam Vs.
L.S. Mariappan2: -

"19.
A
will
denotes
a
testamentary document. It means a legal
declaration of the intention of a testator
with respect to his property which he
desires to be carried into effect after his
death. It is in its own nature ambulatory
and revocable during his life.

20. In Uma Devi Nambiar and
Others v. T.C. Sidhan (Dead) [AIR 2004
SC 1772], it was held :

"10. Will is a translation of the
Latin word "voluntas", which was a term
used in the text of Roman law to express
the intention of a testator. It is of
significance that the abstract term has
come to mean that document in which the
1 All. Harish Chandra Vs. State of U.P. & Ors.
595
intention is contained. The same has been
the case with several other English law
terms, the concrete has superseded the
abstract obligation, bond, contract, are
examples (William: Wills and Intestate
Succession , p. 5). The word "testament" is
derived from " testatio mentis ", it testifies
the determination of the mind. A Will is
thus defined by Ulpians as " Testamentum
est mentis nostrae justa contestatio in id
sollemniter facta to post mortem nostrum
valeat ." Modastinus defines it by means
of voluntas. It is "voluntatis nostrae justa
sententia, de eo quod quis post mortem
suam fieri vult (or velit )"; the word " justa
" implying in each, that, in order to be
valid, the testament must be made in
compliance with the forms of law. It
means, "the legal declaration of a man's
intentions, which will be performed after
his death". A last Will and testament is
defined to be "the just sentence of our
Will, touching what we would have done
after our death". Every testament is
consummated by death, and until he dies,
the Will of a testator is ambulatory. Nam
omne testamentum morte consummatum
est;
et
voluntae
testamentoric
est
embulatoria usque od mortem. (For, where
a testament is, there must also of necessity
be death of testator; for, a testament is of
force after men are dead; otherwise it is of
no strength at all while the testator liveth.)
A "Will", says Jarman, "is an instrument
by which a person makes a disposition of
his property to take effect after his
decease, and which is in its own nature
ambulatory and revocable during his life."
(Jarman on Wills, 1st Edn., p. 11.) This
ambulatory character of a Will has been
often pointed out as its prominent
characteristic, distinguishing it, in fact,
from ordinary disposition by a living
person's
deed,
which might,
indeed
postpone the beneficial possession or even
a vesting until the death of the disposer
and yet would produce such postponement
only by its express terms under an
irrevocable instrument and a statement that
a Will is final does not import an
agreement not to change it. (Schouler: Law
of Wills, S. 326). A Will is the aggregate
of man's testamentary intentions so far as
they are manifested in writing, duly
executed according to the statute."

21. A testator by his will, may
make any disposition of his property
subject to the condition that the same
should not be inconsistent with the laws or
contrary to the policy of the State. A will
of a man is the aggregate of his
testamentary intentions so far as they are
manifested in writing. It is not a transfer
but a mode of devolution. [See Beru Ram
and Others v. Shankar Dass and Others -
AIR 1999 J&K 55]. "

5. Refuting those submissions, learned
Standing Counsel submitted that since no
partition had been affected amongst the brothers
in formal and legal terms, the respondents
correctly recognised them as holding 1/3rd
share in the ancestral property. According to the
learned Standing Counsel while notices may not
have been issued individually to the petitioner
and his brothers, since they appeared and
contested the matter before the Prescribed
Authority
as
well
as
the
Additional
Commissioner, no prejudice as such stood
caused and consequently the impugned orders
are not liable to be set aside on this score.

6. The answer to the question of
whether a will would be liable to be
construed as a "transfer" would depend
upon the construction of Section 5(6) of
the Act. That provision reads thus: -

"(6) In determining the ceiling
area applicable to a tenure-holder, any
596 INDIAN LAW REPORTS ALLAHABAD SERIES
transfer of land made after the twentyfourth 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 :

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 transaction
or for immediate or deferred benefit of the
tenure-holder or other members of his
family.

Explanation I.--For the purposes
of this sub-section, the expression 'transfer
to 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,
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.

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. The Section prescribes that while
determining the ceiling area of a tenure
holder any transfer of land made after 24
January 1971 which but for the transfer
would have been declared as surplus shall
be ignored and not taken into account. On
plain terms sub-section (6) appears to
empower
the
respondents
while
implementing the provisions of the Act to
ignore transfers made after 24 January
1971. However as is evident from the
Proviso appended to sub-section (6), a
transfer per se is not liable to be rejected.
This, since firstly, transfers in favour of
persons including those specified in
Section 5(2), are excluded from the
operation of the injunct engrafted in subsection (6). Section 5(2) enumerates the
categories of persons and legal entities
who would stand exempted from the
rigour of Section 5(1). Amongst others, it
includes the Central Government, State
Government, Local Authority, University,
an intermediate college etc. Similar
safeguards stand placed in respect of
transfers
that
may
be
affected
by
individuals after 24 January 1971. This is
evident from a perusal of clause (b) to the
Proviso which states that it would be open
for a tenure holder to commend to the
respondents not to ignore a transfer made
after the cut off date provided it is
established that it was made in good faith,
for adequate consideration and by way of
an irrevocable instrument as also in a
situation where the transfer is made for the
immediate or deferred benefit of the tenure
holder or the members of his family. On a
holistic reading of sub section (6) it is
therefore manifest that transfers made after
the cut off date are not ipso facto liable to
be ignored. A transfer, even though made
after the cut off date, can still stand saved
provided the tenure holder is able to
establish that it falls within the ambit of
clause (b) of the Proviso. As this Court
reads
the
order
of
the
Additional
Commissioner, it is evident that the will
executed in favour of the brothers of the
petitioner on 21 October 1974 has not
been tested or evaluated on the anvil of
1 All. Harish Chandra Vs. State of U.P. & Ors.
597
clause
(b)
at
all.
The
Additional
Commissioner while proceeding to reject
and ignore that transfer does not record
any findings that the transaction was not
made bona fide or that it did not satisfy the
other factors which stand enumerated in
that clause.

8. Notwithstanding the above, in the
considered view of the Court, the
impugned orders are liable to be set-aside
on a more fundamental ground. Subsection (6) speaks of "transfer". As is
evident upon a conjoint reading of the
substantive provision of that Section and
the Proviso appended thereto, it clearly
contemplates a transfer made in praesenti.
This, since evidently that provision would
stand attracted only if a transfer has been
made, completed and accomplished after
the 24th of January 1971. It clearly
operates in respect of a disposition of
property made after the cut off date which
has taken effect. It cannot by any stretch
be read as taking within its ambit
something
which
is
indefinite
or
undetermined. As was lucidly explained
by the Supreme Court in S Rathinam, a
will which is a testamentary document
comes into effect only upon the death of
the testator. It was also significantly
observed that a will by virtue of its
intrinsic
character
is
naturally
"ambulatory". This since it is always
revocable during the lifetime of the
testator. A will in its fundamental terms
merely embodies a disposition of property
which is to take effect after the death of
the deceased. It is in that light that the
Supreme Court held that a will by its very
nature is distinct from a transfer.

9. Dealing with an identical question,
the Supreme Court in Mahadeo Vs
Shakuntalabai3 was called upon to
consider whether a will would fall within
the ambit of Section 57 of the Bombay
Tenancy and Agricultural Lands Act 1958.
Section 57(2) of that Act provided that any
transfer of land made in violation of subsection (1) would be invalid. Dealing with
that question, the Supreme Court held
thus: -

"5. On a plain reading of the
aforesaid provision, it is clear that transfer
without the previous sanction of the Collector
is impermissible by way of sale, gift,
exchange, mortgage, lease or assignment.
There is no prohibition in so far as the transfer
of land by way of a Will is concerned. In fact,
in view of the decision of this Court in State
of West Bengal and Anr. v. Kailash Chandra
Kapur and Ors. (1997) 2 SCC 387,
devolution of property by way of a Will does
not amount to a transfer of the property. This
is clear from para 12 of the aforesaid decision
wherein it has been observed that transfer
connotes, normally, between two living
persons during life. However, a Will takes
effect after demise of the testator and transfer
in that perspective becomes incongruous.

6. That the beneficiary of a Will
receives the property by way of devolution and
not by way of transfer is also made clear by the
decision of this Court in S. Rathinam alias
Kuppamuthu and Ors. v. L.S. Mariappan and
Ors. (2007) 6 SCC 724 wherein this Court has
held in para 21 that:

"21. A testator by his Will, may
make any disposition of his property subject to
the condition that the same should not be
inconsistent with the laws or contrary to the
policy of the State. The Will of a man is the
aggregate of his testamentary intentions so far
as they are manifested in writing. It is not a
transfer but a mode of devolution."

In coming to this conclusion, this
Court referred to Beru Ram v. Shankar
Dass AIR 1999 J & K 55."
598 INDIAN LAW REPORTS ALLAHABAD SERIES

10. From the position of law as exposited
in S. Rathinam and Mahadeo, it is manifest
that a will would clearly not fall within the
scope of the expression "transfer" as employed
in Section 5 (6). The will executed in favour of
the brothers of the petitioner could not have
been held or recognised as embodying a
transfer for the purposes of the Act. It is
manifest that the will which was executed in
favour of the brothers of the petitioner could
not be said to fall within the ambit of Section
5(6) of the Act. This in itself renders the
impugned orders wholly unsustainable.

11. The writ petition is accordingly
allowed. The impugned orders dated 21
February 1986, passed by the Prescribed
Authority and 5 November 1988 passed by the
Additional Commissioner are hereby quashed.
----------
(2020)1ILR 598

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE
THE HON'BLE AJAY BHANOT, J.

Writ C No. 13214 of 2019

Anant Narayan Mishra ...Petitioner
Versus
The Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha, Sri Girijesh Kumar
Mishra, Sri Ratnakar Upadhyay

Counsel for the Respondents:
A.S.G.I., Sri Ajeet Kumar Singh, Sri Ishan
Shishu, Sri K.R. Singh, Sri Krishna Raj Singh
Jadaun, Sri Rijwan Ali Akhtar, Sri Vikram D.
Chauhan, Sri V.K. Upadhyaya

A. Moral turpitude - definition - wide
ambit
-
criminal
offence
does
not
automatically lead to an inference that
the act is of moral turpitude - offences
can be categorized as those involving
moral turpitude will depend on facts of
each case.

The Court found that the issue whether the
offending act attributed to the petitioner, fell in
the categories of "heinous crime (including
violence and intimidation) or was an act of
moral turpitude", is
wholly absent from
consideration. The impugned order suffers from
non-application of mind, and was passed
mechanically. (Para 35)

B. Education - essence - its values -
modern
threats
-
can
be
curtailed
through discipline - punishments for
violation of discipline - Court issued
directions to the State to create a reform,
self-
development
and
rehabilitation
programme for accused students.

C. Punishment - deterrent approach -
punitive approach - reformative approach
- self development and rehabilitation.

The Court finds that there is no structured,
professionally
designed
reform,
self
development and rehabilitation programme, or
therapeutic support system backed by a legal
frame work to deal with the delinquent
students and like issues in the universities.
(Para 91)

D. Article 21 - Constitution of India -
includes
right
to
human
dignity
-
jurisprudential
aspect
-
punishment
should protect the essential sanctity of
human life.

Punishment has to be effective to serve its
purpose; however, it cannot be purblind to
human
dignity,
if
it
is
to
retain
its
constitutionality (Para 140)

Failure to consider susceptibility to reform,
while denying the right to access privileges and
activities
of
the
university,
negates
the
possibility of rehabilitation. Absence of an
environment of reform, self development and
rehabilitation in a university, denies the
opportunity of redeeming one's reputation.
Termination of dialogue with the delinquent