Heard learned counsel for the petitioners', learned standing counsel for the respondents and Learned counsel for the allottees who have filed impleadment application including Sri Umesh Chandra Tewari, learned counsel who has filed impleadment application on behalf of some allottees and who stated that the land was allotted to his clients on 10.12.1990 (even though the appeal of the petitioners was dismissed on 15.02.1991.
Both these writ petitions are directed against the same orders. The first writ petition was filed by Ranveer Singh and Ramesh both sons of Gyan Singh. Second writ petition was filed by Gyan Singh. Gyan Singh died and 7 of his sons were substituted at his place including Ranveer Singh and Ramesh the petitioners of the first writ petition.
Earlier proceedings under U.P. Imposition of Ceiling on Land Holdings Act 1960 were initiated against Smt Rampa, mother of Gyan Singh, 3 bigha 3 biswa 11 biswancies land was taken as surplus from the land of Smt. Rampa. After the death of Smt. Rampa notice under Section 10(2) and Section 29 and 30 of the Act was issued against Gyan Singh on 13.02.1987. The case was registered as ceiling case no.5 State Vs. Gyan Singh on the file of Prescribed authority Budaun. During evidence in the case lekhpal stated that due to inadvertence in the notice dated 13.02.1987 four agricultural plots were not mentioned. Accordingly, permission to issue fresh notice was granted and, thereafter, on 25.07.1987 fresh notice was given Gyan Singh filed objections. One of the objections was that plot nos. 155, 171, 197, 219,278 and 312 (or 342) were wrongly shown as irrigated while in fact they were unirrigated and the said plots were yielding only one crop in a year. It was further pleaded that plot no.219 was in possession of Gajraj Singh and others for 20 years. It was further pleaded that original tenure holder of plot nos. 155,171 and 197 was Smt. Rampa (mother of Gyan Singh) who had died, however, before her death she had executed will in respect of the said plots in favour of Ranveer Singh and Ramesh (sons of Gyan Singh and grand sons of Smt. Rampa). On 27.04.1987 Ranveer Singh and Ramesh filed an application stating therein that plot nos. 155,171 and 197 belonged to them, as their grandmother had executed a will in their favour and Gyan Singh had no concern with the said plots. Thereafter, formal notice under Rule 8 of the Rules framed under Ceiling Act was also issued to Ranveer Singh and Ramesh. The application dated 27.04.1987 filed by Ranveer Singh and Ramesh is Annexure 2 to the first writ petition. As many as 8 issues were framed by the Prescribed authority. After the earlier ceiling proceedings Smt. Rampa was left with 37 bigha 18 biswa and 11 biswancies land. Gyan Singh had 33 bigha 13 biswa and 8 biswancies land. After adding the two the prescribed authority held that Gyan Singh possessed 71 bigha 12 biswa land. The prescribed authority decided the matter against the petitioners on 12.11.1990 holding that Gyan Singh inherited the entire property left behind by her mother and in this manner surplus land with him was 13 bigha, 9 biswa, 15 biswancies in terms of irrigated land.
The prescribed authority held that after service of notice Ranveer Singh and Ramesh had not filed any objection. This is an unnecessary finding. Prior to the notice they had already filed application/objection on 27.04.1987. If they had nothing new to add they were not required to file the same objection again after service of notice.
Objection regarding plot no.219 to the effect that it was in possession of Gajraj Singh and others for 20 years was rightly rejected by the Prescribed authority under issue no.6. Issue no.7 related to the genuineness and validity of the will. The will was not registered. One of its attesting witnesses was examined before the Prescribed authority. Prescribed authority also noted the argument that the names of Ranveer Singh and Ramesh had been mutated in the revenue record on the basis of the will. The will related only to plot nos.155,171 and 197. However, Ranveer Singh and Ramesh wrongly asserted that will also included plot nos.174/2, 181 and 183. The Prescribed authority held that only one of the attesting witnesses i.e. Mahendra Singh was produced and other witnesses and the writer of the will was not produced hence the will was not proved. Under Section 68 Evidence Act it is provided that :
68. Proof of execution of document required by law to be attested -
"If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied."
Some other reasons were also given for holding the will to be not genuine one of which was that the legatees should have been present when the will was being written but they were absent at that time. Legal position is otherwise. If the legatees are shown to have played an over active role in the drafting and signing of the will, it weighs heavily against the genuineness of the will and execution of the will with completely free mind. The prescribed authority also held that apart from filing the application/objection dated 27.04.1987 Ranveer Singh and Ramesh did not participate in the proceedings. An authority reported in Bijendra Bahadur Pal Vs. State of U.P. 1979, ALJ 123 was cited before the Prescribed Authority. However, prescribed authority held that the said authority was not applicable as in that case will had been executed before the enforcement of the ceiling Act. Ultimately prescribed authority held that disputed will was not fully proved and it also did not appear to have legally been executed hence the land mentioned therein will have to be included in the land of Gyan Singh.
In respect of pleas of some plots being grove prescribed authority held that in plot no.278 which was of about 11.5 bighas, 100 trees of Shisham, 200 of Eucalyptus and 200 of mangoes and 20 of Jamun were shown and in the Khasra, Sugar cane, Bajara, Chana was shown to have been sown hence it was not grove and the trees appeared to be either on the boundary or scattered. The finding is quite right. Sugar cane can never be grown in a full fledged grove. Scattered, trees do not convert agricultural plot into grove. Thereafter under issues nos. 3 and 4 nature of certain plots being irrigated or unirrigated was discussed.
Against the order dated 12.11.1990, two appeals were filed one by Gyan Singh being appeal no.2/5 of 1990 and the other by Ramesh and Ranveer being appeal no.3/6 of 1990 both the appeals were dismissed on 15.2.1991 by Additional Commissioner (Adm.) Bareilly Division Bareilly, hence, these writ petitions.
Appellate court further held that as notice was for the first time issued to Gyan Singh in 1987 hence Section 29 and 30 were not attracted.
Section 4-A of U.P. Imposition of Ceiling on Land Holdings Act, 1960 defines irrigated land. Section 29 deals with situation where unirrigated land becomes subsequently irrigated Section 29 (b) is quoted below:
"Any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove-land loses its character as grove-land or any land exempted under this Act ceases to fall under any of the categories exempted"
In the instant case Section 29 will squarely apply to the land left behind by Smt. Rampa as earlier ceiling proceedings were taken against her.
Accordingly, writ petition is allowed both the impugned orders are set aside in part and matter is remanded to the prescribed authority to decide only the following two questions:
1. Whether the will was in fact executed by Smt. Rampa or not ? While deciding this question prescribed authority must specifically keep in mind that if it comes to the conclusion that the will was in fact executed but only for the purpose that Gyan Singh could not hold land more than the permissible ceiling limit, then the will must be given effect to. If a person considers that his legal heir will be having agricultural land beyond the ceiling limit after his death (on clubbing of the land already held by the legal heir and the land which he would be having after the death of the person concerned) still the person concerned is fully entitled to execute will to avoid such result. The law does not prohibit in the least execution of such will. Just as Smt. Rampa could execute the sale deed similarly she could execute will deed also.
2. If some of the plots which initially belonged to Smt. Rampa were treated to be unirrigated in the earlier ceiling proceedings then it must be decided only and only in terms of Section 29 of ceiling Act as to whether they became irrigated afterwards due to availability of State irrigation work. In such scenario private irrigation work coming into existence afterwards is to be ignored.
Petitioners are directed to appear before prescribed authority on 24.08.2011. Prescribed authority shall decide the matter very expeditiously.
Order Date :- 5.7.2011 vkg