1. Briefly, the case o the petitioner is that he is a landowner in village Urmar Tanda. He owned 427 Kanals 3 marlas of land equivalent to 18.1176 st. hectares on the appointed day as defined in Punjab Land Reforms Act, 1973(hereinafter referred to as the Act). He had two sons Baljit Singh and Malkiat Singh. It is alleged that they partitioned the family property in 1964-65 and all the three started cultivating the land which fell to their share. Malkiat Singh, however, died in 1969 leaving a widow and 5 children.In 1971 the petitioner made a gift of 175 kanals 10 marlas of land to Shrimati Devinder Kaur, the widow of the pre-deceased son.
2. The proceedings under the Act were initiated against the petitioner. He pleaded that the land given to his daughter-in-law be not taken into consideration for the purpose of his permissible area. The Assistant Collector held vide order dated May 14, 1976 that the gift made by him in favour of his daughter-in-law was not a bona fide one and was consequently hit by sub-section (5) of Section 4 of the Act. Consequently, he declared some area belonging to the petitioner as surplus land. He went up in appeal before the Additional Commissioner, Jullunder, which was dismissed on November 9, 1977. Thereafter, he filed a revision against the order of the Additional Commissioner before the financial Commissioner who also dismissed the same on May 12, 1978. He has challenged the aforesaid orders through this writ petition. The state has contested it.
3. It is contended by Mr. Amba that the petitioner had partitioned the lad in 1964-65 with his two sons namely Baljit Singh and Malkiat Singh. In view of the death of Malkiat Singh, in 1969, the petitioner gifted land measuring 175 kanals and odd to his daughter-in-law, who was entitled to be maintained by him, bona fide. He further argues that incase Malkiat Singh had been alive she would have been entitled to separate permissible area. In the circumstances, he urged that the gift was a bona fide one ad is protected under sub-sec (5) of Section 4 of the Act.
4. I have heard the learned counsel for the parties at a considerable length. However I agree with the contention of Mr. Amba. Section 4 defines permissible area. Sub-section (5) says that in determining the permissible area, any land which was transferred by sale, gift or otherwise, other than a bona fide sale of transfer after the appointed day but before the commencement of this Act, shall be taken into account as if such land had not been transferred and the onus of proving the transfer as bona fide shall be on the transferor. From a reading of the aforesaid sub-section, it is evident that if any transfer has been made bona fide by a landowner after the appointment of the Act that shall not be taken into account for declaration of surplus area.
5. It is now to be seen whether the gift is bona fide or not. The word 'bona fide' has been defined in Webster's New International Dictionary 2nd Edition as, 'in or with good faith; without fraud or deceit; genuine; as a bona fide transaction.' Section 5 provides that if a land owner has an adult son he shall be entitled to select separate permissible area in respect of each son out of the land under or held by him subject to the condition that the land selected together with the land already owned or held by such, son shall not exceed the permissible area of each such son. The section makes it clear that each son is entitled to separate permissible area from the land of his father. If Malkiat Singh had remained alive, he would have been entitled to a seprate permissible area. Unfortunately He would have been entitled to a separate permissible area. Unfortunately, he died in 1969 leaving a widow and 5 children it was the moral and legal duty of the petitioner, being the father-in-law to maintain the widow and the children of the pre-deceased son. He, in view of the aforesaid obligation, gifted some area out of his land to his daughter-in-law. Admittedly the gift was made after the appointed day but before the commencement of the Act. The facts and circumstances of the case in my view go to show that the transaction of gift by the petitioner to Smt. Devinder Kaur is a bona fide one. Therefore, the State is not entitled to take this area into consideration for the purpose of declaration of the surplus area of the petitioner.
6. For the aforesaid reasons, I accept the writ petition with costs and quash the impugned orders, Counsel's fee Rupees 330/-.
7. Petition allowed.