R.M. Sahai and; A.S. Anand, JJ.
1. The short question that arises for consideration in this appeal is if the High Court committed any error of law in including the land in the holding of the appellant in respect of which a Will had been executed by his father in 1956 in favour of his grand-daughter-in-law.
2. When notices under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act (in brief ‘the Act’) as it stood before its amendment in 1973, were issued, the tenureholder filed objections, one of them being that the land bequeathed in favour of Smt Kalmunnisa, should not be included in his holding. It was accepted by the appellate authority mainly because a will was not transfer. In 1973, however, the law was amended retrospectively and the ceiling area of a tenureholder was reduced. Section 38-B added by way of amendment further empowered the prescribed authority to redetermine the ceiling area of tenureholders. In exercise of this power the prescribed authority issued fresh notices and the appellant claimed that the land covered by the Will should be excluded from his holding as it was bequeathed in favour of Kalmunnisa by his father. This plea was not accepted by any of the authorities. The High Court found that even though it was claimed that the Will was executed in 1956 but it was not mutated in the revenue records till 1971. It further found that the land continued to be in possession of the appellant. For this reliance was placed on the oral evidence led on behalf of the State. Due to these facts the High Court concurred with the finding of fact recorded by the prescribed authority that the Will was only for the purpose of defeating the object of the Act.
3. The learned counsel for the appellant urged that since mutation was effected in revenue records on January 4, 1971 whereas the law was amended from January 24, 1971 the High Court was not justified in recording the finding that the Will was executed in order to defeat the object of the Act. Learned counsel urged that in any case since Will did not amount to transfer it was not covered by sub-section (6) of Section 5 of the Act. We do not consider it necessary to determine if a will executed by a tenureholder is a transfer within meaning of sub-section (6) of Section 5 of the Act as we are of opinion that the finding recorded by the High Court that the Will relied on behalf of the appellant was only to defeat the provisions of the Act, appears to be well-founded. The finding of the ceiling authorities affirmed of (sic) the High Court that it was the appellant who was the real tenureholder of the land in dispute is based on appreciation of oral and documentary evidence and it has not been shown that the finding suffers from any error of law. The submission, therefore, advanced on behalf of the appellant cannot be accepted.
4. It is also urged that the High Court committed an error of law in remanding the case for determining if certain area of the land was unirrigated as the question whether it was in command area should have been decided by the High Court itself. We do not find any merit in this submission as well, as the question whether it was a single-crop land or a double-crop land and whether irrigation facilities were available is a question of fact which could effectively be decided by the ceiling authorities. The appeal consequently fails and is dismissed. But there shall be no order as to costs.