G. Ramanujam, J.
1. Between the date of commencement of Tamil Nadu Act LVIII of 1961, as amended by Act XVII of 1970 and the notified date, the petitioner herein, had transferred certain lands under two documents in favour of two persons on 18th February, 1970 and 16th February, 1970 by way of gift deeds. The gift deed dated 16th February, 1970 comprised of 1.80 acres equivalent to 1.5 standard acres, and the gift deed, dated 16th February, 1970 comprise of 1.295 standard acres. Thus the total extent covered by the two gift deeds was 2.975 standard acres. The Authorised Officer treated these two gift deeds as void under Section 22 and included these lands as part of the holding of the petitioner and determined his total extent at 16.964 standard acres. That means, there was a surplus of 1.946 standard acres on the date of the commencement of the Act. The inclusion of the lands gifted away by the petitioner in his holding was challenged by him by filing an appeal before the Land Tribunal but without success. The petitioner has therefore approached this Court challenging the decision of the Land Tribunal which in turn affirmed the decision of the Authorised Officer.
2. Before me the learned Counsel for the petitioner contends that the Authorised Officer has erred in holding that both the gift deeds are void under Section 22 and that the reasons given for holding the gift deeds to be void are not correct. It is also submitted by the learned Counsel for the petitioner that the Authorised Officer has not gone into the question of bona fides at all but merely proceeded to declare the gift deeds as void on the basis that the gift deeds infringed the provisions of Section 94 of the Act. The learned Counsel also relies on a judgment of this Court in Naganatha Iyer v. Authorised Officer : (1971)1MLJ274 and submits that the principles laid down in that decision have not been followed either by the Authorised Officer or by the Tribunal.
3. It is seen from the order of the authorities below that the documents were held to be void mainly for the reason that by executing the said two gift deeds the petitioner has prevented the operation of Section 94, and, therefore, they are to be taken to defeat the provisions of the Act. Though the main reason for holding the documents to be void is that the transactions defeat the provisions of the Act, they have also given the reason that though the gift deeds have been executed by the petitioner, the transferees have not let in any evidence to show that the lands have been taken possession of by them and enjoyed in pursuance of the gift deeds and cannot be taken to be real.
4. As regards the main reason given for voiding the gift deeds under Section 22, the authorities below had clearly proceeded on an erroneous basis. The mere fact that the transactions are likely to impinge on the provisions of the Act is by itself not sufficient to hold that the documents are void. If that were the intention, then Section 22 need not entrust the question of deciding the bona fides to be decided by the Authorised Officer under that section, and it can straightaway say that all documents executed between the date of the commencement of the Act and notified date which will naturally infringe the provisions of the Act will automatically be void. Therefore, the fact the documents are likely to affect or infringe in any way the provisions of the Act itself cannot be the ground for holding the documents to be void. In addition to that fact it has to be established that the transactions covered by the documents were not real, but were intended only to defeat the provisions of the Act, and that the transactions are only sham and colourable and not intended to be given effect to by the person who executed the documents. This has been clearly laid down by this Court in the decision referred to above. Therefore, it is not possible to hold that merely because the gift deeds have an impact on Section 94 of the Act, they are void. In addition to that fact the enquiry by the Authorised Officer under Section 22 should have been to find out whether the documents had been executed by the petitioner bona fide with an intention to really pass title to the donees under the two documents or whether they were merely sham and nominal. On this aspect of the case, both the Authorised Officer as well as the Tribunal have stated that though notices were given to the transferees, the transferees did not appear before the Authorised Officer and adduce any evidence to show that they had actually taken possession of the properties and are enjoying the same ever since the date of the execution of the gift deeds in their favour. In the absence of any evidence on the side of the transferees, the Authorised Officer was not inclined to treat the gift deeds as bona fide transactions. The Tribunal also concurred with this view.
5. In this case, it is true that the transferees have not appeared before the Authorised Officer even though notice of the enquiry was given to them and they have not adduced any evidence to prove that they are in enjoyment of the properties gifted to them ever since the dates of the gift deeds. However, the petitioner who is the transferor has adduced evidence to prove that he has parted with not only title but possession in respect of the gifted lands. He has also adduced evidence to show that lands transferred have been registered in the gift deeds. But the mere fact that the registry has been changed in the names of the donees will not automatically prove that the lands have been taken possession of by the donees and they are being enjoyed by them. To find out whether the gift deeds are real, it has to be seen whether the transactions of gift had been given effect to by the petitioner. For that purpose, as to who is in actual possession of the property since the date of gift deeds will be-very material. If possession has not been handed over and the properties continue to be with the petitioner a reasonable inference could be drawn that the gift deeds are only colourable transaction. In this case, both the Authorised Officer and the Tribunal have-proceeded on the basis that they have taken; possession of the properties and are in enjoyment of the same ever since the date of the gift deeds, and therefore, the documents cannot be bona fide transactions. But having regard to the fact that the petitioner ted adduced at least some evidence to show that he has parted with title as well as possession in relation to the properties, covered by the gift deeds, that evidence should have been considered and a finding given thereon. The mere fact that the transferees have not let in any evidence to prove their possession and enjoyment of the properties transferred to them is not a reason for non-consideration of the evidence adduced by the transferor. Therefore, the orders of the authorities below have to be set aside and matter remitted to the Authorised Officer for fresh consideration in the light of what has been stated above. The Authorised Officer will give a finding on the question of possession and enjoyment of the properties transferred subsequent to the date of the gift deeds. The petitioner is at liberty to adduce further evidence on the said question. The Civil Revision Petition is allowed as stated above. No costs.