By Court

A proceeding under the provision of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, was started against petitioner no.1. Thakur Girja Nandan Singh. After service of the draft statement the petitioner filed objection under section 10 (3) of the Act. The same has been disposed by of the Sub-divisional Officer, Sitamarhi, on 29. 2.1976. A copy of the aforesaid order is Annexure 5 to the writ application. The petitioner went in appeal against the aforesaid order which was disposed of on 17.5.1976 by the Collector under Annexure 6 to the writ application. Thereafter the petitioner moved in revision before the Board of Revenue. The revision application has been disposed of by Annexure 7 by the Additional Member. Board of Revenue The petitioners pray for quashing of these annexures.

2. Four contentions have been raised in this court and we shall deal with each of them separately.

3. Learned Counsel for the petitioners contended that by a registered deed of gift dated 29.3.1963, 61.59 acres of land were gifted by petitioner no.1 in favour of his three daughters. This gift was under the permissive provision of section 5 (5) of the Act. The land so gifted should have been excluded from consideration. The order of the Addl. Member, Board of Revenue, mentions that this point was not pressed by learned counsel for the petitioner. Learned counsel for the petitioners pointed out that it is stated in paragraph 26 of the petition that this point was pressed. It was, therefore on account of some confusion that the observation aforesaid has been made in the order of the Additional Member, Board of Revenue. So far as the appellate court is concerned, it observed that neither the date of gift has been furnished nor the registered document or certified copy thereof has been produced. On these grounds it repelled the contention of the land-holder. So far as the date of gift is concerned that is clearly given in the objection under section 10 (3) of the Act, that has been filed by the petitioners. The production of the original or certified copy of the document was not necessary, it was contended as the fact of donation possession and mutation of the name of the donee is mentioned in the draft statement itself The learned counsel says that in the circumstances it was not necessary for the petitioners to produce the document unless directed by a specific order. The contention of learned counsel appears to be correct. The assertion made by learned counsel with reference to the draft statement that was served on the petitioners as also from the copy of the draft statement in the record of the case which was produced during the course of argument is correct. Learned counsel for the petitioners further pointed out that in the earlier proceeding under the unamended provision of the Act, gift was recognised. A copy of the order dated 15.10.1971 passed by the Deputy Collector, Land Reforms, has beer marked as Annexure 1 to the writ application. So far as the order of the Sub-divisional Officer is concerned it has been mentioned that there is no such provision in section 5 (5) of the Act. The learned Sub-divisional Officer however has not noticed that at the relevant time section 5 (5) of the statute book and it was only by Act, 1 of 1973 that the aforesaid provision was deleted. At the relevant time, it was legally permissible to transfer land by the landholder in favour of his daughters. The reason given by the Sub-divisional officer also does not appear to be good reason in law. In the circumstances. it will have to be reconsidered by the authorities whether the gift in Question is covered by section 5 (5) of the Act, as it then existed and if so covered the lands gifted have to be excluded from consideration for the purpose of determining the Ceiling Area of the family. It is made clear that in case the gifted lands are excluded from consideration so far as this case is concerned, the authorities will