SATISH CHANDRA, CJ.

1. These two writ petitions raise the same point. They are hence being disposed of together.

Writ Petition No. 4748 of 1977

2. The Petitioner is tenure-holder. He, on 10th February, 1972, executed a registered deed of gift in respect of his 11 bighas 2 biswas of land in favour of his daughters. Smt. Mithilesh Kumari and Gita Kumari and another in respect of 6 bighas 8 biswas 14 dhurs in favour of Kameshwar Rai, his sister's son. In proceedings under the U.P. Imposition of Ceiling on Land Holdings Act he claimed exemption on 17 bighas 10 biswas 14 dhurs on the basis of the two deeds of gift. The Prescribed Authority did not accept the Petitioner's claim, but on appeal the same was upheld. The finding was that the gift deeds were executed in good faith and for adequate consideration, namely, natural love and affection. The learned Additional District Judge excluded the gifted areas, and found that the remaining land of the Petitioner was within the ceiling limit. Notice u/s 10(2) of the Act was discharged. The appellate decision was rendered on 2nd August, 1975.

3. With the coming into force of the Amending Act No. 20 of 1976, the Prescribed Authority issued another notice u/s 10(2) to the Petitioner proposing to declare 1 .29 acres as surplus land. The Petitioner filed an objection which was dismissed. He then went up in appeal, which also failed. Aggrieved, he has now come to this Court.

4. Before the learned single Judge it was stressed that the finding recorded by the Additional District Judge that the gift deeds were executed in good faith and for adequate consideration and hence were exempt under proviso (b) to Section 5(6) of the Ceiling Act operates as res-judicata.

5. On the other hand, in Fateh Mohammad vs. District Judge and Others, (1979) AWC 41, it has been held that gift is not transfer for adequate consideration.

6. The learned single Judge felt that if the appellate judgment in the earlier ceiling proceedings is taken to be binding, it will be against the principle laid down by the Division Bench decision in Fateh Mohammad's case. If the Division Bench case is followed, the earlier decision of the ceiling authorities, which has become final, will lose its binding character. In view of this situation he felt it desirable that the matter be decided by a larger Bench. He referred the writ petition for decision by a larger Bench. That is how the case has come before this Bench.

7. In Writ Petition No. 3073 of 1977 Krishna Kumar vs. State of U.P. and Others, it has been held that Section 38B, which was introduced in the Ceiling Act by Amending Act No. 20 of 1976, which came into force on 10th October, 1975 applies only where retrial is necessitated by reason of the amendments introduced by the aforesaid Amending Act becoming applicable. If in a case any provision introduced by the aforesaid Amending Act is applicable, a previous decision or finding will not bar retrial of such an issue or proceeding. In the present case the concurrent finding is that even after the execution of the gift deeds the donor continued to remain in cultivatory possession of the plots. Possession was not transferred to the donees. It has also been found that by connivance the names of the donees were got recorded in the consolidation papers only to save the tenure holder from the operation of the Ceiling Act. In view of this finding Explanation II added to Section 5(1) of the Ceiling Act by the Amending Act of 1976 is attracted Explanation II provides - "Explanation II - If on or before January 24, 1971 any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual registers after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the Prescribed Authority, that t