IMPORTANT POINT
No doubt by making a will the testator cannot reduce his ceiling area. But where ceiling area under consideration is not of testator but that of his successor/heirs, the said proposition adopted by High Court will not be apt.

Headnote:U.P. Imposition of Ceiling on Land Holdings Act, 1960-Sections 5 and 10(2)-U.P. Zamindari Abolition and Land Reforms Act, 1950-Sections 169 and 171-One Wali Mohd. Executed a Will after his ceiling area u/s. 5 of the Ceiling on Land Holdings Act was determined in farmer of appellants-Appellants got it mutated in their name after death of testator-Before Tehsildar genuineness of Will was proved-After the death of testator, land bequeathed to appellants was added in property inherited by his son Gulam Mohd.-To determine the extent of land which he could retain u/s.10(2) of the Ceiling Act-Challenged by appellants in High Court-High Court dismissed writ petition on a wrong proposition-Whether correct? (No)-Proper course-Remand of case-Appeals allowed accordingly-(Mohammedan Law of Succession and Bhoomiswami Land Succession).
       Held : The question that falls for our consideration is : whether the Will of Wali Mohammed is genuine and the land bequeathed by late Wall Mohammed in favour of the appellants under it could be treated as inherited land of Gulam Mohammed. (Para 10)
       The Appellate Authority ignored the order of the Tehsildar dated August 28, 1975, referred to above, which shows that after issuing public notice and examining the witnesses the Tehsildar found that the Will executed by Wali Mohammed was proved and on that finding the names of the appellants were directed to be mutated in the revenue records. In view of the fact that the Will of late Wali Mohammed has been found to be genuine; the only question which remains to be considered is : whether the land bequeathed in favour of the appellants by late Wali Mohammed could form part of inherited property of Gulam Mohammed. (Para 12)
       The property bequeathed by a deceased person cannot be added to the share of his heirs for computing their khatas albeit it can be added to the khata of the legatee. From the record it is not clear as to how much extent late Wali Mohammed was entitled to hold and how much extent Gulam Mohammed got by way of inheritance which alone could he added to the land already held by him. The High Court took the view that by making a Will the declarant cannot reduce his ceiling area. We think no exception can be taken to the said statement of law provided the determination of the ceiling area under consideration is that of the testator. But if the determination relates to his successors/heirs either by intestate succession or testamentary succession the said proposition will not be apt. In the instant case the Will was executed by late Wall Mohammed, In computing the ceiling area of his heirs Gulam Mohammed and Moti Begum the land given by Will to the appellants (legatees) will have to be excluded before the actual area of the land inherited by the said heirs is worked out. We, therefore, set aside the order of the High Court and that of the Appellate Court, remit the case to the Prescribed Authority for fresh enquiry for determination of the area which the appellants are entitled to have under the Will of late Wali Mohammed having regard to the land, if any, held by them in their own khakis. The appeal is accordingly allowed. There shall be no order as to costs. (Paras 13, 14, 15 and 16)

ORDER

This appeal is from the order of the High Court of Judicature at Allahabad dated November 24. 1978 disposing of the Writ Petition No. 1054/78 filed by the appellants in terms of the order in W.P.No. 1270/78 passed oil tile same date. By virtue of the said order, the Writ Petition filed by the appellants stood dismissed.

2. To comprehend the controversy, it will be necessary to refer briefly to the facts giving rise to this appeal. One Wali Mohammed held certain agricultural lands. He had transferred an extent of 25 = 79 acres of land in favour of his blind unmarried daughter (Moti Begum) in 1359 Fasli - long before coming into force of the Act. In accordance with the provisions of the U.P. Imposition of Ceiling on Land Holdings Act. I960 (for short- the Act ), his ceiling area, under Section 5 of the Act. was determined. On December 15. 1974 he executed a Will bequeathing an extent of 25.32 acres out of his land in favour of the appellants herein, lie died on June 16, 1975 leaving behind him a son, Gulam Mohammed and a daughter, the said Moti Begum.

3. On the basis of the said Will the appellants approached the Tehsildar. Billari (U.P.) to have their names mutated in the revenue records. The Tehsildar, after issuing a public notice and after examining witnesses produced by the appellants held, by his order dated August 28, 1975, that the Will was proved and ordered that their names be mutated in the revenue records as legatees of Wali Mohammed in respect of an extent of 25.32 acres. That order makes it clear that mutation would not affect the ceiling proceedings under the Act.

4. The Prescribed Authority treated the land held by Wali Mohammed on the date of his death as inherited property of Gulam Mohammed, added the same to the plots of land which were standing in his name and issued notices under Section 10(2) of the Act to Gulam Mohammed and Moti Begum for determining the extent of land which he could retain under the Act. But no such notice was admittedly given to the appellants. The Prescribed Authority confined its consideration to the question as to how much land Gulam Mohammed was entitled to hold under the Act after he inherited lands of his father and whether Moti Begum could retain in her own right the land conveyed to her by late Wali Mohammed in 1359 fasli. The Prescribed Authority negatived the claim of Moti Begum and added all the lands which stood in the name of Wall Mohammed to the holding of Gulam Mohammed by order dated January 6, 1975.

5. Immediately thereafter the appellants filed an application before the Prescribed Authority to implead them in the proceedings under Section 10(2) of the Act on the ground that the lands given to them under the Will of Wali Mohammed were already mutated in their favour. That application was dismissed on August 31, 1976 as the said proceedings stood disposed of on June 30, 1976.

6. Against the said two orders of the Prescribed Authority three appeals were filed before the learned 5th Additional District Judge, Moradabad - the Appellate Authority under the Act. By a common order dated December 2- 1977, the appeals were disposed of. Insofar as the appeal of Moti Begum is concerned, the learned Additional District Judge upheld her claim and ordered that the land conveyed to her by late Wali Mohammed could not be included in the khata of Gulam Mohammed and thus allowed her appeal That order has become final. So far as the appeal of Gulam Mohammed is concerned, it was partly allowed giving consequential benefit. Misc.Appeal No.317/76 filed by the appellants was dismissed.

7. Aggrieved by the said common order of the Appellate Authority two Writ Petitions were filed - Writ Petition No. 1270/7 8, by Gulam Mohammed and Writ Petition No. 1054/78 by the appellants. It has been noticed above that the writ petition of the appellants was dismissed by the High Court on November 24, 1978 and against that order of the High Court the appellants are in appeal before us.

8. Mr. E.R.Kuma

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2001 Supreme(SC) 1392

IMPORTANT POINTNo doubt by making a will the testator cannot reduce his ceiling area. But where ceiling area under consideration is not of testator but that of his successor/heirs, the said proposition adopted by High Court will not be apt.

IMPORTANT POINT
No doubt by making a will the testator cannot reduce his ceiling area. But where ceiling area under consideration is not of testator but that of his successor/heirs, the said proposition adopted by High Court will not be apt.