IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.18377 OF 2009 SUSHIL KUMAR SINGH, SON OF RAM LAXMAN SINGH, RESIDENT OF VILLAGE SINGHARAHIA, POLICE STATION SAHIYARA, DISTRICT SITAMARHI VERSUS 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER –CUM- SECRETARY, DEPARTMENT OF LANDREVENUE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 2. THE COLLECTOR, SITAMARHI 3. THE DEPUTY COLLECTOR LAND REFORMS, SITAMARHI 4. PRADUMNA CHARYA, SON OF LATE KANTA CHARYA, RESIDENT OF VILLAGE SINGHRAHIA, POLICE STATION SAHIYARA, DISTRICT SITAMARHI 5. SMT. CHANDRA KALA SINHA, WIFE OF SHRI RAM LAXMAN SINGH, RESIDENT OF VILLAGE SINGHRAHIA, POLICE STATION SAHIYARA, DISTRICT SITAMARHI 6. RAMANAND SINGH, SON OF LATE MATUKDHARI SINGH, RESIDENT OF SINGRAHIA, POLICE STTION SAHIYARA, DISTRICT SITAMARHI ………………………………………………………………………………RESPONDENTS ********* 6 24 /11/2010 The petitioner has challenged the orders passed by the Collector, Sitamarhi and Member, Board of Revenue by which the application filed on behalf of respondent no. 5 under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act) has been allowed. The facts are that on 24.05.2003, the lands appertaining to Khata No. 177, plot no. 767, situated in village Singharhia of Bathanaha Block in the district of Sitamarhi were transferred by respondent no. 6 in favour of respondent no. 5. Respondent no. 5 who is the mother of the petitioner gifted the entire lands to her son on 09.06.2003. The pre-emption application was filed on - 2 - 02.07.2003 claiming that the respondent no. 4 is ready to purchase the lands which were the subject matter of the sale deed dated 24.05.2003. The case of respondent no. 4, the pre-emptor, is that he is the co-sharer and thus the boundary raiyat of the lands in question and as such he is entitled to file a claim under Section 16(3) of the Act that the lands in question should be conveyed to him by respondent no. 5/6. All the three Courts have decided in favour of respondent no. 4 holding that he is a co-sharer and, therefore, boundary raiyat and as such is entitled to conveyance of the disputed land. Learned Counsel for the petitioner submits that the lands were sold on 24.05.2003 were gifted by respondent no. 5 to her son, the petitioner, on 09.06.2003, out of love and affection. Once, the land has been gifted to the petitioner, they cannot be subject matter of pre-emption and as such the order impugned should be set aside. Counsel for the respondent no. 4, on the other hand, submits that the deed of gift has been executed to defeat the provisions of Section 16 (3) of the Act. It is further submitted that he is in the boundary of the land under pre-emption and as such he has rightly exercised - 3 - his rights under Section 16 (3) of the Act. The argument advanced on behalf of the pre-emptor is that all the three Courts have held in his favour, as such this Court should not interfere with the concurrent finding of facts. This Court finds that on perusal of the three orders that there is a finding that the respondent no. 4 is a boundary raiyat, for the reason that his name finds place in the boundary of the sale deed in favour of Chandrakala Singh. This Court cannot dispute this finding. Similarly, this Court cannot dispute the fact that the pre-emptor and the vendor belong to the same family, as no material has been produced on behalf of the petitioner to dispute this aspect of the matter. However, this Court will examine the case of the parties on the basis of the fact that before the pre- emption application was filed, the lands were transferred on 09.06.2003 by the mother to the son by executing a registered deed of gift. The question is whether the deed of gift was registered to defeat the provisions of Section 16 (3) of the Act. The transfer of the land by the mother to her son, cannot be termed to be unreasonable, or an act tainted with mala fide. It is quite natural that a mother should gift her property to one or more of her children, - 4 - as such the transaction must be termed to be a bonafide transaction. Having held that the deed of gift was a bonafide transaction, the outcome is that this Court must hold that the pre-emption application was not maintainable for lands which have been transferred by way of gift executed before the filing of the pre-emption application. The orders of the Land Reforms Deputy Collector dated 18.06.2004, the Additional Collector dated 27.12.2004 and the Member, Board of Revenue dated 04.11.2008 are thus quashed and this writ application is accordingly allowed. Anand ( Sheema Ali Khan, J. )