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PETITIONER: SMT. VIROJ KUNWAR & ORS.

       Vs.

RESPONDENT: II ADDITIONL DISTRICT JUDGE & ORS.

DATE OF JUDGMENT05/12/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. FAIZAN UDDIN (J) KIRPAL B.N. (J)

CITATION:  1996 SCC  (1) 570        JT 1995 (9)   297  1995 SCALE  (7)317

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The first  appellant is  the wife of Nirmal Kumar Jain, the third  respondent. She has a minor son Sanjeev Kumar and daughter  Snehlata.   Respondent  No.3  as  a  tenure-holder submitted his return under Section 10 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 as amended by U.P. Act 18, 1973  (for short,  "the Act").  He was declared surplus- holder of  the agricultural  land. He surrendred the land of an extent  of  30  bighas  13  biswas  and  3  biswansis  as irrigated land (45 bighas 19 biswas 15 biswansis unirrigated land). The  first  appellant  claimed  that  due  to  family disputes  in  the  wed-lock  she  and  her  aforesaid  minor children were  living separately.  The third  respondent had given 16  bighas, 10  biswas and 19 biswansis of unirrigated land to  the first  appellant, 12  bighas, 17  biswas and 17 biswansis to his minor daughter and 16 bighas, 10 biswas and 19 biswansis  to his minor son. This unirrigated land was in their possession  and  enjoyment  being  cultivated  through their farm  servant. When  the notified  officer had come to the land  to take  possession, she  became aware of the fact that the  third respondent  had surrendered  the land and on her enquiry  it came  to light  that under  the Act the said land came to be surrendered.      It is  her claim that she was judicially separated from her husband  on 12th May, 1973 and the children were staying with her  and that,  therefore, the land in their possession should be  computed as  a separate  holding. If so computed, only one  bigha 15 biswas and 19 biswansis would be declared to be  surplus land  under the Act. That question came to be considered  ultimately   by  the  High  Court  in  the  writ petition. The High Court in the impugned order held that the first appellant was not entitled to the separate computation of the  holding as  a tenure-holder.  Thus this  special  by special leave.

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    Shri Javali,  learned senior  counsel relying  upon the definition of ’family’ under Section 3 [5] read with that of ’tenure-holder’  under   Section  3   [17]  contended   that judicially separated  wife is  also an  independent  tenure- holder under  the Act.  The children  living with her, viz., the minor  son and  the daughter  are entitled to have their lands tagged with her holding. If so tagged, she can be said to be  holding excess land to the extent of 1 bigha and odd, as referred  to earlier.  The tribunals  below and  the High Court have  committed grave  error in holding that the lands held by the first appellant and two minor children should be tagged  to   the  lands  held  by  her  husband,  the  third respondent. In support thereof, he placed strong reliance on a judgment  of a single Judge of the Allahabad High Court in Shiv Ram  Mishra v.  Distt. Judge,  Hamirpur [1979 All. L.J. 213]. The  contention  has  been  resisted  by  the  learned counsel appearing for the respondents.      The question, therefore, is whether the first appellant is a  tenure-holder under  the Act.  Section 3  [9]  defines ’holding as under :      "[9]. ’holding’  means the  land or land      held by  a person as a Bhumidar, Sirdar,      Asami  or   Gaon  Sabha   or  an   Asami      mentioned in  Section 11  of  the  Uttar      Pradesh  Zamindari  Abolition  and  Land      Reforms Act,  1950, or as a tenant under      the U.P. Tenancy Act, 1939, other than a      sub-tenant, or  as a  Government lessee,      or  as  a  sub-lessee  of  a  Government      lessee, where the period of sub-lease is      co-extensive  with  the  period  of  the      lease;"      ’Tenure-holder’ has  been defined  in Section 3 [17] to mean "a  person who is the holder of a holding but except in Chapter III,  does not include- [a] a woman whose husband is a tenure-holder; [b] a minor child whose father or mother is a tenure-holder".  The definition  thus clearly excludes the wife and the minor children to be independent tenure-holders when the  wife or  the husband,  as the  case may  be, is  a tenure-holder scheme of the Act. By operation of restrictive definition  of  the  tenure-holder  and  exclusion  of  wife thereof from  tenure-holder only  one  tenure-holder,  i.e., husband or  wife, as  the case  may be,  alone would  be the tenure-holder and  minor children  would be  members of  the family. Section 3 [7] defines ’family’ as under :      "[7]. ’family’  in relation to a tenure-      holder, means himself or herself and his      wife or  her husband, as the case may be      [ other than a judicially separated wife      or  husband  ],  minor  sons  and  minor      daughters [ other than married daughters      ];"      ’Ceiling area’  has been defined under Section 3 [2] to mean "the  area of  land not  being land exempted under this Act, determined as such in accordance with the provisions of Section 5".      Section  5   is  the   pivotal  provision  under  which imposition of ceiling on land holdings is to be computed and surplus land  determined. Sub-section [1] envisages that "on and from  the commencement of the U.P. Imposition of Ceiling on Land  Holdings [Amendment]  Act, 1972,  no  tenure-holder shall be  entitled to hold in the aggregate throughout Uttar Pradesh, any  land in  excess of  ceiling area applicable to him". Sub-section  [3] enumerates computation of the ceiling area in the case of tenure-holder having a family thus :

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    "[3] Subject  to the  provisions of sub-      sections [4],  [5], [6]  and the ceiling      area for  purposes  of  sub-section  [1]      shall be  - (a)  in the  case of tenure-      holder having  a family of not more than      five members, 7.30 hectares of irrigated      land  [including   land  held  by  other      members  of   his   family]   plus   two      additional hectares of irrigated land or      such additional land which together with      the  land  held  by  him  aggregate  two      hectares, for  each of  his adult  sons,      who are  either not  themselves  tenure-      holders  or   who  hold  less  than  two      hectares of irrigated land, subject to a      maximum  of   six   hectares   of   such      additional land,".      In other  words, in computation of the ceiling area the family defined  under Section  3  [7]  becomes  relevant  in computation of  the members of the family to give additional land to  the extent  of the  members of the family envisaged therein. While  aggregating the  ceiling area  of judicially separated wife  has been  excluded to  be a  member  of  the family.  The  question,  therefore,  is  whether  judicially separated wife  is a tenure-holder under the Act. It is seen that Section  3 [17] (a) would exclude the wife when husband is a tenure-holder and that, therefore, she cannot be at the same time an independent tenure-holder when the husband is a tenure-holder, though  she was juducially separated from her husband. In  this definition,  the judicially separated wife has not  been excluded  for obvious  reason that  though  by judicial separation  the expressed  provision  contained  in Section 3  [17] (a) of the Act. Therefore, it is not correct law.      The decision  of the  High Court,  therefore, does  not warrant interference. The appeal is accordingly dismissed. No            order          as          to          costs.