SMT. VIRAJ KUNWAR AND ORS.versusII ADDL. DISTT. JUDGE AND ORS.

                  SMT. VIRAJ KUNWAR AND ORS.                                    A
                                 v.
                 II ADDL. DISTT. JUDGE AND ORS.

                           DECEMBER 5, 1995

   [K. RAMASWAMY, FAIZAN UDDIN AND B.N. KIRPAL, JJ.]                            B

      U.P. Imposition of Ceiling on Land Holdings Act, 1960 as amended
by U.P. Act 18 of 1973-Sections 3(7) & 3( 17)-Tenure Holde.-Restlicted
definition-Whether judicially separated wife can be an independent tenure
holdei-Held, No, when her husband is a tenure holder.                           c
      Respondent No. 3, husband of the first appellant, as a tenure holder
submitted his return u/s 10 of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960, as amended by U.P. Act 18, 1973. He was declared
holder of the surplus agricultural land. Therefore, he surrendered the land
to an extent of 30 bighas as irrigated land. The first appellant claimed that   D
she judicially separated from her husband in 1973 and the children were
staying With her and the third respondent bad given 16 bighas of unir-
rigated land to her; therefore, the land in their possession should be
computed as a separate holding. In the writ petition, the High Court held
that the first appellant was not entitled to the separate computation of the    E
holdings as a tenure bolder. Hence this appeal by special leave.

      The question raised for determination was whether the first appel-
lant was a tenure bolder under the Act.

       The appellant contended that judicially separated wife is also inde-     F
pendent tenure bolder under the Act and the children living with her are
entitled to have their lands tagged with her holding.

      Dismissing the appeal, this Court

       HELD : 1.1. Tenure holder has been defined in Section 3 (17) of the      G
U.P. Imposition of Ceiling on Land Holdings Act, 1960, to mean "a person
who is the holder of a holding but except in Chapter III, does pot 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       H
                                    227
    228                  SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A wife or the husband, as the case my be, is a tenure-holder under the same
    scheme of the Act. [230-D]

         1.2. 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
B therein. While aggregating the ceiling area a judicially separated wife has
  been excluded to be a member of the family. 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 hus-
  band is a tenure holder, though she was judicially separated from her
C husband. In this definition, the judicially separated wife has not been
  excluded for obvious reason that though by judicial separation the wife
  and the husband may not be living together, in law, still she remains to be
  his wife so long as there is no. divorce putting an end to the marital tie.
  Under those circumstances, judicially separated wife cannot be an inde-
  pendent tenure-holder when her husband is a tenure-holder within the
D meaning of Section 3(17) of the Act. (231-D-F)
          Shiv Ram Misra v. Distt. Judge, Hamirpur, (1979) ALL. LJ. 213,
    overruled.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2737 of
E 1981.
         From the Judgment and Order dated 11.10.79 of the Allahabad Higb
    Court in W.P. No. 562 of 1977.

          S.S. Javeli and P.R. Ramesha for the Appellants.
F
          A.B. Rohtagi and Ashok K. Srivastava for the Respondents.

          The following Order of the Court was delivered :

        The first appellant is the wife of Nirmal Kumar Jain, the third
G respondent. She has a minor son Sanjeev Kumar a11d 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 surrendered the land of an
H extent of 30 bighas 13 biswas and 3 biswansis as irrigated land (45 bighas
               VIRAJ KUNWAR v. II ADDL. DISTT. JUDGE                      229

19 biswas 15 biswansis unirrigated land). The first appellant claimed that A
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 the 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 B
and enjoyment being cultivated through their farm servant. When the
notified officer had came 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.
                                                                                 c
      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 D
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 appeal
by special leave.
                                                                                 E
       Shri J avali, 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
                                                                                 F
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          GI
Shiv Ram Misra v. Distt. Judge, Hamirpur, (1979) All. L.J. 213. The conten-
tion has been resisted by the learned counsel appearing for the respon-
dents.

      The question, therefore, is whether the first appellant is a tenure- H
    230                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A 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 Uttur Pradesh Zamindari Abolition and Land
            Reforms Act, 1950, or as a tenant unuer the U:P. Tenancy Act,
B
            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
C 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 under
D 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
  Section 3 (7) defies 'family' as under :
E
            "(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];"

F         '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
G   on land holdings is to be computed and surplus land determined. Sub-sec-
    tion (1) evidences 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
H   [3] enumerates computation of the ceiling area in the case of tenure-holder
               VIRAi KUNWAR v. IIADDL. DISTI.JUDGE                       231

having a family thus :                                                          A
         "(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 a tenure-holder having a family of not more than
        five members, 7.30 hectares of irrigated land (including land held      B
        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     C
        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 a judicially separated D
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 E
she was judicially separated from her husband. In this definition, the
judicially separated wife has not been excluded for obvious reason that
though by judicial separation the wife and the husband may not be living
together, in law, still she remains to be his wife so long as there is no
divorce putting an end to the marital tie.                                     p

      Under those circumstances, judicially separated wife cannot be an
independent tenure-holder when her husband is a tenure-holder within the
meaning of Section 3 (17) of the Act. If construction is adopted, it is
consistent with the provisions of the Act for the reason that under the
Amendment Act judicially separated wife has been brought in for com- G
putation of the aggregate of the ceiling area under Section 5 obviously for
the reason that the legislators intended that when there is judicial separa-
tion between wife and husband, she cannot be treated to be a member of
the family for the purpose of aggregating the ceiling area held by the
tenure-holder. The learned single Judge in the judgment [supra] obviously H
    232                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A has overlooked the impact of the definition under Section 3 (17) (a) and
    held that in the absence of any express exclusion of the judicially separated
    wife to be the tenure-holder she is entitled to be a separate holding as a
    tenure-holder. We are of the opinion that the view of the learned judge is
    clearly in negation of the expressed provision contained in Section 3 (17)
B   (a) of the Act. Therefore, it is not correct law.

          The decision of the High Court, therefore, does not warrant inter-
    ference. The appeal is accordingly dismissed. No order as to costs.

    R.A.                                                      Appeal dismissed.