Smt. Viroj
Kunwar & Ors Vs. II Additionl District Judge & Ors [1995] INSC 786 (5 December 1995)
Ramaswamy,
K.Ramaswamy, K.Faizan Uddin (J) Kirpal B.N. (J)
CITATION:
1996 SCC (1) 570 JT 1995 (9) 297 1995 SCALE (7)317
ACT:
HEAD NOTE:
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.
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 :
"[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.
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