VIROJ KUNWAR Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) 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 surrendered 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 biswanis 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.

(2.) It is her claim that she was judicially separated from her husband on 12th May, 1973 and the children were staying with them and that, therefore, the land in their possession should be computed as a separate holding. If 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 appeal by special leave.

(3.) 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 Misra v. Distt. Judge Hamirpur, 1979 All LJ 213. The contention has been resisted by the learned counsel appearing for the respondents.