Judgment

CHANDRACHUD, CJI :- A question frequently arises under the Agricultural Ceiling Acts passed by the State Legislatures as to whether the land owned and held by a wife as her separate property can be clubbed together with the lands held by her husband and the other members of the family for the purpose of computing the ceiling on the holding of the family unit." That question arises in this appeal under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 196 1, (The Act).

2. The respondent Vyasendra filed a return under Section 12 of the Act showing the lands held by him and mentioning that certain lands which stood in the name of his wife were her separate property. The surplus Lands Determination Tribunal held under Section 21 of the Act that the total holding of the respondent, including the land which was alleged to be the separate property of his wife, was 67 acres and 34 gunthas. Since the ceiling under the Act is 54 acres, the respondent was asked to surrender an area admeasuring 13 acres and 34 gunthas.

3. The Additional Commissioner, Aurangabad, called for the record and proceedings of the Tribunal suo motu. The respondent contended in those proceedings that an area of 17 acres and 27 gunthas which was sold by his wife after the notified date, was wrongly included in the holding of the family unit on the basis that the sale was mala fide and was not supported by legal necessity. By an order dated January 16, 1979 the Additional Commissioner remanded the matter to the Tribunal for a fresh inquiry into the question as to whether the sale of land effected by the respondents wife after the notified date was supported by legal necessity. The contention was that the respondents wife had sold the land in order to meet the medical expenses in connection with her illness.

4. The respondent filed a writ petition (No. 1117 of 1979) in the High Court of Bombay against the judgment of the Additional Commissioner. The contention of the respondent before the High Court was that the Additional Commissioner should have remanded the proceedings to the Tribunal not only for the purpose of determining whether the respondents wife had sold the land for the purpose of legal necessity but also for the purpose of determining whether the land which stood in the name of the respondents wife constituted her separate or stridhan property. This contention was accepted by the High Court which, by its judgment dated April 25, 1979 enlarged the scope of the remand by directing the Tribunal to inquire also into the question as to whether the land which stood in the name of the respondents wife was her separate property. The correctness of the judgment of the High Court is challenged by the State of Maharashtra in this appeal.

5. By an order dated March 8, 1983 this Court had issued a show cause notice to the respondent stating therein that the matter will be finally heard and disposed of at the next hearing. The show cause notice has been served on the respondent but he has not put in his appearance.

6. Shri V. S. Desai, who appears on behalf of the appellant, contends that the High Court was in error in enlarging the scope of the order of remand passed by the Additional Commissioner by directing the Tribunal to hold an inquiry into the question whether the land which stood in the name of the respondents wife and which was sold by her allegedly for medical expenses, was her separate property. This contention is well founded and must be accepted. Section 3(1) of the Act provides, to the extent material, that no family unit shall, after the commencement date, hold land in excess of the ceiling area as determined in the manner provided by the Act. By sub-section (2) of Section 3, the land held by a family unit in excess of the ceiling area is regarded as surplus land, liable to be dealt with in the manner prescribed by the Act. Section 4(1) of the Act, which is of crucial importance in this case, reads thus :

"4. Land held by family unit