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2005 Supreme(All) 677
IN THE HIGH COURT OF ALLAHABAD
Jagdish Bhalla, Pradeep Kant, Bhanwar Singh
STATE OF U. P - Appellant
Versus
GYAN KUNWAR - Respondents
Writ Petition 39 Of 1977
Decided On : 04/13/2005
N.C.Malhotra, Nirmal Tiwari
The main legal point established in the judgment is that the term 'judicially separated wife' under Section 3 (7) of the Ceiling Act does not encompass separation by mere custom and does not include a wife living separately from her husband without a decree for judicial separation under the Hindu Marriage Act.
Headnote:
Judicial Separation - Ceiling on Land Holdings - U. P. Imposition of Ceiling on Land Holdings Act - Section 3 (7), Section 5 - The court discussed the meaning of 'judicial separation' in reference to the Hindu Marriage Act and the U. P. Imposition of Ceiling on Land Holdings Act. It considered conflicting decisions and interpretations from various cases, including Sarju Prasad v. Additional District Judge, Ramphal v. Additional District Judge, Gangotri Devi v. State of U. P., Jeet Singh v. State of U. P., and Darshan Prasad v. Civil Judge II, Gorakhpur. The court emphasized that a 'judicially separated wife' under Section 3 (7) of the Ceiling Act does not include separation by mere custom and rejected the wider interpretation of the term to include a wife living separately from her husband without a decree for judicial separation under the Hindu Marriage Act.
Fact of the Case:
The case involved a dispute regarding the treatment of the land holdings of two wives of a deceased individual for the purpose of declaring surplus land under the U. P. Imposition of Ceiling on Land Holdings Act. The Prescribed Authority and the Appellate Court had ruled in favor of the wives, but the State Government argued that the holdings of all three respondents should be treated as one for the purposes of the ceiling Act and surplus land.
Finding of the Court:
The court found that the judgment and order of the Prescribed Authority and the Appellate Court suffered from serious infirmities and set them aside. It emphasized that even if there was some sort of separation between the husband and wife, such separation could not constitute a 'judicial separation' between them, and the holdings existing in the names of the husband and wife are liable to be clubbed together for computation of ceiling area.
Issues: The main issue revolved around the interpretation of 'judicial separation' in the context of the Hindu Marriage Act and the U. P. Imposition of Ceiling on Land Holdings Act, and whether the land holdings of the wives should be treated separately for the purpose of declaring surplus land.
Ratio Decidendi: The court held that a 'judicially separated wife' under Section 3 (7) of the Ceiling Act does not include separation by mere custom and rejected the wider interpretation of the term to include a wife living separately from her husband without a decree for judicial separation under the Hindu Marriage Act.
Final Decision: The writ petition was allowed, and the judgment and order of the Prescribed Authority and the Appellate Court were set aside. Each party was ordered to bear their own costs.
( 1 ) THIS case comes before us upon a reference by learned Single judge who felt that there is apparent conflict between a Bench decision and a Single Judge decision on the point set out below and being of considerable importance which require consideration by a larger Bench.
( 2 ) THE facts, inter alia, before the learned Single Judge, in short were that respondents, Smt. Gaya Kunwari and Smt. Bimla Devi were the wives of late Banarasi Prasad. It is said that as per partition decree of the Civil Judge, Unnao, issued way back on 19. 1. 1948 the shares of respondents no. 2 and 3 were separated and both of them have been living separately and managing their holdings independently. On the other hand, the State Government-had taken stand in the court below that the holdings of all the three respondents should be treated as one for the purposes of the ceiling Act and surplus land. Before proceeding further, it would be relevant to point out that respondent no. 1 Banarasi Prasad son of Ram Lal died on 18. 2. 1977 and, therefore, an application for substitution, which was registered as Civil Misc. Appln. No. 448 (w)of 1978, was allowed by an order dated 19. 9. 1986 and Banshidhar, sridhar and Sri Nivas, all son of Banarasi Prasad [deceased] were substituted as opposite parties nos. 1/3,1/4 and 1/5. Banshidhar-opposite party no. 1/3 also died on 20. 1. 2003.
( 3 ) THE Prescribed Authority by the judgment and order dated 20. 7. 1975 came to the conclusion on the basis of documentary evidence that respondents no. 2 and 3 were living separately and their holdings cannot be included in the holdings of late Banarasi prasad for the purposes of declaration of surplus land. Aggrieved by the said judgment, the petitioners filed a Civil Appeal No. 296 of 1975 in the court of Ist Addl. District and Sessions Judge, Unnao. The Appellate Court by the judgment and order dated 31. 8. 1976 approved the judgment of the Prescribed Authority and dismissed the appeal preferred by the petitioners. Hence the present writ petition.
( 4 ) IT has been argued on behalf of the State that both the wives come within the definition of Section 3 (7) of the Ceiling Act and unless there is judicial separation from the competent court they cannot be treated as separated. When the matter came up before learned Single Judge, he raised a question that there is apparent conflict between the Bench decision and Single Judge decision, and, therefore, referred the matter to Honble the Chief Justice for constituting a larger Bench for consideration of the case.
( 5 ) THE next question, which remains for consideration, is the meaning of word "judicial separation" in reference to Hindu marriage Act and U. P. Imposition of Ceiling on Land Holdings act.
( 6 ) SRI N. C. Mehrotra, Addl. Chief Standing Counsel submitted that in Sarju Prasad versus Additional District Judge, reported in 1980 alj 512, this Court after considering the case of Ramphal Versus additional District Judge reported in 1979 AWJ 196 as also the judgment rendered in writ petition no. 493 of 1975; Ram Prasad versus State held that judicially separated wife for the purpose of section 3 (7) of the Act does not embrace within its ambit the right of separation between the husband and wife by mere custom. But on the other hand, in Gangotri Devi versus state of U. P. 1981 AWC 545 of which mention has been made in the present reference, it was held that the expression "judicially separated" is not to be understood in the technical sense in grant of decree under Section 10 of the Hindu Marriage Act and the wife was deserted and living separately and the land recorded in her favour should not be clubbed with the holding of her husband.
( 7 ) ELABORATING further, learned State Counsel submitted that the law laid down in aforesaid cases were considered by the Honble supreme Court in the case of Jeet Singh Versus State of U. P. and others. The Honble Supreme Court while approving the decision rendered in Sa
