Holding

Land owned by a wife is included in the husband's ceiling area unless she is a judicially separated wife as defined by a decree under the Hindu Marriage Act, and a fresh notice under Section 10(2) is valid and not barred by res judicata.

Summary

The appellants, Darshan Prashad and his wife Smt. Saraswati Devi, challenged a notice issued under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (as amended by Act No.20 of 1976) that sought particulars of land held by them and their family. They argued that the wife, who was living separately but had not obtained a decree of judicial separation, should not have her land counted in the husband's ceiling area, and that the fresh notice was barred by res judicata because the ceiling area had already been determined before the amendment. The Supreme Court held that, under Section 3(7) of the Ceiling Act, a wife is deemed part of the husband's family for ceiling calculations unless she is a "judicially separated" wife, which requires a decree under the Hindu Marriage Act, 1955. The Court also held that Sections 38‑A and 38‑B inserted by the 1976 amendment empower the prescribed authority to issue a fresh notice within two years and bar any earlier decision from operating as res judicata. Consequently, the appeals were dismissed.

Issues considered

Whether land owned by a wife living separately but not judicially separated is to be included in the husband's ceiling area under the U.P. Ceiling Act, 1960.
Whether a fresh notice under Section 10(2) issued after earlier ceiling proceedings is valid notwithstanding the earlier determination and the doctrine of res judicata.
What is the proper meaning of "judicially separated wife" under the Act.

Legislation cited

Hindu Marriage Act, 1955s. 10
Hindu Married Woman's Right to Separate Residence and Maintenance Act, 1946
U.P. Act No. 20 of 1976s. 30(3)
U.P. Imposition of Ceiling on Land Holdings Act, 1960s. 10(2), s. 3(7), s. 38-A, s. 38-B, s. 5(3)

Subjects

land ceilingfamily definitionjudicial separationres judicatafresh noticeU.P. Ceiling Actseparate tenure

Judgment

DARSHAN PRASHAD AND ANR. A
Dy
v.
CIVIL JUDGE II, GORAKHPUR AND ORS.

MARCH 13, 1992

(N.M. KASLIWAL AND K RAMASWAMY, JJ.] B

U.P. Imposition of Ceiling on Land Holdings Act, 1960/U.P. Act No.
20of 1976:
~

... Ss. 3(7), 5(3), 10(2), 38-A, 38-B-Agricultural lands-Ceiling-Deter- c
mination of~and held by wife as separate tenure-holder, living separately
without obtaining a decree for judicial separation-Whether can be included
-..j.. in the land of husband while detennining ceiling area: Family-Whether

... includes wife living separately without obtaining judicial separation.

Issuance of fresh notice under s.10(2) after enforcement of U.P. Act D
No. 20 of 1976-Validity of-Whether decision in earlier proceedings operates
as res judicata.

Words and Phrases:

'Family', 'iudicial separation', 'iudicially separated wife'-Meaning of.
E

A notice under s.10(2) of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960, as amended by the U.P. Act No.20 of 1976, was issued
to the appellant; and his objections thereto were dismissed by the
Prescribed Authority. Thereupon two appeals were tiled ,before the appel- F
late autbority-one by the appellant and another by his wife claiming
i.- .herself to be the judicially separated wife. It was stated that she was living
separately and the appellant gave her certain lands for maintenance in
~ respect of which she obtained a decree of injunction restraining the appel-
lant-husband from interfering with her possession; and her ownership with
respeet thereto was recognised in consolidation proceedings as well as in
G
the earlier ceiling proceedings.

Both the appeals were dismissed by the appellate authority and the
\
;-- wril petitions thereupon filed by the appeUants were also dismissed by the
High Court. H
265
266 SUPREME COURT REPORTS [1992) 2 S.C.R.

A In appeal to this Court it was contended by the appell~nts that (1)
the lands of the wife, who was living separately, could not be clubbed with
the lands of the husband even though a judicial separation may not have
taken place; and (2) the notice issued under s.10(2) was illegal and without
jurisdiction inasmuch as ceiling area in respect of the appellants had been
determined before coming into force of Amendment Act No.20 of 1976 and
B the order passed in the earlier ceiling proceedings would operate as res
judicata.

Dimissing the appeals, this Court,

C HELD : 1. In view of the provision of s.5(3) of the U.P. Imposition
of Ceiling on Land Holdings Act, 1960, while determining ceiling area of
. the land belonging to a person, the land even if owned or possessed by his
wife in her own right as a separate tenure-holder is not allowed to be
excluded and would have to be included in the land of the husband treating
the wife as a member of his family. The only exception has been made in
D the case of a jud.cially separated wife. The term 'judicially separated' wife
occurring in s.3(7) of the Ceiling Act, 1960 cannot be given a meaning to
-
include a wife merely living separately from her husband but having not
obtained a decree for judicial separation, which was necessary under the
provisions of the Hindu Marriage Act, 1955. After obtaining such a decree
E alone it could be recognised as judicial !!eparation. [pp.270E-G; 271B]
2.1 The provisions of s.38-A of the U.P. Imposition of Ceiling on
Land Holdings Act, 1960 and s.30(3) of U.P. Act No.20 of 1976 authorise
the Prescribed Authority to issue fresh notice under s.10(2), within a
period of two years from the date of any order passed in earlier ceiling
F proceedings requiring the tenure holder to furnish such particulars by an
affidavit in respect of the land held by him and members of his family as
may be prescribed and considered ne~essary for enforcement of the
provisions of the Ceiling Act. Section 38-B of Ceiling Act, 1960 clearly
provides that any finding or decision given before the commencement of
G these provisions will not operate as a bar for the retrial of such proceeding
or issue in accordance with the provisionii of the Act as amended from
time to time. [pp.268F-G; 269B)

2.2 The High Court was right in holding that if an earlier judgment
is said to operate as res-judicata in the subsequent proceedings, then all
H the necessary facts including pleadings of the earlier litigation, must be
DARSHAN v. CIVIL JUDGE (KASLIWAL, J.] UJ7

~ placed in the subsequent proceedings; and that the earlier notice under A
Section 10(2) issued to the tenure-holder along with the statement
prepared in Form No.3 were neither placed before the Ceiling authorities
in subsequent proceedings nor such material was produced even before the
High Court in order to enable it to decide whether the second notice could
be said to be illegal. [pp.268G-H; p.269A]
B
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2838-39
of 1980.

From the Judgment dated 11.5.1979 of the Allahabad High Court in
~-
~ Writ Petition Nos. 2764 & 2856 of 1977.
c
B.R.L. Iyengar, B. Barua and R.D. Upadhyay for the Appellants.
-i Anil Kumar Gupta and A.K. Srivastava for the respondents .
... The Judgment of the Court was delivered by
D
KASLIWAL, J. These two appeal by grant of Special Leave are
directed against the judgment of the Allahabad High Court dated
11.5.1979. A notice under Section 10(2) of the U.P. Imposition of Ceiling
on Land Holdings Act, 1960 (hereinafter referred to as the 'Ceiling Act,
1960') as amended by Act No. 20 of 1976 was issued 'to the appellant
E
Darshan Prashad. The appellan~ filed objections, but the same were dis-
missed by the prescribed authority by order dated 28.5.1976. Thereafter
two appeals were filed one by Darshan Prashad and the other by Smt.
Saraswati Devi claiming to be the judicially separated wife of Darshan
~
Prashad. Both appeals were dismissed by the Civil Judge No.II, Gorakhpur.
' Darshan Prashad then filed Writ Petition No.2764 of 1977 and Smt. Saras- F
wati Devi Writ Petition No. 2856 of 1977 challenging the order of the Civil
~
Judge. The High Court dismissed both the Writ Petitions by order dated
A' 11.5.1979. Being aggrieved by the findings of the prescribed authority and
the High Court, the appellants have now filed the present appeals .
... '

The first contention raised by Learned Counsel for the appellants G
was that notice issued under Section 10(2) was illegal and without jurisdic-
tion. It was contended that in the earlier ceiling proceedings 0.87 acres of
land was declared surplus under the provisions of the Ceiling Act, 1960
before coming into force of the Amendment Act No.20 of 1976 and the
order passed in the earlier ceiling proceedings would operate as res H
268 SUPREME COURT REPORTS' [1992] 2 S.C.R.

A judicata. It was submitted that there was no change in the law to justify ~·
issuing of fresh notice. '

We do not find any force in this contention. The Amendment Act
No. 1.0 of 1976 inserted two Sections 38-A and 38-B in the Principal Act
of 1960. Sections 38-A and 38-B are reproduced as under:-
B
"38-A. Power to call for particulars of land from tenure-holders.
(1) Where the prescribed authority or the appellate court
considers it necessary for the enforcement of the provisions of
this Act, it may, at any stage of the proceedings under this ~ct,
require any tenure-holder to furnish such particulars by af-
c fidavit in respect of the land held by him and members of his
family as may be prescribed.

(2) The particulars of land filed under sub-section (1) may be
taken into consideration in determining the surplus land of such
D .tenure-holder.

38-B. Bar against res judicata. - No finding or decision given
before the commencement of this section in any proceeding or
on any issue (including any order, decree or judgment) by any
court, tribunal or authority in respect of any matter governed
E by this Act, shall bar the retrial such proceeding or issue under
this Act, in accordance with the provisions of this Act as
amended from time to time."

The above provisions clearly show that the prescribed authority was
F given power to required any tenure-holder to furnish such particulars, by
affidavit in respect of the land held by him and members of his family as
may be prescribed which may be considered necessary for the enforcement
of the provisions of the Ceiling Act. It is clearly provided under Section
38-B inserted by the Amending Act as mentioned above that any finding
or decision given before the commencement of this Section will not operate ...
G as a bar for the retrial of such proceeding or issue in accordance with the
provisions of the Act as amended from time to time. The appellants had
raised a similar objection before the High Court, but the same was rejected
on the ground that if an earlier judgment is said to operate as res judicata
in the subsequent proceedings, then all the necessary facts indudings
H pleadings of the earlier litigation must be placed in the subsequent
.. .,. .
DARSHAN v. CIVIL JUDGE [KASLIWAL, J.] 269

proceedings. The High Court further observed that in the instant case, the A
earlier notice under Section 10(2) which was issued to the tenure-holder
along with the statement prepared in Form No.3 were not placed before
the Ceiling authorities in subsequent proceedings. It was further held that
even in the Writ Petition no such material was placed in order to enable
the Court to de.cide whether the second notice could he said to be illegal. B
Section 30(3) of the U.P. Act No. 20 of 1976 clearly provided that the
prescribed authority was authorised to issue fresh notice within a period
of two years from the date of any order pased in earlier ceiling proceedings.
We are in agreement with the view taken by the High Court. Learned
Counsel for the appellants was unable to show that in the facts and
circumstances of the case, the notice issued under Section 10(2) of the C
present proceedings was in any manner illegal or without jurisdiction.

It was next conteru.Ied ou behalf of the Learned Counsel for the
appellants that Smt. Saraswa~i Devi had left the company of the appellant
Darshan Prashad and had started living with her parents even before .the D
year 1955. The appellant (Darshan Prashad) had given her agricultural
lands for her maintenance and thereafter married with another woman. It
was submitted that Smt. Saraswati Devi had filed a suit on 22nd February,
1956 for permanent injunction to restrain the appellant Darshan Prashad
from interfering with her possession over the lands given to her in lieu of
maintenance. In that suit arbitrators were appointed by the Court and an E
award was given in favour of Smt. Saraswati D~vi on 5.12.1956. _The said
award was made a rule of the Court and a decree was passed on 21.1.1957
in favour of Smt. Saraswati Devi restraining the appellant by a decree of
permanent injunction from interfering with the possession of Smt. Saras-
wati Devi over the lands situated in village Karmahava Khurd, Tappa F
Lehara, Pargana Haveli, Gorakhpur. It was submitted that even in the
proceedings taken under the provisions of Ceiling Act, 1960, Smt. Saraswati
Devi was recognised as owner of land by virtue of the decree dated
21.1.1957, and also in consolidation proceedings which took place after the
coming into force of the Ceiling Act, 1960. Learned Counsel for the
appellants also contended that Smt. Saraswati Devi was also entitled to G
separate residence and maintenance from her husband under the
provisions of the Hindu Married Woman's Right to Separate Residence
and Maintenance Act, 1946. It was thus contended that even though a
judicial separation of Smt. Saraswati Devi may not have taken place, Smt.
Saraswati Devi for all intents and purposes was a judicially separated wife H
270 SUPREME COURT REPORTS [1992] 2 S.C.R.

A and·the agricultural lands in her ownership and possession long before the
coming into force of the Ceiling Act, 1960, ca~ot be clubbed in the land
of the appellant husband for determining the ceiling area.

We do not find any force in the above contention in view of the clear
provisions of the Ceiling Act, 1960. Section 3 (7) defines 'family' as under:-
B
'"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)"
c It is clear from the above definition· that the wife is included in the.
family of her husband other than a judicially separated wife.

It is important to note that the Hindu Marriage Act, 1955 had come
into force on 18th May, 1955. Section 10 of this Act provided for the
D judicial separation. Under Section 10 of the Hindu Marriage Act either
party to a marriage was entitled to present a petition to the District Court
praying for a decree for judicial separation on any of the grounds specified
in sub-section (1) of Section 13 and in the case of wife also on any of the
grounds specified in sub-section (2) thereof, as grounds of which a petiti0n
for divorce might have been presented. Thus, in order to get a judicial
E separation, it was necesary to obtain a decree under the above provision
and then alone it could be recognised as a judicial separation. The Ceiling
Act, 1960 was enacted and brought into operation long after the Hindu
Marriage Act, and as such the legislature was fully aware of the meaning
of judicial separated wife or husband while using this term in the definition
F of 'family' under Section 3 (7) of the Ceiling Act, 1960. ·It is further
important t.J note that sub-section (3) of Section 5 of the Ceiling Act, 1960,
prescribes, while determining the ceiling area, the land of 'adult son/sons' •
'
who were themselves tenure-holders being excluded, but no such land is
allowed to be excluded in the case of the wife, even though _she might be
a separate tenure-holder. Thus, it is abundantly clear from a perusal of the
G above proyisions that in the case of determining ceiling area of the land
belonging to a person, the land even if owned or possessed by his wife in
her own right would have to be included in the land of the husband treating
the wife as a member of his family. The only exception has been made in
the case of a judicially separated wife. It was contended by the Learned
H Counsel for the appellants that a wider meaning should be given to the
DARSHAN v. CIVIL JUDGE [KASLIWAL, J.] 271

term 'judicially separated' wife to include a wife who may be living A
separately from her husband and agriculturcil land owned or possessed in
lieu of her right of maintenance sh6uld be excluded from the ceiling limit
of her husband. It is difficult for us to accept this contention in view of the
clear provisions of the Ceiling Act, 1960 which apart from being a benefi-
) cial act for the landless has used the term 'judicially separated' wife after B
the coming into force of the Hindu Marriage Act, 1955. This cannot be
given a meaning to include a wife merely living separately from the hus-
band, but having not obtained a decree for judicial separation under the
provisions of the Hindu Marriage Act, 1955.

In view .of these circumstances, we find no force in these appeals and C
the same are dismissed with no order as to costs.

R.P. Appeals dismissed.