Satish Chandra, J. - (1.) This appeal arises out of proceedings under the U.P. Imposition of Ceiling on Land-holdings Act.
(2.) The Appellant was a tenure-holder having 168-70 acres of land in several villages of district Hamirpur. He contended that his family consisted of at least eight members. This plea was repelled by the Prescribed Authority, who held that the Appellant's family consisted of six members. That finding was affirmed on appeal. A learned Single judge dismissed the Appellant's writ petition on the ground that the finding was one of fact.
(3.) Section 3(c) of the Act defines a family to mean "as consisting of the holder of a holding and any or all of his following relations not being tenure-holders in their own separate right." One such relation is the son and the son's son as long they are unseparated from the holder, thus, the son or son's son can be a member of the tenure-holder's family in the eye of law provided he is unseparated on the holder and further if he is not tenure-holder in his own separate right. The Explanation appended to Clause (c) says that for purposes of this cause a son or son's son shall be deemed be separate where land is recorded separately in his name. Thus, the Explanation raises a presumption in favour separateness if some land is recorded separately in the name of the son or the son's son. But, the Explanation, in our opinion, only entitles the raising of a resumption of fact. Such a presumption is, in law, always rebuttable. The ensure-holder can prove that the separate record of some land in the name of his on or son's son was illegal, fictitious or otherwise wrong. If this is established, the resumption is rebutted. In that event cannot be said that merely because the on is separately recorded over some and he would still be taken as a separated member of the family or that he lust be held to be a tenure-holder in his own separate right.;