Judgment 1. This writ application raises a question as to whether a wife living separately from her husband is entitled to allotment of a separate unit. 2. In this application, the petitioner has contended that she has been living separately from her husband since 1969 and since then she has been getting maintenance from her husband. It appears that an agreement had been entered into by and between the petitioner and her husband on 30/03/1974, which is contained in Annexure X to the writ application in terms whereof, inter alia, the properties measuring 26.19 decimals of land and as described in Schedule 1 thereof had been given to her as an absolute owner. The contention of the petitioner is that in view of the aforementioned agreement the said lands have been given to her in lieu of maintenance which should not be taken into consideration while determining the ceiling area of her husband under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. 3. Learned counsel appearing on behalf of the petitioner in support of this application has strongly relied upon a Division Bench decision of this Court in Arti Devi V/s. The State of Bihar reported in 1982 BLJR 87 (sic). The submission of learned counsel appearing on behalf of the petitioner cannot be accepted for more than one reason. 4. Admittedly, the petitioner and her husband are merely living separately and their marriage is still subsisting. The petitioners husband is a land holder and the ceiling area in terms of the provisions of the said Act has to determined keeping in view the state of affairs as was existing on 9-9-1970. Thus the surplus land available at the hands of the husband of the petitioner cannot be subjected to any alteration or disadvantage to the State by reason of an agreement which might have been entered into by and between the petitioner and her husband. 5. During the lifetime of her husband, the question of partition of any land by and between herself and her husband does not arise. The said purported agreement is an unregistered one. In terms of Sec. 5(ii) of the said Act, no transfer can be made by any landholder and even if any such transfer is made, the said transferred land would be deemed to have been opted by the landholer in terms of the provision of Sub-sec. The said purported agreement is an unregistered one. In terms of Sec. 5(ii) of the said Act, no transfer can be made by any landholder and even if any such transfer is made, the said transferred land would be deemed to have been opted by the landholer in terms of the provision of Sub-sec. (2) of Sec. 9 of the said Act. 6. Further, the petitioner only has been living separately from her husband but admittedly no decree for dissolution of marriage by way divorce has been passed. In law, therefore, the petitioner is still the married wife of respondent No. 6. 7. In terms of the provision of the said Act, a ceiling area has to be determined keeping in view the lands available at the hands of the family which in view of its defintion as contained in Sec. 2(ee) thereof includes the husband, wife and their minor children. Thus, all the lands available whether jointly or individually by the members of the family"which come within the purview of the aforementioned definition have to be clubbed together for the purpose of determination of the ceiling area of the family. This aspect of the matter has been considered by a Special Bench of this Court in 1986 PLJR 67 State of Bihar V/s. K.M. Zuberi. Sec. 3 of the said Act contains a non-obstante clause providing that the provisions of the said Act would prevail over other Acts. The non-substanto of the provisions contained in Sec. 3 of the said Act is of wide amplitude. 8. In Arti Devis case the Division Bench did not take into consideration the amendments made in the definition of family"as also Sec. 4 of the Act. The counsel for the parties in that case were remiss in not bringing to the notice of the Court that the amendment made in Sec. 4 of the Act to the effect that the ceiling area has to be determined upon taking into consideration the lands owned and held by the members of the family"as defined in Sec. 2(ee) of the said Act whether jointly or individually. Arti Devis case therefore, does not create a binding precedent having been rendered per incuriam. 9. Arti Devis case therefore, does not create a binding precedent having been rendered per incuriam. 9. Learned counsel, thereafter, submitted that the lands in question being homestead lands of respondent No. 6 in respect whereof rent has been fixed under Sec. 5 of the Bihar Land Reforms Act, the said lands do not come within the purview of the said Act. This submission of learned counsel for the petitioner can also not be accepted for more than one reasons. 10. It does not appear from the order passed by the Member, Board of Revenue, as contained in Annexure 6 to the writ application that such a contention was ever raised before the said authority. The petitioner, thus cannot be permitted to raise a question which was not raised before the courts below. 11. In any event, in our opinion, in view of Sub-sec. (2) of Sec. 9 of the said Act, the petitioner will not in any way be prejudiced even if the lands described in Schedule 1 of the agreement as contained in Annexure X is included within the ceiling land of respondent No. 6. Such a contention could have been raised even by the landholder in his objection under Sub-sec. (3) of Sec. 10 of the Act. 12. Further only such lands are saved from vesting in terms of Sec. 5 of the Bihar Land Reforms Act, 1950 which come within the definition of Homestead land"as contained in Sec. 2(j) thereof. Sec. 2(j) reads as follows :- "HOMESTEAD"means a dwelling house used by the proprietor or tenure-holder for the purposes of his own residence or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out buildings and includes any out-buildings used for purposes connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house". Thus the lands which do not come within the purview of the aforementioned definition are not saved in terms of Sec. 5 of the Bihar Land Reforms Act. Homestead lands which are held by the land holder for agricultural purpose would also come within the purview of land as contained in clause (f) of Sec. 2 of the said Act. Thus the lands which do not come within the purview of the aforementioned definition are not saved in terms of Sec. 5 of the Bihar Land Reforms Act. Homestead lands which are held by the land holder for agricultural purpose would also come within the purview of land as contained in clause (f) of Sec. 2 of the said Act. The definition of the land"reads as follows :- "Land" means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, kharhur or pasturage or forest land or even land perennially submerged under water or the homestead of a land holder." Reference in this connection may be made to the decision reported in AIR 1973 Pat 97 , Md. Yusuf V/s. The Member, Board of Revenue : Syed Eakir Mohammad V/s. Sheikh Salabuddin, reported in 1974 BBCJ 1941 : ( AIR 1975 Pat 119 ) and Uma Devi V/s. Raktoo Thakur reported in BR and LJ 194 (sic). 13. In Mahabir Prasad V/s. The State, reported in 1975 BBCJ 701 a Division Bench of this Court upon considering the definition of the land"as contained in Sec. 2(f) of the Act observed as follows at page 264 :- "A mere reading of the definition is in my view, conclusive in the matter. The definition clearly says that land includes the homestead of landholder (as defined in the explanation), when the definition specifically says that homestead is included within the expression land"it is impossible to hold that it is not. I am also not prepared to accept the contention that homestead does not come within one of the clauses mentioned in Sec. 4. Section." 14. For the reasons aforementioned, there is no merit in this application. It is accordingly dismissed. However, in the facts and circumstances of the case, there will be no orders as to costs. 15. R. M. PRASAD, J.:- I agree. Application dismissed.