9911796707
TMI Blog1985 (3) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... y before his death irrespective of whether he was entitled to claim partition or not. According to the law governing the above family which was governed by the Bombay School under which the mother also was entitled to a share at a partition between her husband and her son equal to that of her son, one-third share in the family property could have been allotted to the share of Sham Rao immediately before his death had a partition taken place. That one-third share devolved in equal shares on Narayan Rao, Sulochanabai and Gangabai alias Taibai, each inheriting one-ninth share of the family property. They, however, continued to live together enjoying the family properties as before. On January 26, 1962, the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as "the Ceiling Act"), came into force. As required by the Ceiling Act, Narayan Rao filed a declaration on behalf of himself, his mother, Sulochanabai, and his grandmother, Gangabai alias Taibai, before the Sub-Divisional Officer, Saoner, stating that they held in all 305.49 acres of agricultural land and that under a family arrangement entered into on March 30, 1957, they were holding the lands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Act. The High Court upheld the above plea. It held that since the one-ninth share of Gangabai alias Taibai, the mother of Sham Rao, did not exceed the ceiling area, she could retain all the land belonging to her. It further held that Narayan Rao and Sulochanabai were each entitled to 4/9ths share of the property and each of them was entitled to retain for himself or herself, as the case may be, one unit of ceiling area out of his or her 4/9ths share in the family property and only the surplus was liable to be surrendered. The High Court directed the Sub-Divisional Officer to pass fresh orders accordingly in the light of its decision. The State Government has filed this appeal by special leave against the decision of the High Court. In order to examine the correctness of the contentions urged in this appeal, it is necessary to refer briefly first to the relevant provisions of the Ceiling Act, as they stood on the appointed day, i.e., the date on which the said Act came into force. The Ceiling Act came into force on January 26, 1962, as per notification issued by the State Government under section 1(3) thereof. The Ceiling Act as its long title indicates was enacted for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt property in which the members of the undivided family had community of interest was unknown. The Ceiling Act intended that even amongst such non-Hindu communities, a family should not be permitted to hold agricultural land in excess of the ceiling. It is with this object a wider definition of the expression 'family' was given in section 2(11) of the Ceiling Act as including not only a Hindu undivided family but other families too whose members could belong to any of the classes mentioned in section 2(20) of the Ceiling Act. In the case of families other than a Hindu undivided family, a father, mother, spouse, brother, son, grandson or dependent sister or daughter constituted a family and by virtue of section 2 (20) were treated together as a person and in the case of Hindu undivided family, every member thereof was treated as a member of the family. A divorced and dependent daughter also could be a member of the family. The contention urged before us is that by reason of the death of Sham Rao, the family became disrupted or divided and that Narayan Rao, his mother and his grandmother ceased to be members of a joint Hindu family. Elaborating the said contention, the learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms in Hindu law by legislation." A Hindu coparcenary is, however a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. ( Gowli Buddanna v. CIT [1966] 60 ITR 293 (SC) and Sitabai v. Ram Chandra [1970] AIR 1970 SC 343). A joint family may consist of a single male member and his wife and daughters. It is not necessary that there should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, she claimed the one-fourth share which had to be allotted in her favour on the notional partition and 1/24th share (which was one-sixth of the one-fourth share of her husband), i.e., in all 7/24ths share. It was contended on behalf of the contesting defendant that she could not get the one-fourth share since actually no partition had taken place. Chandrachud C.J. rejected the said contention with the following observations at p. 768 of SCR (p. 447 of 129 ITR) : "In order to ascertain the share of heirs in the property of a deceased coparcener, it is necessary, in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed is that a partition had in fact taken place between the deceased and his coparcene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct, it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow from the language of the statute. In such an event, she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
