TMI Blog1985 (3) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... he family properties together though the individual interest of the female members thereof in the family properties had become fixed. Narayan Rao, Sulochanabai and Gangabai alias Taibai were together entitled to retain only one unit of ceiling area. In the result, the judgment of the High Court is set aside and the order passed by the Sub-Divisional Officer which was affirmed by the Tribunal is restored. Appeal allowed. - - - - - Dated:- 19-3-1985 - Judge(s) : R. B. MISRA., E. S. VENKATARAMAIAH., O. CHINNAPPA REDDY JUDGMENT The judgment of the court was delivered by VENKATARAMIAH J. -Sham Rao Bhagwant Rao, Deshmukh and Ms son, Narayan Rao were members of a joint Hindu family governed by the Mitakshara School of law. His wife, Sulochanabai, and his mother. Gangabai alias Taibai, were also members of that family. The said family owned extensive properties which included agricultural lands situated in fourteen villages. Sham Rao died on June 15, 1957, after the coming into force of the Hindu Succession Act, 1956 (hereinafter referred to as "the Act"), and on his death his interest in the coparcenary property devolved on his son, wife and mother in equal shares under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rposes of the Ceiling Act. He further held that the family was entitled to 96 acres of land out of the said 304.57 acres on the appointed day and as the family had alienated after August 4, 1959, about 44 acres of land in contravention of section 10(1) of the Ceiling Act, it could retain only 51.16 acres. The remaining extent of land measuring in all 222.32 acres was declared as surplus land which had to be surrendered under the Ceiling Act. Aggrieved by the decision of the Sub-Divisional Officer, Narayan Rao, his mother and grandmother filed an appeal before the Maharashtra Revenue Tribunal questioning the correctness of the said decision and that appeal was dismissed. Against the decision of the Tribunal, they filed petition before the High Court of Bombay under article 227 of the Constitution. Before the High Court, the case of family settlement was not pressed but it was contended that since the one-third interest in the family property which could have been allotted to the share of Sham Rao had he demanded a partition immediately before his death had devolved in equal shares on his heirs, i.e., his wife, mother and son, the surviving members of the family ceased to hold the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural land throughout the State. 4. (1) Subject to the provisions of this Act, no person shall hold land in excess of the ceiling area, as determined in the manner hereinafter provided. Explanation. -A person may hold exempted land to any extent. (2) Subject to the provisions of this Act, all land held by a person in excess of the ceiling area, shall be deemed to be surplus land, and shall be dealt with in the manner hereinafter provided for surplus land." The ceiling area was prescribed by section 5 of the Ceiling Act. Section 2(22) of the Ceiling Act defined the expression "person" as including family. Section 2 (11) of the Ceiling Act, read as follows : " 2. (11) 'family' includes, a Hindu undivided family, and in the case of other persons, a group or unit the members of which by custom or usage, are joint in estate or possession or residence." Section 2 (20) of the Ceiling Act stated: "2. (20) 'member of family' means a father, mother, spouse, brother, son, grandson, or dependent sister or daughter, and in the case of a Hindu undivided family a member thereof and also a divorced and dependent daughter." The Ceiling Act was applicable not only to Hindus governed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a joint family without a joint family property. At para 264 of the above treatise, it is observed thus : "264. It is evident that there can be no limit to the number of persons of whom a Hindu joint family consists, or to the remoteness of their descent from the common ancestor, and consequently to the distance of their relationship from each other. But the Hindu coparcenary is a much narrower body ........ For, coparcenary in the Mitakshara law is not identical with coparcenary as understood in English law: when a member of a joint family dies, 'his right accresces to the other members by survivorship, but if a coparcener dies, his or her right does not accresce to the other coparceners, but goes to his or her own heirs'. When we speak of a Hindu joint family as constituting a coparcenary, we refer not to the entire number of persons who can trace descent from common ancestor, and amongst whom no partition has ever taken place ; we include only those persons who, by virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us by the learned counsel for the respondents relying upon the decision of this court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum [1981] 129 ITR 440 ; [1978] 3 SCR 761, that there was a disruption of the family in question on the death of Sham Rao, as for the purpose of determining the interest inherited by Gangabai alias Taibai and Sulochanabai, it was necessary to assume that a notional partition had taken place immediately before the death of Sham Rao and carried to its logical end as observed in the above decision. Gangabai alias Taibai and Sulochanabai should be deemed to have become separated from the family. The facts of the above said case were as under. One Khandappa died leaving behind his wife, Hirabai, two sons and three daughters after the coming into force of the Act. Hirabai filed a suit for partition and separate possession of 7/24ths share in the joint family property on the basis of section 6 of the Act. She claimed that if a partition had taken place between her husband and her two sons immediately before the death of her husband, Khandappa, she, her husband and two sons would have each been allotted a one-fourth share in the family property and on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled, just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition." We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under section 6 of the Act files a suit for partition expressing her willingness to go out of the family, she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her as stated in Explanation I to section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of the Ceiling Act and the members of a family cannot hold more than one unit of ceiling area. The respondents cannot derive any assistance from the proviso to section 6 of the Ceiling Act. Section 6 of the Ceiling Act provided that where family consisted of members which exceeded five in number, the family would be entitled to hold land exceeding the ceiling area to the extent of one-sixth of the ceiling area for each member in excess of five, subject to the condition that the total holding did not exceed twice the ceiling area. The proviso to section 6 of the Ceiling Act provided that for the purposes of increasing the holding of the family in excess of the ceiling area as stated above, if any member thereof held any land separately, he would not be regarded as a member of the family for that purpose. This proviso was intended to qualify what was stated in section 6 and was limited in its operation. It was confined to the purposes of increasing the ceiling area as provided in section 6 of the Ceiling Act. It cannot be construed as laying down that wherever a member of a family had his separate property he or she should be regarded as not a member of a family and that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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