State of Maharashtra Vs. Narayan Rao
Sham Rao Deshmukh & Ors [1985] INSC 62 (19 March 1985)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) REDDY, O. CHINNAPPA (J) MISRA, R.B. (J)
CITATION: 1985 AIR 716 1985 SCR (3) 358 1985
SCC (2) 321 1985 SCALE (1)601
ACT:
Maharashtra Agricultural Lands (Ceiling on
Holdings) Act, 1961, Sections 2(11) 2(22) and 6-Scope of.-Whether a female who
inherits a share in a joint family property by reason of the death of a male
member of the family automatically ceases to a member of the joint family by
virtue of the proviso to Section 6 of the Land Ceiling Act read with
explanation 1 thereto, entitling her to a separate unit-Features of Hindu
Undivided Family and coparcenary explained.
HEADNOTE:
Sham Rao Bhagwant Rao Deshmukh, his son
Narayan Rao Sham Rao Deshmukh, his wife Sulochanabai and his mother Gangabai
alias Taibai were members of a joint Hindu Family governed by the Mitakshara
School of Law. The said family owned extensive property 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, and on his
death his interest in the coparcenary property devolved on his son, wife and
mother in equal shares under Section 6 of the Ceiling Act, such interest being
the share that would have been allotted to him if a partition of the family
property had taken place immediately 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 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. As required by the Maharashtra Agricultural Ceiling Act
which came into effect on January 26, 1962, Narayan Rao filed a declaration on
be half of himself, his mother, and his grandmother before the Sub-Divisional
Officer. Soqoner 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 in distinct and separate shares, Narayan Rao holding one
half share and the other two holding one- fourth share each and that each of -
them was entitled to retain 96 acres which was the maximum extent of land which
a person in that area could hold after the Ceiling Act came into force.
359 The Sub-Divisional Officer after enquiry
held (i) that the alleged family settlement was not true; (ii) Narayan Rao, his
mother and his grand-mother were joint in estate and constituted a family
within the meaning of that expression as defined in Section 2(11) of the
Ceiling Act; (iii) the family could not, therefore, hold agricultural land in
excess of one unit of the Ceiling area; (iv) the family was entitled to 96
acres of land only out of 304.57 acres held by it on the appointed day; (v) 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;
and (vi) the remaining extent of land measuring in all 222.32 acres must be
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 grand-mother 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 a petition before the High Court of Bombay under Article
227 of the Constitution. The High Court accepted the contention 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 that is his wife, mother and son, the
surviving members of the family ceased to hold the family property as members
of a family and, there- fore, each of them was entitled to be allowed to retain
one unit of the ceiling area under the Ceiling Act, allowed the writ petition
and directed the Sub Divisional Officer to pass fresh order in the light of its
judgment.
Hence the State appeal by special leave.
Allowing the appeal, the Court ^
HELD: 1.1 The Proving to Section 6 of the Hindu
Succession Act, 1956 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.
[370E]
1.2 A legal fiction should no doubt
ordinarily be carried to its logical end to carry out the purposes for which it
is enacted but it cannot be carried beyond that.
[369C] 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 Hindu Succession
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. Otherwise 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 360 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 family. [369C-F]
In the instant case, the theory that there was a family settlement not being
pressed and there being no action taken by either of the two females concerned
in the case to become divided from the remaining members of the family,
notwithstanding the death of Sham Rao the remaining members of the family
continued to hold the family properties together though the individual interest
of the female members thereof in the family properties had become fixed.
[369H; 370A]
1.3 Since a "person" as defined in
Section 2(22) of the Act includes a "family" as defined in Section
2(11) for purposes of the Ceiling Act, the members of a family cannot hold more
than one unit of ceiling area. In the circumstances of the case, here, Narayana
Rao, Sulochanabai and Gangabai alias Taibai were together entitled to retain
only one unit of the ceiling area as held by the Sub- Divisional Officer, which
was affirmed by the Tribunal, [364E; 371B] 21 The joint and undivided family is
the normal condition of a Hindu Society. An undivided Hindu family is
ordinarily joint not only in estate but in food and worship but it is not
necessary that a joint family should own joint family property. There can be a
joint family without a joint family property.
[365F]
2.2 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 a 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 can not 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, [366D-E]
2.3 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 and
joint family may consist of a single male member and his wife and daughters. It
is not necessary that there should be two male members to constitute a joint
family. [366F-G] Gowli Buddanna v. Commissioner of Income Tax Mysore, Bangalore
[1966] 3 S C.R. 224; Sitabai & Anr. V. Ram Chandra, [1970] 2 S.C.R l; N.V.
Narendranath V. Commissioner of Wealth Tax, Andhra Pradesh, Hyderabad [1969] 3
S.C.R, 882 referred to.
361
2.4 While under the Mitakshara Hindu law
there is community of ownership and unity of possession of joint family property
with all the members of the coparcenary, in a coparcenary governed by the
Dayabhaga law, there is no unity or ownership of coparcenary property with the
members thereof. Every coparcener takes a defined share in the property and he
is the owner of that share. But there is, however, unity or possession. The
share does not fluctuate by births and deaths. Thus it is seen that the
recognition of the right to a definite share does not militate against the
owners of the property being treated as belonging to a family in the Dayabhaga
law.
[366G-H; 367A-B]
2.5 The decision of the Supreme Court in
Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum & Ors, [1978] 3 S.C.R.
761 has to be treated as an authority for the proposition that when a female
member who inherits an interest in the joint family property under Section 6 of
the Succession 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 Succession Act, and lot an
authority for the proposition that she ceases to be a member of the family on
the death of a male member of the family whose interest in the family property
devolves on her without her volition to separate herself from the family.
[367C; 369A-D] Garupad Khandappa Magdum v.
Hirabai Khandappa Magdum & Ors. [1978] 3 S.C.R. 761; explained.
CIVIL, APPELLATE JURISDICTION; Civil Appeal
NO. 1441 Of 1971 From the Judgment & Order dated 26.4.1970 Of the Bombay
High Court in Special Civil Application No, 163/1967.
Y.S. Desai and M.N. Shroff for the Appellant,
U.R.Lalit and A.G. Ratnaparkhi for the Respondents, The Judgment of the court
was delivered by VENKATARAMIH, J. Sham Rao Bhagwant Rao Deshmukh and his 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 Tribai Were
also the 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 Successions Act, 1926
(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 6 of the Act, such interest 362 being the share that would have been
allotted to him if a partition of the family property had taken place
immediately 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, how ever, 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 acre of agricultural land and that under a family arrangement entered
into on March 30, 1957 they were holding the lands in distinct and separate
shares, Narayan Rao holding one-half and the other two holding one-fourth share
each and that each of them was entitled to retain 96 acres which was the
maximum extent of land which a person in that area could hold after the Ceiling
Act came into force. The Sub-Divisional ; officer after enquiry held that the
alleged family settlement was not true, Narayan Rao, his. mother and his
grandmother were joint in estate and constituted a family within the meaning of
that expression as defined in Section 2(1 ]) of the Ceiling Act and the family
could not hold agricultural land in excess of one unit of the ceiling area, The
Sub- Divisional Officer came to the conclusion that the total area held by the
said family on the appointed day was 313.57 acres, and as the said lands were
situated in different villages and the ceiling area in all the villages except
in Chanakpur village was 96 acres and in Chanakpur village the ceiling area was
108 acres, the total land held by the family was to be converted into 304.57
acres for purposes 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 363 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 a 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 family property as members of a
family and, therefore, each of them was entitled to be allowed to retain one
unit of the ceiling area under the Ceiling 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
4/9th 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 4/9th
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 purpose of imposing a maximum limit (or ceiling) on the holding
of agricultural land in the State of Maharashtra to provide for the acquisition
and distribution on land held in excess of such ceiling and for making
provisions regarding a matters connected with the purposes aforesaid. The
imposition of ceiling on the holding of agricultural land was found to be
necessary in the interests of the agrarian economy of the State. The Ceiling
Act also made provisions for the distribution of surplus land acquired from
persons who were holding in excess of the ceiling amongst the landless and
other persons. Sections 3 and 4 of the Ceiling Act provided as follows 364
"3 In order to provide for the more equitable distribution of agricultural
land amongst the peasantry of the State of Maharashtra (and in particular, to
provide that landless persons are given land for personal cultivation),on the
commencement of this Act there shall be imposed to the extent, and in the
manner hereinafter provided, a maximum limit (or ceiling) on the holding of
agricultural land throughout the States.
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 herein after provided for surplus land."
The ceiling areas was prescribed by Section 5 of the Ceiling Act. Section 2(22)
of the Ceiling Act defined the expression 'person' as including a 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 a 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 by the Mitakshara Hindu Law which recognized an undivided Hindu
family but to all other communities amongst whom the concept of an undivided
family owning joint property in which the members of the undivided family had
community of interest was unknown. The 365 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(21) were treated together as a
person and in the case of a 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 of 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 counsel for the
respondents herein argued that by virtue of the proviso to section 6 of the Act
read with Explanation I thereto which purposes of quantifying the interest in
the joint family property that devolved on the heirs of a deceased male Hindu
required that it should be assumed that a notional partition had taken place in
the family immediately prior to the death of the deceased, the female heirs of
such deceased Hindu become divided or separated from the family on the death of
the deceased. In order to examine the validity of this submission it is
necessary to refer to some of the relevant features of a Hindu undivided family
and to consider the effect of the provisions of section 6 of the Act on such
family.
As observed in Mayne on Hindu Law and Usage
(1953 Edn ) the joint and undivided family is the normal condition of a Hindu
society. An undivided Hindu family is ordinarily joint not only in estate but
in food and worship but it is not necessary that a joint family should own
joint family property. There can be a joint family without a joint family
property. At para 264 of the above treatise it a 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 366 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 or a
joint family dies, 'his right - accrues to the other members by survivorship,
but if a coparcener dies his or her right does not accrue 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 a common ancestor, and amongst whom no
partition has ever taken place; we include only those person 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.
Outside this body, there is a fringe of
persons possessing only inferior rights such as that of maintenance, which
however tend to diminish as the result of reforms 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 a 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.
(See Gowli Buddanna v. Commissioner of Income-tax, Mysore. Bangalore(l) and
Sitabai & Anr. v Ram Chandra).(2) A joint family may consist of a single
male member and his wife and daughters. It is not necessary that there should
be two male member to constitute a joint family. (See N. V, Narenderanath v.
Commissio- (1) [1966] 3 S.C.R. 224.
(2) [1970] 2 S.C.R. 1.
367 ner of Wealth Tax, Andhra Pradesh,
Hyderabad).(l) While under the Mitakshara Hindu law there is community of
ownership and unity of possession of joint family property with all the members
of the coparcenary, in a coparcenary governed by the Dayabhaga law, there is no
unity of ownership of coparcenary property with the members thereof.
Every coparcener takes a defined share in the
property and the property and he is the owner of that share. But there is,
however, unity of possession. The share does not fluctuate by births and
deaths. Thus it is seen that the recognition of the right to a definite share
does not militate against the owners of the property being treated as belonging
to a family in the Dayabhaga law.
We have earlier seen that females can be the
members of a Hindu joint family. The question now is whether females who
inherits a share in a joint family property by reason of the death of a member
of the family ceases to be a member of the family. It was very forcefully
pressed upon us by the learned counsel for the respondents relying upon the
decision of this Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum
& Ors. (2) 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 these. 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 7/24th 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 the death of her husband the one fourth share
which would have been allotted in his favour had devolved in; equal shares on
her, her two sons and three daughters. Thus she claimed the one-fourth share
which had to be allotted in her favour on the (1) [1969] 3 S.C.R. 882.
(2) [1978] 3 S.C.R. 761.
368 national partition and 1/24th share
(which was one-sixth of the one-fourth share of her husband) i e. in all 7/24th
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, CJ rejected the said contention with the following observations at
p. 768: .
"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 I 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 caparceners immediately before his death. That assumption, once made, is
irrevocable. In other words, the assumption having been made once for the
purpose of ascertaining, the share of the deceased in the coparcenary property,
one cannot go back on that assumption and ascertain the share of heirs of the
without reference to it. The assumption which the statute requires to be made
that a partition had in fact taken place must permeate the entire process of
ascertainment of the ultimate share of the heirs, through all its stages. To
make the assumption at the initial stage for the limited purpose of
ascertaining the share of the deceased and then to ignore it for calculating
the quantum of the share of the heirs is truly to permit one's imagination to
boggle. All the consequences which flow from a real partition have to be
logically worked out, which means that the share of the heirs must be
ascertained on the basis that they had separated from one another and had
received a share in the partition which had taken place during the life time of
the deceased. The allotment 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 369 a share allotted to a coparcener in an actual partition can- not
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 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 member of the
family whose interest in the family property devolves on her without her
volition to separate herself from the family.A legal fiction should no doubt
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 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 family. As already observed the ownership of a
definite share in the family property by a person need not be treated as a
factor which would militate against his being a member of a family. We have
already noticed that in the case of a Dayabhaga family, 370 which recognises
unity of possession but not community of interest in the family properties
amongst its members, the members thereof do constitute a family. That might
also be the case of families of persons who are not Hindus. In the instant case
the theory that there was a family settlement is not pressed before us. There
was no action taken by either of the two females concerned in the case to become
divided from the remaining members of the family. It should, therefore, be held
that notwithstanding the death of Sham Rao the remaining members of the family
continued to hold the family properties together though the individual interest
of the female members thereof in the family properties had become fixed.
We have already seen that a 'person' includes
a 'family' for 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 a 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 purpose 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 or she would be entitled to
a separate unit of ceiling area.
The High Court having held that after the
death of Sham Rao the joint family of Narayan Rao, Sulochanabai and Gangabai
continued and that there was nothing to show that Narayan Rao, Sulochanabai and
Gangabai separated in residence after the death of Sham Rao erred in holding
that each of them was entitled to a separate unit of ceiling area in the
circumstances of this case. Its construction of the proviso to Section 6 of the
Ceiling Act is also erroneous.
Its conclusion that "even though,
therefore, ordinarily a person may be a member of a Hindu joint family for the
purpose 371 of the Ceiling Act, he would "not be held to be a member if he
holds land separately" for all purposes is again erroneous for the reasons
already given above.
In the circumstances of the case, we are of
the view that 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.
For the foregoing reasons the appeal is
accordingly allowed. There shall be no order as to costs.
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