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PETITIONER:

STATE OF MAHARASHTRA

Vs.

RESPONDENT:

NARAYAN RAO SHAM RAO DESHMUKH & ORS.

DATE OF JUDGMENT19/03/1985

BENCH:

VENKATARAMIAH, E.S. (J)

BENCH:

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

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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

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though she has acquired an

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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,

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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.

JUDGMENT:

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

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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

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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

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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.

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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

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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

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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,

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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

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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

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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.

S. R. Appeal allowed

372