NARAYANRAO SHAMRAO DESHMUKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two petitions raise a common question of law and are dealt with together.

(2.) SPECIAL Civil Application No. 163 of 1967 is by the three heirs of one Shamrao Deshmukh who died on 15-6-1957 leaving behind him his son Narayanrao, his widow Sulochanabai and his mother Gangabai, who are the present petitioners. While Shamrao was alive he and the petitioner No. 1 formed a joint Hindu family in which according to the Hindu Women's Right to Property Act, 1937, Shamrao's widow and Narayanrao's mother Sulochanabai, had a right to claim partition in the event of the partition between the father and the son and after the death of Shamrao she had a right to claim partition from her son Narayanrao. The Hindu Succession Act which came into force with effect from 17th June 1956 made the mother also an heir along with the son and the widow and in the share owned by the deceased Shamrao during his life time the son, the widow and the mother held equal shares. As per the decision of the Division Bench of this Court in Rangu-bai v. Laxman, AIR 1966 Bom 169 when the interest of the deceased coparcener is to be determined under Section 6 of the Hindu Succession Act, the Courts have first to determine what is the property available for partition, then partition all the corparcenary property setting aside the share of the widow to which she is entitled in her own right and divide the share of the deceased coparcener amongst the heirs. Thus when a Hindu coparcener leaves a widow and a son on his death, on a partition during the life time of him, the widow would have been entitled to one-third share and on succession to a further one-sixth share. On the basis of this decision for determining the share which would go to the heirs of Shamrao it will have to be assumed that there was a notional partition immediately before the death of Shamrao between him, his son and the wife and Shamrao would have had only one-third share in the property which would devolve on his death on his heirs under Section 8 of the Hindu Succession Act. On the basis of the authority of this decision, his son Naravanrao would be having four-ninth share, the widow Sulochanabai would have had four-ninth share and the mother Ganga-bai would have had one-ninth share. On the death of Shamrao these respective shares became defined and would on their respective deaths go to their own heirs. Thus the three heirs of Shamrao would become the tenants-in-common having well defined shares in the property left after the death of Shamrao.

(3.) SPECIAL Civil Application No. 163 of 1967 arises out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, which shall hereinafter be referred to as the Ceiling Act which came into force with effect from 26th of January 1962. The joint family of Shamrao and Narayanrao held 305-49 acres of land in the Vidarbha Region and mostly in the Nagpur District, the ceiling area being 108 acres in some places and 96 acres in others. If total area of 305. 49 acres is taken to be as one unit then there would admittedly be much excess area in the occupation of the petitioners and that much excess area would be liable to be declared as surplus under the Ceiling Act.