INDUBAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition by the land order of appeal No. Alc-A-1742 of 1976 arising out or order of Surplus Land Determination TRibunal No. 1 Kelapur dated 31-5-76 in Ceiling Enquiry Case No. 23|60-A (5) of 1975-76 of Pahapad.

(2.) On return under Section 12 of the Ceiling Act filed by pertioner No. 2, the Surplus Land Determination TRibunal found that the petitioner No.2 family unity held total land 93.02 acres. Potkharab lands found therin was 5.35 acres. His family holding consisted of 3 members including his major son Suresh. The property in the hands of the petitioner No.1 was ancestral notionla share of major son theirn was determined at held 58.05 acres. Petitioner No.1 held separately 36 acres of land in s. Nos. 3 and 23 situated at Pathoda. Potkjarab theirn was determined at 3.02 acres. Thus 32.17 acres of petitioner No.1 was clubbed with 58.5 acres of petitioner No.2 Total holding were thus 92.4 acres. Deducting 54 acres of land, suplus with the petitioner was held at 37.4 acres vide order of Surplus Land Determination Tribunal dated 31-5-1976. This order was challenged by the petitioner in appeal before Maharashtra Revenue Tribunal. They contended that 36 acres of petitioner No. 1 be treated as ancestral property and notional share of the major son suresh theirn should be deducted from total holding. They further contended that at any rate the total holdings of the petitioners are joint family properties and the major son Suresh has a share theirn. They also contended that 1.31 acres in s. No. 45 of village Zuil is not in their possession, but it was in the possession of the trespasser Antu on the relevant date and this land is also liable these contentions were rejected by Maharastra Revenue Tribunal and the Maharastra Revenue Tribunal dismissed the appeal vide order dated 16-71976. These orders of surplus Land Determination Tribunal and mahasrashtra Revenue TRibunal are challenged in this petition by the petitioners 1 and 2.

(3.) The learned counsel for the petitioner Shri r. N. Deshpande urged that mother has no share iin the joint family property unless theere is actual partition by merits and bounds. According to him share means pre-existing sharee. The petitioners major sons share in the .....below. The Revenue Tribunal below carved out 1+3 notional share of the major son Suresh at 29.02 acres and giving this deduction to the petitioners from their total joint family holding 93.02 acres, the surplus was determined. Shri Deshpande contended that the share of each member of the family in the total land held by the family as mentioned in Section. 3 (3) (1) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 should be the share to which thee major is son generally entitled to under Hindu Law. The mother of the major sonwill get a share only in the event of partition by metes and bounds or when the property is divided actually on partition. Till then she can have no share. The interpretation of the said provision as also the provisions of Section 3(3) (ii) are obviously incorect. Section 3(a) (I) and (ii) recites as under : Where any land - (a) is held by a family of which a person is a member, (b) (c) (d) X X X and the holding of such person or of a family unit of which such person is a member (including the extent of sharee of such person, if any in the land answering to any of the descriptions in clauses (a), (b) , (c) or (d) above) exceds the ceiling area on or before the commencement date oor on any date therafter (herinafter referred to as the relevant date), then of for the puprpose of determining the ceiling area and the surpluss land in respect of that holding, the dhare of such person in thee land aforesaid shall be calculated in the following manner. (i) in the land held by a family of which the person is a mamber, the share of each member of the fam,ily shall be determined so that each member who is enttitled to a share on partition shall be taken to be holding separately land to the extent of his share as if the land has been so divided and separately held on the relevant date. (ii) in the land held in or operated by a co-operative society or held jointy with others or held firm, the share of the person shall be taken to be the extent of the land such person would hold in proportaion of his share in the cooperative society, or his share in the joint holding or his share as partner in the firm, as if the land has been so divided and separately held on the relevant date".