INDUBAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a letters patent appeal arising out of the proceedings under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short the Ceiling Act). The only question raised in this letters patent appeal is whether the petitioner No. 1, who is the wife of the petitioner No. 2 is entitled to a share under section 3(3)(i) of the Ceiling Act on a notional partition as contemplated by the said sub-section. The learned Counsel for the appellants has urged that unless there is a partition by metes and bounds between the father and the son, the mother is not entitled to get any share in the joint family property. In support of the proposition the learned Counsel for the appellant has relied upon the judgment of the Privy Counsel in the case of (Pratapul Agarwalla v. Dhanbati Bibi) A.I.R. 1936 P.C. 20 and of the Gujarat High Court in the case of (Modi Nathubhai Motilal v. Chhotubhai) A.I.R. 1962 Guj. 68.

(2.) It may be seen that although the above proposition may be a correct statement of the general law applicable to Hindus, what we concerned with is the special provision of section 3(3)(i) of the Ceiling Act. It is, therefore, necessary to interpret the said sub-section. For its proper appreciation, it is reproduced below :

(3.) It is clear from the provisions of sub-section (3) of section 3 that when any land is held by a family of which the person concerned is a member then in the land held by the family of which he is a member share of each member of the family has to be determined so that each member, who is entitled to a share on partition, shall be taken to be holding separately the land to the extent of his share as if the land has been so divided and separately held on the relevant date. It is also clear from the aforesaid provision that it creates a fiction as it contemplates a national partition by metes and bounds on the relevant date. In our view the phraseology use therein clearly shows that if the notional partition were to take place by metes and bounds on the relevant date, the share of the member concerned of the family has to be found out on such a notional partition on that date, which share according to the said sub-section the member concerned would be holding separately. The said sub-section thus contemplates notional partition metes and bounds so that the total holding of the member of the family concerned can be determined for the purpose of the Ceiling Act.