SHAH, J. - (1.) :-
(2.) THE aforesaid two writ petitions arising under the Urban Land (Ceiling and Regulation) Act, 1976 (for short 'the Act') take exception to the orders passed by the authorities under the Act declaring the petitioners as surplus holders. THE petitioners are brothers. THEir family owns several agricultural lands. Some of the lands fall within the Urban agglomeration of Kolhapur. THE petitioners' father Balgonda died on September 10, 1970 leaving behind widow Indirabai, two sons Bhausaheb and Algonda, i.e. the present petitioners and, two daughters viz., Suvarna and Surdevi. Both Algonda and Bhausaheb were major at the time of the death of their father; while one of the two daughters viz., Surdevi was a minor. However admittedly she attained majority before the Act came into force. THEre is no dispute that the agricultural lands in question were ancestral property of the deceased Balgonda. Upon his death the lands were duly entered in the mutation record in the names of all the heirs. THE parties are Hindus governed by the provisions of Hindu Succession Act, 1956. Under section 6 of the Succession Act, when a male Hindu dies after the commencement of the Act and if the deceased had left him surviving a female relative specified in clause 1 of the Schedule or a male relative, specified in that clause, who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property devolves by testamentary or intestate succession, as the case may be, under the said Act and not by survivorship. Explanation 1 to section 6 provides that for the purposes of the said section, the interest of a Hindu Mitakashara comparcenary shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Having regard to these provisions, the estate of deceased Balgonda devolved upon his heirs in the following manner : 1. Son Algonda 1/4 + 1/20 th share 2. Son Bhausaheb 1/4 + 1/20 th share 3. Widow Indirabai 1/4 + 1/20 th share 4. Daughter Suvanr 1/20 th share 5. Daughter Surdevi 1/20 th share Needless to mention that by virtue of section 14 of the Act the widow and the daughters take their shares not as a limited owner but as a full owner. The Urban Land Ceiling Act came into force on February 28, 1976. After the commencement of the Act the petitioners filed separate returns as the lands were shown in the 7/12 record in their names having 1/2 share each. The contention of the petitioners before the Competent Authority was that their mother Indirabai and their sisters Surdevi and Suvarna are having shares in the property and therefore they should be regarded as separate units for the purpose of the Act. The competent authority however rejected the petitioners' contention and proceeded on the assumption that there are only two co-shares i.e. the petitioners Algonda and Bhausaheb and on that basis the competent authority computed excess area of 38223.42 sqm. in case of each of the petitioner. The orders passed by the competent authority are confirmed by the Collector in two separate appeals preferred by the petitioners. Mr. Sakhare learned counsel for the petitioners contended that the authorities were in error in holding that there were only two units. The counsel urged that there are in fact 5 units. He pointed out that the mother and the sisters have also inherited the property along with the sons in accordance with the provisions of the Hindu Succession Act. The learned counsel also pointed out that under section 4 of the Act the competent authority ought to have treated each of the heir of Balgonda as separate unit according to their share.
(3.) WE find considerable force in the contention of Mr. Sakhare. It is not disputed before us that the agricultural lands in question are ancestral lands. It is also not disputed that the deceased Balgonda was Hartz of family. He died intestate on 10th September 1970 and therefore his share in the joint family property will devolve upon the heirs as per section 6 of the Act.WE have already seen that in the light of the said provisions the widow and the two sons will be entitled to 1/4th + 1/20 th share each while the two daughters will be entitled to 1/20th share each. We are also in complete agreement with Mr. Sakhare that the widow and the daughter will take their separate share not as limited owner but as full owner in view of the provisions of section 14 of the Hindu Succession Act. Thus the authorities were clearly in error in computing the entire land as the property of the two petitioner alone. They have not taken into consideration the shares of the widow and the sisters. Each one of them will be entitled to be treated as a separate unit as they had inherited the property in their own right prior to the commencement of the Urban Land Ceiling Act. In these circumstances the impugned orders passed by the authorities are quashed and set aside and the matters are remitted back to the competent authority for a fresh determination of the surplus area in accordance with the observations made in this judgment. Rule is made absolute accordingly. No orders as to costs. C. C. expedited. Order accordingly.;