Venkataramaiah, J. - (1.) 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 Taibai 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 June15,1957 after the coming into force of the Hindu Succession Act, 1956 (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 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, however, 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 mother Sulochanabai and his grandmother Gangabai alias Taibai before the Sub-Divisional Officer, Saoner stating that they held in all 305.49 acres 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 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. 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(11) 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 alter August 4, 1959 about 44 acres 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 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 ratian 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.
(2.) 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 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 of land held in excess the of such ceiling and for making provisions regarding 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: "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 State. 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 hereinafter provided for surplus land."
(3.) The ceiling area 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.";