Murlidher Rao, J.
1. The petitioner is a declarant, having filed his declaration under Section 66 of the Karnataka Land Reforms Act; he hold 140 acres and 37 guntas of lands in villages Dandothi and Mallkhad, Chittapur Taluk, Gulbarga District. His family, as per his declaration, consists of himself, his wife, two major sons and four unmarried daughters. The lands are 'D' class lands and the petitioner states that "the lands declared by him are the joint family lands, which arc shared by himself, his wife, two major sons and four unmarried daughters". The Land Tribunal has held that the, petitioner is entitled to hold only 108 acres and hence there is a surplus of 32 acres and 37 guntas; the Tribunal has considered one son as major. The ceiling limit for an individual or family being 10 units i.e. , 54 acres, it is calculated for two families. Declarant, his wife, one minor son and 4 unmarried daughters, constituting one family and a major son as second family. Thus, calculating, it is held that the declarant is entitled to retain 108 acres i.e., 54 x 2.
2. It is contended by Sri Apparao that Basbeeruddin, the second son of the declarant was also a major, he having been born on 1-6-1952. It is contended that since the impugned order is passed on 21-5-1984, on the date of determination, his age would be 32 years; reliance, for this proposition, is placed on Nagappa Channappa -v.- State of Karnataka.1979(1) KLJ 420 According to the learned Counsel, this major son also would be entitled to 54 acres, as such, there would be no surplus at all. This so even on 1-3-1974; by which date, Basheeruddin had completed 19 years.
Secondly, it was contended that even if, he is treated as minor, the declarant's family would consist of 7 members i.e., himself, his wife, 4 unmarried daughters and one minor son. In which event, he would be entitled to four additional Units, as per the proviso to sub-Section(2) of Section 63, which means he will be entitled to 20 acres and 16 guntas, in addition to 54 acres.
3. Petitioner's Counsel has produced a Certificate issued by Head Master, Government Higher Primary School, D and it does not bear any date. It is captioned as "JANMA DAKHILE CERTIFICATE" (Editor: The text of the vernacular matter has not been reproduced. Please write to
in several particulars. To connect it with Declarant's son's age, some mere evidence would be necessary. The certificate has to be proved, with reference to "original registers. Admittedly, it was not produced before the Tribunal. So, it had no opportunity to consider it; without further proof, it is unsafe to act on it.
4. It is contended by Sri Chandangoudar, HCGA, that for purposes of ceiling, the relevant date is 1-3-1974. He states that if on 1-3-1974, the declarant had 'Surplus', that 'surplus' land vests in the State. It is not capable of being tinkered with or varied, depending on the rights of heirs, future events like Succession, etc. He placed reliance on Bhikoba Shankar -v.- Mohan Lal Punchand . Mr. E. S. Venkataramiah, J. speaking for the Court stated this:
"13. A close reading of the aforesaid provisions of the Act shows that the determination of the extent of surplus land of a holder has to be made as on the appointed day.
It is obvious from the foregoing requirements prescribed under Section 12 of the Act that the crucial date with reference to which the extent of the surplus land held by a person is to be determined is the appointed day in the case of persons holding land in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed day and in the case of those acquiring, holding or coming into possession of such excess land on or after the appointed day, the day on which they acquire possession of any land in excess of ceiling area.
This liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under Section 21 of the Act. It is no doubt true that Section 21 of the Act states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette. But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under Section 12(l)(a) of the Act, to the date of taking possession of any land in excess of the ceiling area in the case of those who come under Section 12(l)(b) of the Act and to the date of conversion of land into a different class in the case of those who come under Section 12(2) of the Act. Any other construction would make the Act unworkable and determination of the extent of surplus land of a bolder ambulatory and indefinite."
5. The Court relied on the observations of the Supreme Court in Raghunath I.axman Wani -v.- State of Maharashtra. In the said decision, Justice J.M. Shelat, as he then was, observed :
"17. xxx xxx xxx
The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess of the ceiling area as determined under the Act and that ceiling area would be that which is determined as on the appointed day. Therefore, if there is a family consisting of persons exceeding five in number on January 26, 1962, the ceiling area for that family would be the basis ceiling area plus l/6th thereof per member in excess of the number five. The ceiling area so fixed would not be liable to fluctuations with the sub-sequent increase or decrease in the number of its members, for, there is, apart from the explicit language of section 3 and 4 no provision in the Act providing for the redetermination of the ceiling area of a family on variations in the number of its members. The argument that every addition or reduction in the numbers of a family requires redetermination of the ceiling area of such a family would mean and almost perpetual fixation and re-fixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the legislature. The argument would also mean that where a surplus area is already determined and allotted to the landless persons such area would have to be taken back and given to a family, the number of whose members subsequently has augmented by fresh births."
6. In State of Maharashtra -v.- Annapurnabai, it is held that :
"4. The question arising in this appeal is no longer res integra. It is concluded in favour of the State by the decision of this Court in Bhikoba Shanker v.. Mohan Lal . It was held by this Court in that case that the liability to surrender surplus land does not in any way come to an end by reason of the death of the , holder before the actual extent of surplus land is determined and notified under Section 21 of the Act. Section 21 of the Act no doubt states that the title of the holder of the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in Official Gazette. But the liability to surrender the surplus land relates back to the appointed day in case of those who held land in excess of the ceiling on the appointed day. Therefore, even if the holder dies before declaration of any part of his land as surplus land, the surplus land is liable to be determined with reference to his holding on the appointed day and it is not open to the heirs and legal representatives of the holder to contend that they have inherited the land belonging to the holder and that the surplus land should be determined on the footing that each of them is in independent tenure holder in his or her own right."
7. The underlying policy of Agrarian reforms, being uniform in all States, the irresistible conclusion is that the 'surplus' holding has to be determined only with reference to the appointed day, i.e., 1-3-1974 and not on the date of determination by the Land Tribunal, which may take several years, during which period several changes may take place by addition or subtraction, in the members of the family. In my view, the decision of this Court in Nagappa Channappa's case after the authoritative pronouncement of Supreme Court, referred to above can no longer be good law. Indeed, Mr Kudoor, J. has held in Buddavva-v.-Land Tribunal, Bagalkot W.P. No. 11637/76 DD. 20-2-1979 that the relevant date on which the ceiling limit as provided under Section 66 shall have to be computed is the date of the commencement of the Amend-ment Act (1-3-1974) and not the date prescribed by which the declaration under Section 66 has to be applied. Therefore, the date of determination by the Land Tribunal is irrelevant for determining 'surplus'.
8. In the instant case, if, on 1-3-1974 Basheeruddin was a minor, which position is not admitted by the petitioner's Counsel, the order of the Tribunal needs to be modified, so as to add four additional units to the ceiling limit of declarant. But, as contended by Sri Apparao, assuming that he was a major as on 1-3-74, question is whether he would be entitled to 10 units, i.e., 54 acres, in his own right, treating himself as a "Family".
9. The declarant is a Muslim. Under the Personal Law of Muslims, a son does not get any right to the property during his father's life time. Dr. Tahir Mahmood in his book "The Muslim Law of India", in Chapter dealing with Law of Inheritance states:
"3. In Muslim law, so long as a person is alive he or she is the absolute owner of his or her property ; nobody else (including a son) has any right, whatsoever in it. It is only when the owner dies and never before that the legal rights of the heirs accrue. There is, therefore, no question of a would-be heir dealing in any way with his future right to inherit.
4. The Indian legal concepts of 'joint' or 'undivided' family, 'coparcenary', 'Karta', 'survivorship', 'partition', etc., have no place in the law of Islam. A father and his son living together do not constitute a 'joint family' ; the father is the master of his property ; the son (even if a minor) of his, if he has any. The same is the position of brothers or others living together."
The latter portion regarding "joint family" though applicable to other properties is not applicable to agricultural lands, as the concept of Joint Family as defined in clause 17 of Section 2 is "a group or Unit the members of which are by custom joint in estate or residence". However, the right of a son, under personal law being what it is, whether he is entitled to be treated as one who is entitled to get ten units, treating himself as a family under the Land Reforms Act. While, a minor son is a member of a family, the major son is not. Under clause (a), the family consists of husband, wife or wives, minor sons and unmarried daughters; clause (b) refers to widow or widower with his or her minor sons and unmarried daughters. Clause (c) refers to divorcee with minor sons and unmarried daughters, who are orphans. The act aims at protecting minor sons and unmarried daughters in all circumstances.
It also protects widows or divorcees with their minor sons and unmarried daughters. Married daughters and major sons are excluded. So far as married daughter is concerned, with her marriage, she gets included, in the family of her husband and she gets benefit of clause (a). If she remains unmarried, as a spinster, so long as her parents or any one of them is alive, she is included within clause (a) or clause (b), and if both are dead, being an orphan she constitutes a 'family' under clause (d). Major son, so long as he remains a bachelor, is totally excluded. The Land Reforms Act aims at prescribing a 'ceiling' on agricultural holdings, it is not an act to confer or create rights in the property. This takes me to Section 63 of the Act, which reads:
"63. Ceiling on Holding (1) No person who is not a member of a family or who has no family and no family shall, except as otherwise provided in this Act, be entitled to hold, whether as land owner, land lord or tenant or as a mortgagee with possession or otherwise or partly in one capacity and partly in another, land in excess of the ceiling area.
(2) The ceiling area for a person who is not a member of a family or who has no family or for a family shall be ten Units ;
Provided that in the case of a family consisting of more than five members the ceiling area shall be ten units plus an additional extent of two units for every member in excess of five, so however that the ceiling area shall not exceed twenty units in the aggregate.
(3) In the case of a family the ceiling area shall be applied to the aggregate of the lands held by all the members of the family, including the Stridhana land.
(4) In calculating the extent of land held by person who is not member of a family but is a member of a joint family and also in calculating the extent of land held by a member of a family who is also a member of a joint family, the share of such member in the lands held by a joint family shall be taken into account and aggregated with the lands, if any held by him separately and for this purpose such share shall be deemed to be the extent of land which would be allotted to such person had there been a partition of the lands held by the joint family.
(5) In respect of lands owned or h ld under a private trust -
(a) where the trust is revocable by the author of the trust, such lands shall be deemed to be held by such author or his successor in interest ; and
(b) in other cases, such lands shall be deemed to be held by the beneficiaries of the trust in proportion to their respective interests in such trust or the income derived therefrom."
10. The word 'person', which had been defined in the original Act by Section 2(24) has been omitted on 1.3.74. The original definition was an inclusive definition, it included Company, family, association and institution. This has been omitted, because the person, who are capable of holding are categorised in Section 63 itself; they are:
owner, landlord, tenant, mortgagee with possession or otherwise, partly in one capacity or partly in another.
The above being the only capacities, which entitles a person to hold the land, it is obvious, one who does not belong to any one of these categories would not be entitled to hold land for purposes of ceiling. A Muslim son cannot claim ownership rights, during the lifetime of his father. But, Mr. Apparao argued that such an interpretation would be violative of Article 14 of the Constitution and would be discriminatory. Since the Act is included in the Ninth Schedule, this argument has to be rejected. But the question still remains whether 'major sons' of other Communities can be treated as such? The Act does not make any distinction between Hindus and Muslims. Wherever it intended to refer to Hindus specifically, it is so mentioned ; for example : Section 2(17) "Hindu Joint Family". The concepts of, "Family", "Joint Family", "Limited Owner", "Stridhana land" should be understood, as defined in the Act, uninfluenced by personal Law governing the parties. It is applicable to one and all, irrespective of their personal law. That it is so, is made clear by the Supreme Court in Nand Lal -v.- State of Haryana.
"In fact, a provision like Section 4(3) which makes for the augmentation of the permissible area for a family when the adult sons do not own or hold lands of their own but are living with the family has one virtue that it ensures such augmentation in the case of every family irrespective of by what personal law it is governed and no discrimination is made between major sons governed by different systems of personal laws. So far as an adult son living separately from the family is concerned, he is rightly regarded as a separate unit who will have to file a separate declaration in respect of his holding under Section 9 of the Act and since he is living separately and would not be contributing his capacity to the family to cultivate the family lauds personally there is no justification for increasing the permissible area of the primary unit of the family".
11. In State of Maharashtra -v.- Vyasenira, it was held that:
"The circumstance that the land held by a constituent member of a family unit is separate property or Stridhan property is a matter of no consequence whatsoever for the purpose of determining the ceiling area which the family unit can retain. The respondent, his wife and their minor sons and minor unmarried daughters, if any are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit. The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain."
To the same effect is the decision in B.Bapi Raju -v.-State of Andhra Pradesh.
12. In Ramondrasingh -v.- State of Madhya Pradesh, it was held:
"A minor son who is deemed to be entitled to an area of joint family land proportionate to his share under Section 6(ii) of the Act is not entitled to claim a separate ceiling area independently. His share of land has to be clubbed with the land which can be claimed by his father as his ceiling area. Section 6(ii) does not have any effect on the ceiling area to which a family as defined in Section 2(gg) is entitled under Section 7."
13. In Vengdasalam Pillai -v.- Union Territory of Pondicherry, AIR 1965 SC 571 the Court was considering the provisions of Pondicherry Land Reforms (Fixation of Ceiling on Land) Act 1973; the definition of 'Family' is in Pari materia with the definition in K.L.R. Act. The appointed day is 24th January 1971. It was contended that prior to the appointed day, on 17th May 1970, a partition had been effected and the minor sons had become divided from their father, therefore, the lands, so allotted to them, could not be included in the father's declaration: similar was the ground regarding lands purchased by wife, by her Sridhanam amounts. The Court in repelling these contentions, observed :
"15. The fallacy underlying arguments advanced on behalf of the appellant is that they proceed on the erroneous assumption that the "family" referred to in the Act must conform to the concept of the joint family as known to Hindu Law. The provisions of the Act are applicable to all holders of land in the Union Territory of Pondicherry irrespective of religion, community etc. The lands may be held by Hindus, Christians, Muslims or by persons belonging to other religious faiths. All of them are equally governed by the pro-visions of the Act. The concept of a joint family is totally foreign to the personal laws of some of these communities. It is, therefore, manifestly wrong to approach the interpretation of the sections of the Act with the preconceived notion that in using the expression "family" the legislature had intended to connote an undivided family as, known to the Hindu Law and that after a partition had taken place in a Hindu Joint family there cannot be a 'family' consisting of the father and his divided minor sons for the purpose of fixation of ceiling under the Act. The fact that the definition of "family" contained in Section 2(10) does not treat the major sons of a person as members of his family is a clear pointer that an undivided Hindu Family was not in the contemplation of the Legislature when it enacted the said definition Section. Similarly, the provision contained in sub-section (3)(a) of section 4 that in calculating the extent of land held by a member of a family or by an individual person, the share,of the member of the family or of the individual person in the land held by an undivided Hindu family shall be taken into account furnishes a conclusive indication that the "family" mentioned in the Act is wholly distinct and different from an 'undivided Hindu family'. The circumstance that a partition had taken place disrupting the joint family consisting of the appellant and his minor sons is. there fore, of no relevance in determining the total extent of the holding of the appellant in accordance with the provisions of Section 2(10) read with Section 4 of the Act. That is because, the Act has created a special statutory unit consisting of the persons satisfying the description contained in clause (10) of section 2 as constituting a "family" for the purpose of fixation of ceiling. The stress is only on the existence of the relationship mentioned in the section and unity of title or jointness of holding in relation to property are not essential elements for attracting applicability of the definition. Under the definition contained in Section 2(10), a person, the wife or husband of such person and his or her minor sons and unmarried daughters together constitute a "family".
16. Section 4(2) expressly provides that for the purpose of fixation of ceiling on the lands held individually by the members of a family or jointly by some or all of the members of such family shall be deemed to be held by the "family". The result is that the separate properties of the members constituting the statutory family are all to be treated as forming part of the holding of the 'family' for the purpose of determination of the ceiling area, Such being the position emerging from the provisions of Section 2(III) and Section 4(1)(2), the properties held by the minor sons of the appellant individually as well as the lands separately owned by Smt. Senbagevalli, wife of the appellant by virtue of the purchase effected by her with her Suridhanam amounts were all liable to be taken into account while computing the total extent of holding of the family of the appellant."
The Court further observed in para-18.
"18. xx xx xx xx
The purpose of Section 4(4) is to peg down the process of determination of ceiling area to the state of things that obtained on the 'appointed day' and it is in that context and for the purpose that the sub-section provides that in calculating the extent of land held by any person, any land which was transferred, by sale, gift or otherwise or partitioned by that person after the appointed day but before the commencement of the Act, shall be taken into account, as if such land had not been transferred or partitioned."
In almost identical circumstances, a Single Judge of this Court in Revanna Siddappa Hadri -v.- Assistant Commissioner, Indi came to a contrary conclusion and held that in view of prior partition, the minor son would be entitled to retain his share independently and so also the father. Each one of them was treated as a separate family. With respect, it does not lay down correct Law.
14. In view of the above, the ruling of this Court in Revanna Siddappa Hadri -v.- Asst. Commissioner, Indi 1977(2) KLJ at 187 ceases to be a binding authority.
15. Mr. Apparao, however, relied on the following observation in Syed Shah Naimatuall Hussaini -v.- Land Tribunal, Sedam & Another W.P. No. 18925 of 1984 DD. 4-3-1985:
"Further the Land Tribunal was in error in not allotting two separate shares to the two major sons of the petitioner since the Karnataka Land Reforms Act, 1961, does not make any distinction between the Hindu Law and Muslim Personal Law for the purpose of determining the surplus land under section 63 of the aforesaid Act. The word 'family' as defined under the aforesaid Act applies both to Hindu and Muslim families."
The above enunciation to the effect that the Act does not make any distinction between Hindu Law and Muslim Law, is in consonance with the above referred decisions of the Supreme Court. But, Mr. Apparao, contended that the judgment further lays down, that "major son is entitled to separate share". In my view, the Court has not decided that issue, it was remanded to Tribunal for fresh disposal of the declaration, in accordance with the provisions of the Act and the Rules.
16. It is contended that under Section 63(4) notional partition is permissible to ascertain the share of a member. This sub-Section, while providing for a method to calculate the extent of holding, is applicable to two classes:-
(i) Person who is not a member of Family, but is a member of joint family.
(ii) Person who is a member of family, is also, a member of joint family.
An unmarried major son would come in the first category; a father and few others would come in the second category.
17. In calculating the extent of land held by an unmarried major son, his share as a member in joint family shall be taken into account and aggregated with the lands held by him separately and for this purpose, his share in the Joint Family has to be ascertained by notional partition; this will be added to his personal properties and the aggregate of both will be his holding, the permissible maximum.
Similarly, in the, case of father for calculating total exhaust of his holding his separate property and what he would get as his share, in the joint family will be aggregate.
18. If a minor son is an orphan, his case comes under clause (d) his total extent shall be the aggregate of his personal property plus what he gets as a member of joint family. But, if he is a member of 'Family' coming under clause (a) the family as one entity is entitled to ten Units, whatever may be the share of a minor son. He loses his independent status, for purposes of ceiling and his status gets merged with that of his parents. Notional partition is impermissible.
Thus, it will be seen that notional partition is permitted only for the purpose of aggregating the total holding of a person where it becomes necessary to calculate the extent of his holding. This again is applicable in respect of those who file a declaration and those who are liable to file a declaration. Notional partition is impermissible, to carve out a 'share' in favour of major son, from the 'Surplus' land in the declaration of the father. To carve out such a share and permit each non-declarant to retain the 'ceiling' extent would defeat the very object and purpose of legislation. In a proceeding to determine the'ceiling' extent of a person, who has filed declaration; the Tribunal cannot pass a decree for partition. Sub-clause (4) like several other provisions is applicable to all persons, irrespective of community and personal law. Joint family conceived therein is the joint family as defined in the Act, which includes Hindu Joint Family and other cases also. A major son, who is not a declarant himself, cannot request the Tribunal to permit him to retain 54 acres or 10 units; clause (4) does not confer such a right.
19. Though the policy, underlying the various enactments of different states is one and the same, the definitions and ceiling limit varies. For example: In the Haryana Act, the ceiling provisions contain "the Primary Unit of the family" "Permissible area" and "separate unit" and the word, separate unit is defined to mean adult son living with his parents and in case of his death his widow and children. In Karnataka Land Reforms Act, no separate provision is made for major sons or adult sons, who are living with their parents or any one of them. If they are separated and own independent holdings and file declarations, it has to be dealt with under the Act. But, if they are not so separated and have not filed any declaration, whether they are entitled to claim the holding upto the ceiling limit? Should the Tribunal embark on their rights to hold the land, on notional partition, or their rights as Sper Successionis or presumptive rights?
20. The opening words in Section 63 "No person ....be entitled to hold as owner, landlord, tenant....." refers to an individual, who on the date of the commencement of the Act, i.e., 1-3-1974, was holding the land in one or other capacity the owner "To hold" has not been defined; in State of Andhra Pradesh -v.- Mohd. Ashrafuddin, the Supreme Court, with reference to the definition of "holding" in Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, held that it includes an intending purchaser, who is in possession of land, in part-performance of the contract, but, in the K.L.R. Act, similar provision is not found. However, dealing with the expression 'held', the Court observed thus:
"8. The word 'held' is not defined in the Act. We have, therefore, to go by the dictionary meaning of the term. According to Oxford Dictionary 'held' means: to possess; to be the owner or holder or tenant of; keep possession off; occupy. Thus, 'held' connotes both ownership as well as possession. And in the context of the definition it is not possible to interpret the term 'held' only in the sense of possession."
21. Analysing the words employed in Section 63, only four categories of persons can 'hold' the land. They are owners, landlords, tenants and mortgagees, with or with-out possession. It does include persons, who are likely to hold, at some uncertain future date. It refers to persons who are holding the land, in one or other capacities on 1-3-1974. Section 64 refers to future acquisition of land. Among the various modes of acquisition provided therein, acquisition by bequest, inheritance and partition is also provided, if such acquisition takes effect after the coming into force of the Amended Act, i.e., 1-3-1974.
22. Section 66, makes is obligatory on "persons who hold" the lands as stated therein on 1-3-1974, to file declaration before 31-12-1974. If a major son, of whatever community holds the lands, as stated in Section 66, he has to file a declaration. The provisions of Sections 67 to 76 are applicable for surrender of surplus land and vesting in the State. Section 65A also envisages a future situation, whereby, the classified land is converted as a result of irrigation source constructed by State Government, Since the statute covers the future acquisition and likely alteration of nature of land, would it be permissible to conceive an individual as a "family" by taking into account of his likelihood or chance of getting, a share, in the lands, either by partition or succession by imagining a share on the theory of notional partition ? Section 66 prescribes the dates for filing declaration and the procedure to be adopted. In several cases, the declaration, as in the instant case, is not filed by the major son; in such a situation, should the Land Tribunal, by fiction, calculate the holding of a 'major son' or any other person, who is not a member of family like declarant's parents or any one of them, widowed or divorced sister etc , who in their own right may be entitled to file declaration, treating themselves as "family" ?
23.In State of Maharashtra -v.- Narayana Rao, the contention was that ;
"For purposes of quantifying the interest in the joint family property that devolved on the heirs of a deceased male Hindu required that it should be assumed that a notional partition had taken place in the family immediately prior to the death of the deceased, the female heirs of such deceased Hindu became divided or separated from the family on the death of the deceased. In order to examine the validity of this submission it is necessary to refer to some of the relevant features of a Hindu Undivided family and to consider the effect of the provisions of Section 6 of the Act on such family."
The Court observed that :
"9. xxx xxx xxx
A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under Section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result, does not follow from the language of the statute. In such an event, she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members the members thereof do constitute a family. That might also be the case of families of persona who are not Hindus. In the instant case the theory that there was a family settlement is not pressed before us. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed.
10. We have already seen that 'person' includes a 'family' for purpose, of the Ceiling Act and the members of a family cannot hold more than one unit of ceiling area. The respondents cannot derive any assistance from the proviso to Section 6 of the Ceiling Act. Section 6 of the Ceiling Act provided that where a family consisted of members which exceeded five in number the family would be entitled to hold land exceeding the ceiling area to the extent of one-sixth of the ceiling area for each member in excess of five, subject to the condition that the total holding did not exceed twice the ceiling area. The proviso to Section 6 of the Ceiling Act provided that for the purposes of increasing the holding of the family in excess of the ceiling areas stated above if any member thereof held any land separately he would not be regarded as a member of the family for that purpose. This proviso was intended to qualify what was stated in Section 6 and was limited in its operation, it was confined to the purpose of increasing the ceiling area as provided in Section 6 of the Ceiling Act. It cannot be construed as laying down that wherever a member of a family had his separate property he or she should be regarded as not a member of a family and that he or she would be entitled to a separate unit of ceiling area."
The above observation, puts an end to the doubt that by fiction or notional partition, the persons who have not filed declaration, who may constitute a family, or may not would not be entitled to claim separate unit of ceiling area i.e., ten units.
24. For the aforesaid reasons my conclusions are :
(i) The extent of holding of any person, who files a declaration, must be determined as on the appointed day (1-3-1974) ;
(ii) In determining the holding to find out whether the declarant exceeds the ceiling limit or not, it is not permissible to resort to notional partition, amongst the persons, who constitute "Family", as defined in the Act ;
(iii) Provisions of Land Reforms Act apply to all persons, irrespective of their respective personal law.
(iv) Notional partition is permissible only to aggregate the holding of a declarant, who being a member of Joint Family, is or is not a member of Family as per Section 63(4) of the K.L.R. Act.
25. Reverting back to the facts of the case, the notional extent allotted to the major son, is not challenged by the State; since it has become final, it is not possible to disturb that finding. Accepting the factual position, as found by the Tribunal, petitioner would, be entitled to additional four units, over and above, his ten Units, as the family consists of seven members. Hence, in his own right, he would be entitled to retain 54 acres plus 20 acres 16 guntas, i.e., 74 acres and 16 guntas. Surplus would be 12 acres 21 guntas. As this conclusion is possible on the existing and accepted material, it is needless to remand this matter, only for this purpose of passing final orders.
26. Hence, I make the following Order :
(i) Writ petition is partly allowed; it is declared that the declarant petitioner is entitled to four additional Units and be is, there-fore, entitled to retain 74 acres and 16 guntas in his own right.
(ii) The extent of surplus, which he has to surrender is 12 acres 21 guntas only. The Tribunal and authorities under the Act will take further proceedings in this regard, as per law.