Judgment

VENKATARAMAIAH, J.:- 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