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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: NARAYAN RAO SHAM RAO DESHMUKH & ORS.

DATE OF JUDGMENT19/03/1985

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) REDDY, O. CHINNAPPA (J) MISRA, R.B. (J)

CITATION:  1985 AIR  716            1985 SCR  (3) 358  1985 SCC  (2) 321        1985 SCALE  (1)601

ACT:      Maharashtra Agricultural  Lands (Ceiling  on  Holdings) Act, 1961,  Sections 2(11)  2(22) and  6-Scope of.-Whether a female who  inherits a  share in  a joint family property by reason  of  the  death  of  a  male  member  of  the  family automatically ceases  to a  member of  the joint  family  by virtue of  the proviso  to Section 6 of the Land Ceiling Act read with explanation 1 thereto, entitling her to a separate unit-Features of  Hindu  Undivided  Family  and  coparcenary explained.

HEADNOTE:      Sham Rao  Bhagwant Rao  Deshmukh, his  son Narayan  Rao Sham Rao  Deshmukh, his  wife Sulochanabai  and  his  mother Gangabai alias  Taibai were  members of a joint Hindu Family governed by  the Mitakshara  School of  Law. The said family owned extensive  property which  included agricultural lands situated in  fourteen villages.  Sham Rao  died on  June 15, 1957 after  the coming  into force  of the  Hindu Succession Act, 1956,  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  Ceiling 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  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. As required by the Maharashtra Agricultural  Ceiling Act which came into effect on January  26, 1962,  Narayan Rao filed a declaration on be half of  himself, his mother, and his grandmother before the Sub-Divisional Officer.  Soqoner stating  that they  held in all 305.49  acres of  agricultural land  and  that  under  a

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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. 359 The Sub-Divisional  Officer after  enquiry held (i) that the alleged family  settlement was  not true;  (ii) Narayan Rao, his mother  and his  grand-mother were  joint in  estate and constituted a  family within  the meaning of that expression as defined  in Section  2(11) of  the Ceiling Act; (iii) the family could  not,  therefore,  hold  agricultural  land  in excess of  one unit of the Ceiling area; (iv) the family was entitled to  96 acres  of land only out of 304.57 acres held by it  on the appointed day; (v) as the family had alienated after August 4, 1959 about 44 acres of land in contravention of Section  10(1) of  the Ceiling  Act, it could retain only 51.16 acres; and (vi) the remaining extent of land measuring in all  222.32 acres  must be 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 grand-mother 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. The High Court accepted the contention 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 that  is his  wife, mother and  son, the  surviving members of the family ceased to hold  the family  property as  members of  a family  and, there- fore,  each of  them was  entitled to  be allowed  to retain one  unit of  the ceiling area under the Ceiling Act, allowed the  writ petition  and directed  the Sub Divisional Officer to  pass fresh  order in  the light of its judgment. Hence the State appeal by special leave.      Allowing the appeal, the Court ^        HELD:  1.1 The  Proving to  Section 6  of  the  Hindu Succession Act, 1956 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. [370E]      1.2 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. [369C]      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 Hindu Succession  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.  Otherwise 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

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though she has acquired an 360 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. [369C-F]      In the instant case, the theory that there was a family settlement not being pressed and there being no action taken by either of the two females concerned in the case to become divided  from   the  remaining   members  of   the   family, 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. [369H; 370A]      1.3 Since a "person" as defined in Section 2(22) of the Act includes  a "family"  as defined  in Section  2(11)  for purposes of  the Ceiling Act, the members of a family cannot hold  more   than  one   unit  of   ceiling  area.   In  the circumstances of  the case, here, Narayana Rao, Sulochanabai and Gangabai  alias Taibai  were together entitled to retain only one  unit of  the ceiling  area as  held  by  the  Sub- Divisional Officer, which was affirmed by the Tribunal,                                                 [364E; 371B]      21  The  joint  and  undivided  family  is  the  normal condition of  a Hindu  Society. An undivided Hindu family is ordinarily joint  not only in estate but in food and worship but it is not necessary that a joint family should own joint family property. There can be a joint family without a joint family property. [365F]      2.2 A  Hindu coparcenary  is, however,  a narrower body than the  joint family.  Only males  who acquire by birth an interest in the joint or coparcenary property can be members of the  coparcenary or  coparceners.A male member of a joint family  and   his  sons,   grandsons  and   great  grandsons constitute a  coparcenary.A coparcener acquires right in the coparcenary  property   by  birth   but  his  right  can  be definitely ascertained  only when  a partition  takes place. When the  family is  joint, the  extent of  the share  of  a coparcener can  not be  definitely predicated  since  it  is always capable  of fluctuating. It increases by the death of a coparcener and decreases ON the birth of a coparcener,                                                     [366D-E]      2.3 A  joint family,  however, may  consist  of  female members. It  may consist  of a  male member,  his wife,  his mother and  his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is  only a  single male member in the family and joint family may  consist of a single male member and his wife and daughters. It is not necessary that there should be two male members to constitute a joint family. [366F-G]      Gowli Buddanna  v. Commissioner  of Income  Tax Mysore, Bangalore [1966]  3 S  C.R.  224;  Sitabai  &  Anr.  V.  Ram Chandra, [1970] 2 S.C.R l; N.V. Narendranath V. Commissioner of Wealth Tax, Andhra Pradesh, Hyderabad [1969] 3 S.C.R, 882 referred to. 361        2.4  While under  the Mitakshara  Hindu law  there is community of  ownership and  unity of  possession  of  joint family property  with all the members of the coparcenary, in a coparcenary  governed by  the Dayabhaga  law, there  is no unity or  ownership of coparcenary property with the members thereof. Every  coparcener takes  a  defined  share  in  the property and  he is  the owner  of that share. But there is,

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however, unity  or possession.  The share does not fluctuate by births  and deaths.  Thus it is seen that the recognition of the  right to  a definite share does not militate against the owners  of the  property being treated as belonging to a family in the Dayabhaga law.                                             [366G-H; 367A-B]      2.5 The  decision  of  the  Supreme  Court  in  Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum & Ors, [1978] 3 S.C.R. 761  has to  be  treated  as  an  authority  for  the proposition that  when  a  female  member  who  inherits  an interest in the joint family property under Section 6 of the Succession Act  files a  suit for  partition expressing  her willingness to go out of the family she would be entitled to get both  the interest she has inherited and the share which would have  been notionally  allotted to  her as  stated  in Explanation I to Section 6 of the Succession Act, and lot an authority for the proposition that she ceases to be a member of the  family on  the death  of a male member of the family whose interest  in  the  family  property  devolves  on  her without her  volition to  separate herself  from the family. [367C; 369A-D]      Garupad Khandappa  Magdum v. Hirabai Khandappa Magdum & Ors. [1978] 3 S.C.R. 761; explained.

JUDGMENT:      CIVIL, APPELLATE JURISDICTION; Civil Appeal NO. 1441 Of 1971      From the Judgment & Order dated 26.4.1970 Of the Bombay High Court in Special Civil Application No, 163/1967.      Y.S. Desai and M.N. Shroff for the Appellant,      U.R.Lalit and A.G. Ratnaparkhi for the Respondents,      The Judgment of the court was delivered by      VENKATARAMIH, 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 Tribai 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 June 15, 1957 after the coming  into  force  of  the  Hindu  Successions  Act,  1926 (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 362 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, how ever, 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

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mother  Sulochanabai  and  his  grandmother  Gangabai  alias Taibai before  the Sub-Divisional  Officer,  Saoner  stating that they  held in  all 305 49 acre 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  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(1  ])  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  after August 4,  1959 about  44 acres  of 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 363 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 retain 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.      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

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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 on land held in excess of such ceiling  and  for  making  provisions  regarding  a  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 364      "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 States.      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 herein after provided for surplus land."      The ceiling  areas 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.        The  Ceiling Act  was applicable  not only  to Hindus governed by  the Mitakshara  Hindu Law  which recognized  an undivided Hindu  family but to all other communities amongst whom  the  concept  of  an  undivided  family  owning  joint property in  which the  members of  the undivided family had community of interest was unknown. The 365 Ceiling  Act  intended  that  even  amongst  such  non-Hindu communities, a  family  should  not  be  permitted  to  hold agricultural land  in excess of the ceiling. It is with this object a  wider definition  of the  expression ’family’  was given in  section 2(11)  of the Ceiling Act as including not only a  Hindu undivided  family but other families too whose members could  belong to  any of  the classes  mentioned  in section 2  (20) of  the Ceiling Act. In the case of families other than  a Hindu  undivided  family,  a  father,  mother, spouse.  brother,  son,  grandson  or  dependent  sister  or

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daughter constituted a family and by virtue of section 2(21) were treated together as a person and in the case of a Hindu undivided family  every member  thereof  was  treated  as  a member of  the family.A divorced and dependent daughter also could be a member of the family.      The contention urged before us is that by reason of the death of  Sham Rao,  the family  became disrupted of divided and that  Narayan Rao, his mother and his grandmother ceased to be  members of a joint Hindu family. Elaborating the said contention the  learned counsel  for the  respondents herein argued that by virtue of the proviso to section 6 of the Act read  with   Explanation  I   thereto  which   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  become 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.      As observed in Mayne on Hindu Law and Usage (1953 Edn ) the joint  and undivided family is the normal condition of a Hindu society. An undivided Hindu family is ordinarily joint not only  in estate  but in  food and  worship but it is not necessary that  a  joint  family  should  own  joint  family property. There can be a joint family without a joint family property. At para 264 of the above treatise it a is observed thus:      "264. It  is evident  that there can be no limit to the      number  of   persons  of  whom  a  Hindu  joint  family      consists, or  to the  remoteness of  their descent from      the common  ancestor, and  consequently to the distance      of their relationship from 366      each  other.  But  the  Hindu  coparcenary  is  a  much      narrower  body..........   For,  coparcenary   in   the      Mitakshara Law  is not  identical with  coparcenary  as      understood in  English law:  when a  member or  a joint      family dies,  ’his right - accrues to the other members      by survivorship,  but if  a coparcener  dies his or her      right does  not accrue  to the  other  coparceners, but      goes to his or her own heirs". When we speak of a Hindu      joint family as constituting a coparcenary we refer not      to the  entire number  of persons who can trace descent      from a  common ancestor,  and amongst whom no partition      has ever  taken place;  we include  only  those  person      who, by virtue of relationship, have the right to enjoy      and hold  the joint  property, to  restrain the acts of      each other  in respect  of it,  to burden it with their      debts, and  at their pleasure to enforce its partition.      Outside  this  body,  there  is  a  fringe  of  persons      possessing  only   inferior  rights  such  as  that  of      maintenance, which  however tend  to  diminish  as  the      result of reforms in Hindu law by legislation."      A Hindu  coparcenary is,  however, a narrower body than the joint  family.  Only  males  who  acquire  by  birth  an interest in the joint or coparcenary property can be members of the  coparcenary or  coparceners.A male member of a joint family  and   his  sons,   grandsons  and   great  grandsons constitute a  coparcenary.A coparcener acquires right in the coparcenary  property   by  birth   but  his  right  can  be definitely ascertained  only when  a partition  takes place.

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When the  family is  joint, the  extent of  the share  of  a coparcener cannot  be  definitely  predicated  since  it  is always capable  of fluctuating. It increases by the death of a coparcener  and decreases  on the  birth of a coparcener.A joint family, however, may consist of female members. It may consist of  a male  member, his  wife, his  mother  and  his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male  member in  the family.  (See Gowli  Buddanna v. Commissioner of Income-tax, Mysore. Bangalore(l) and Sitabai & Anr.  v Ram  Chandra).(2) A  joint family may consist of a single male  member and  his wife  and daughters.  It is not necessary that there should be two male member to constitute a joint family. (See N. V, Narenderanath v. Commissio- (1) [1966] 3 S.C.R. 224. (2) [1970] 2 S.C.R. 1. 367 ner of  Wealth Tax,  Andhra  Pradesh,  Hyderabad).(l)  While under the   Mitakshara  Hindu  law  there  is  community  of ownership and  unity of  possession of joint family property with all  the members  of the  coparcenary, in a coparcenary governed  by  the  Dayabhaga  law,  there  is  no  unity  of ownership of  coparcenary property with the members thereof. Every coparcener  takes a  defined share in the property and the property  and he  is the  owner of that share. But there is,  however,  unity  of  possession.  The  share  does  not fluctuate by  births and  deaths. Thus  it is  seen that the recognition of  the right  to  a  definite  share  does  not militate against the owners of the property being treated as belonging to a family in the Dayabhaga law.      We have earlier seen that females can be the members of a Hindu  joint family.  The question  now is whether females who inherits a share in a joint family property by reason of the death of a member of the family ceases to be a member of the family.  It was  very forcefully  pressed upon us by the learned  counsel   for  the  respondents  relying  upon  the decision of  this  Court  in  Gurupad  Khandappa  Magdum  v. Hirabai Khandappa  Magdum  &  Ors.  (2)  that  there  was  a disruption of  the family  in question  on the death of Sham Rao as for the purpose of determining the interest inherited by Gangabai  alias Taibai  and Sulochanabai it was necessary to  assume  that  a  notional  partition  had  taken  place, immediately before  the death of Sham Rao and carried to its logical end  as observed  in the  above  decision,  Gangabai alias Taibai  and Sulochanabai  should  be  deemed  to  have become separated  from the  family. The  facts of  the above said case  were these. One Khandappa died leaving behind his wife Hirabai,  two sons and three daughters after the coming into force  of the  Act. Hirabai  filed a suit for partition and separate  possession of 7/24th share in the joint family property on  the basis  of section 6 of the Act. She claimed that if  a partition had taken place between her husband and her two  sons immediately  before the  death of  her husband Khandappa, she,  her husband  and two  sons would  have each been allotted  a one-fourth share in the family property and on the death of her husband the one fourth share which would have been  allotted in  his favour  had devolved  in;  equal shares on  her, her  two sons  and three daughters. Thus she claimed the one-fourth share which had to be allotted in her favour on the (1) [1969] 3 S.C.R. 882. (2) [1978] 3 S.C.R. 761. 368 national partition  and 1/24th share (which was one-sixth of the one-fourth  share of  her husband)  i e.  in all  7/24th

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share.  It   was  contended  on  behalf  of  the  contesting defendant that  she could not get the one-fourth share since actually no  partition  had  taken  place.  Chandrachud,  CJ rejected the said contention with the following observations at p. 768: .      "In order  to ascertain  the  share  of  heirs  in  the      property of  a deceased  coparcener it  is necessary in      the very  nature of things, and as the very first step,      to  ascertain   the  share   of  the  deceased  in  the      coparcenary property.  For, by doing that alone can one      determine  the   extent  of   the   claimant’s   share.      Explanation I  to  section  6  resorts  to  the  simple      expedient, undoubtedly  fictional, that the interest of      a Hindu  Mitakshara coparcener  "shall be deemed to be"      the share in the property that would have been allotted      to him  if a partition of that property had taken place      immediately  before   his  death.   What  is  therefore      required to  be assumed is that a partition had in fact      taken place  between the  deceased and  his caparceners      immediately before  his death.  That  assumption,  once      made, is  irrevocable. In  other words,  the assumption      having been  made once for the purpose of ascertaining,      the share  of the deceased in the coparcenary property,      one cannot go back on that assumption and ascertain the      share of  heirs of  the without  reference to  it.  The      assumption which the statute requires to be made that a      partition had  in fact  taken place  must permeate  the      entire process  of ascertainment  of the ultimate share      of the  heirs, through  all its  stages.  To  make  the      assumption at the initial stage for the limited purpose      of ascertaining  the share  of the deceased and then to      ignore it  for calculating  the quantum of the share of      the heirs  is truly  to  permit  one’s  imagination  to      boggle. All  the consequences  which flow  from a  real      partition have  to be logically worked out, which means      that the  share of the heirs must be ascertained on the      basis that  they had separated from one another and had      received a share in the partition which had taken place      during the  life time of the deceased. The allotment of      this share  is not a processual step devised merely for      the purpose  of working  out some  other conclusion. It      has to  be treated  and accepted as a concrete reality,      something that cannot be recalled just as 369      a share allotted to a coparcener in an actual partition      can-  not   generally  be   recalled.  The   inevitable      corollary of  this position  is that  the heir will get      his or her share in the interest which the deceased had      in the  coparcenary property  at the time of his death,      in addition  to the  share which  he or she received or      must be  deemed  to  have,  received  in  the  notional      partition."      We have  carefully considered the above decision and we feel that  this case  has to  be treated as an authority for the position  that when  a female  member  who  inherits  an interest in the joint family property under Section 6 of the Act files a suit for partition expressing her willingness to go out  of the  family she would be entitled to get both the interest she  has inherited  and the  share which  have been notionally allotted  to her,  as stated  in Explanation I to Section 6  of the Act. But it cannot be an authority for the proposition that  she ceases to be a member of the family on the death  of a  male member of the family whose interest in the family  property devolves on her without her volition to separate herself  from the  family.A legal fiction should no

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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 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, 370 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 persons 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.      We  have  already  seen  that  a  ’person’  includes  a ’family’ for  purposes 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 area as 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 High Court having held that after the death of Sham Rao the  joint  family  of  Narayan  Rao,  Sulochanabai  and Gangabai continued  and that  there was nothing to show that

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Narayan  Rao,   Sulochanabai  and   Gangabai  separated   in residence after  the death of Sham Rao erred in holding that each of them was entitled to a separate unit of ceiling area in the  circumstances of  this case. Its construction of the proviso to  Section 6  of the Ceiling Act is also erroneous. Its conclusion  that "even  though, therefore,  ordinarily a person may  be a  member of  a Hindu  joint family  for  the purpose 371 of the  Ceiling Act, he would "not be held to be a member if he  holds   land  separately"  for  all  purposes  is  again erroneous for the reasons already given above.      In the  circumstances of  the case,  we are of the view that Narayan  Rao, Sulochanabai  and Gangabai  alias  Taibai were together  entitled to  retain only  one unit of ceiling area. In  the result  the judgment  of the High Court is set aside and  the order  passed by  the Sub-Divisional  Officer which was affirmed by the Tribunal is restored.      For the  foregoing reasons  the appeal  is  accordingly allowed. There shall be no order as to costs. S. R.                                         Appeal allowed 372