Holding

A female heir who inherits under Section 6 remains a member of the joint Hindu family, and the family as a whole is entitled to only one unit of ceiling area.

Summary

The Supreme Court examined whether a wife and mother who inherited a share in a joint Hindu family property under Section 6 of the Hindu Succession Act ceased to be members of the family for purposes of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The Court held that the legal fiction in Section 6 only fixes the female heir's share and does not automatically separate her from the family unless she voluntarily partitions. Consequently, the family continued to exist as a joint Hindu family and could not claim more than one unit of ceiling area as a single "person" under the Ceiling Act. The Court rejected the High Court's view that each female member was entitled to a separate unit of ceiling area. It also clarified that the proviso to Section 6 of the Ceiling Act does not disqualify members holding separate land from being counted as family members for all purposes. The appeal was allowed, setting aside the High Court judgment and affirming the Sub‑Divisional Officer’s order that only one unit of ceiling land could be retained.

Issues considered

Whether a female heir who inherits a share under Section 6 of the Hindu Succession Act ceases to be a member of the joint Hindu family for the purpose of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act.
Whether the proviso to Section 6 of the Ceiling Act disqualifies such female members from claiming a separate unit of ceiling area.
Interpretation of ‘person’ and ‘family’ under Sections 2(11) and 2(22) of the Ceiling Act in relation to joint family holdings.

Legislation cited

Hindu Succession Act, 1956s. 6, s. Explanation I
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961s. 10(1), s. 2(11), s. 2(22), s. 6

Subjects

Hindu undivided familyjoint familyagricultural land ceilingSection 6 Hindu Succession Actfamily settlementperson definitionsurplus land

Judgment

\.

A
STATE OP MAHARASHTRA

v.

NARAYAN RAO SHAM RAO DESHMUKH & ORS~
B
March 19, 1985

[0. CHINNAPPA REDDY, E.S. VENKATARAMIAH AND R.B. MISRA,~].]
c Maharathtra Agricultural Lands (Ceiling on Holdings} Act, 1961,
Sections 2( 11) 2(22) and 6-Scope o/.-Whether a female whiJ inherits a~
share in a joint family property by.rea:ion of the death of a .male member of~
the family automatically -ceases to a member of the joint family by virt_ue of the 1
proviso to Section 6 of the Land Ceiling Act read with explanation I thereto,
entitling her to a sepa1ate unit-Features- of Hindu Undivided Family and· J
D coparcenary explained. · :i

. Sham Rao Bhagwant Rao Deshmukh, his son Narayan Rao_ Sham Rao
Deshmukh, his wife Suloc.hanabai and his mother Gangabai alias T~ibai were
1
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 viUages. Shafi Rao died on June 15, 1957 after the coming,,.
E into force: of the Hindu S:uccession 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 bein& the share that
would have been allotted to· him if a partition of the family property had takeri '
place immediately before his death irrespective of whether he- was entitled· to
claim partition or not. According to the Jaw governing the above family which 1
F was governed by the Bombay School under which the mother also was. entitled 'I
a share at a partition between her husband and her son equal to that of her
son one-third shire in the family property could have been allotted to the
share of Shafi· Rao immediately before his death had a partition taken· place.
That one-third share devolved in equal shares On Narayan RaO, Siit0ch3.nab3J ·
and Gangabai alias Taibai each inheriting one-ninth share of- the fanlily pf<»J
perty. They, however, continued to live together enjoying the family properties
as before. As required by the Maharashtra Agricultural Ceiling Act which
G
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. Saoner stating that they held in all 305.49 acres of agricultural land
and that under a family arrangeplent entered into on March 30, 1957 they w~re~
holdil'lg the· lands in distinct and separate shares, Narayan Rao holding' 1 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
H
which a person in that area could hold after the Ceiling Act came into force.
MAHARASHTRA v. N. R. S, RAO, 359
_The Sub•Divisional Officer after enquiry held (i) that the alleged family l;ettle- ,A
~m~t was not true ; (ii) Narayan Rao, his mothe.r 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, there~
fore, hold agricultural land in excess of one unit of the Ceiling area ; (iv)- the
'f~ily 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 actes Of land in contravention of Section 10(1) of the Ceiling Act, it could !B
·retain oi;IIY 51.16 acres ; ·and (vi) the remaining extent of land measuring in all
· 222;32 acres must be. declared as surPius land which had to be surrendered
· under the Ceiling Act. · '

_ ' Aggrieved by the decision of the Sub· Divisional Officer, Narayan Rao,
.,hi~ mother.and grand·mother filed an appeal before the Maharashtra· Revenue
" Tribunal questioning the 'correctness of the said decision and that appeal was
· dismissed. A.gainst the dec~ion of the Tribunal they filed a petition before
r the High Court of Bombay under Article 227 of the.. Constitution. The High
Cou.rt accepted th~ 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
: ·riuniiy ccitsed to' hold the family property as members of a family and, there·
fo~e. each of·them was entitled to be allowed to ret3.in one unit of the ·ceiling
afeii Under the Ceiling Act, allowed :the writ petition and directed rhe Sub·
·:piVisional Officer to pass fresh order in the light of its juOgment. Hence the
State appeal by special leave.

Allowing the appeal, the Court E
HELD : 1.1. .The Proviso to Section 6 of the Hindu Succession Act,
1956 caniiot .be construed as laying down that where\_'er a member of a faniily
.• had his separate property he or she s.hould be regarded as not a member of a
, f,,tnily. [370Ei.

·1.2 A legal fiction should no doubt ordinarily, be. carried 'to it~ logical F
,·end to carry out the purposes for which it is epacted but it ·cannot be· carried
beyond that. [369q

It i"s no doubt true that the right. of a femal~· hili .tO the interest inlierited
by her in the family property gets fixed on the death' of a male inember under
~, .s'ection 6 of the Hindu .Succession Act but. she c~nnot. be treated as having G
ceased to be a member of the family without.'he'r volition.as ,otherwise it will
- .ICad to strange results which could not have beeO 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 hu~band when one of her sOns. dies leaving her behind
, as_his heir.. Such a result does not foIIOw from the language of the stat-Ute.
In such ari event she should have 'the option t~ sepafate herself or to continue H
fll the fatnili •! l9n~ ".~ ~h~ wishe1 ~! l\~ l"~l"b~r though 1\1~ h~ ~cquired ~TI
360 SUPREME COURT REPORTS [1985] 3 s.c.R.
A indefeasible interest in a specific share of the family propertY Which WoUtd.
remain undiminished. whatever may be the subsequent changes in the · composi-
tion 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]

a
t.3 Since "person" 3.s defined in Section 2(22) of the Act iii.eludes a
·C ''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]

D 2 1 The joint and undivided family is the normal condition of a Hindu
Society. An U!ldivided 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.
[36SF]

E 2.2 A Hindu coparcenary is, however, a narrower body than ..the joint
family. Only nales who acquire by birth an interest in the joint or coparcenary
property can.be ffiembers of the coparcenary or coparceners. A male member
of a joint family and his sons, grandsons and great grandsons constitµte ~
coparcenary. A coparcener acquires right in the coparcenary property 'by
· birth but his right can be definitely ascertained only when a partition t:i~e8
place. When the family is joint, the extent of the share of a coparcener · c8.n"
not be definitely predicated since it is always capable of fluctuating. It incre"
ases by the death Qf a COpl\l"cep~r ~Pd dm~~.s~i OP th~ birth of a coparcenef.
. . . [366D:E1

2.3 ·A joint family, however, may consist of female members. It may
cOnsisf of.a male member, his wife, his mother and his unmarried daughters.
cThe property of a joint family does not cease to belong to the family !"•(Cly
G because there is only a single male member in the family. A joint family i».ay
consist of a single male member and hiswife and daughters. It is not necess&ry
that there should be two male members to constitute a joint family. [366F:-O),;:

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:i
H /•laren<franath v. Commi ~sioner of Wealth Tax, Andhra Pradesh, Hyd~rabad., '
\1969j 3 s,<;:.R. sst referr~d t9·.
MAHARASHTRA v. N. R s. RAO (Venkataramiah, J.) 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 mem-
bers· or the coparcenary, in a coparcenary governed by the Dayabhaga law,
there is no unity or ownership of coparcenary property with the members there-
of. Every coparcener takes a defined share in the property and he is the owner
of .tl"J,at 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 B
being treated as belonging to a family in the Dayabhaga ~w. ~
• [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 inherlts an
~ interest in the joint family property under Section 6 of the Succession Act files C
....._, 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 1 to Section 6 of
the Succession Act, and not 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
iriterest in the family property devolves on her without her volition to separate
herself from the family. [367C ; 369A·D] IP

- Garupad Khandappa Magdum v. Hirabai Khandappa Magdum &: Ors.,
[1978] 3 S.C.R. 761 ; explained.

C1vn:. Al'l'ELLATE JURISDICTION; Civil Appeal No. 1441 of 1971
Prom the Judgment & Order dated 26.4.1970 of the Bombay E
High Court in Special Civil Applicatioµ No, 16,/1967,
f.~. .p~sqf an~ Af.N. fihro/J for thl' Ap)lellant,

V·~· Lql(t a.n\14.q, ~alnqpqrkhi for t4~ Jl~spimde!l!~.

Th~ J11d~111ent of the ~oqrt was delivered by

VSNKATARAMIR, J. Sha111 Rao !hagwant Rao Deshmukh and
his son, Narayan Rao were members of a joint Hindu family gover·
ned by the Mitakshara School of law. His wife Sulochanabai and
his mother Gangabai alias Tribal were also the members of that '
. family. The said family owned extensive properties which included
G
agricultural lands situated in fourteen villages. Sham Rao died on
June.15, 1957 after the coming into force of the Hindu Succession
Act, 1926 (hereinafter referred to as the Act') and on his death his
interest in the coparcenary property devolved on his son, wife and
JUOtn~r i!' e~ua\ spare~ \IP\11'f sectio11 (i Qf tjl~ A~~. ~u9h.,nteres\
362 SUPREME COURT.REPORTS 11985] 3 S.C.R. '
A . 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 gover-
ned 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
B 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, Su!ochanabai and Gangabai alias Taibai
each inheriting one-ninth share of the family property. They, how-
c ever, continued to live together enjoying the family properties as·~
before. On January 26, J962 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 beforethe Sub-Divisional
D 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
sham 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
E hold after the Ceiling A.ct 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 hole! agricultural land in excess of one unit of the ceiling area.
F The .Sub-Divisional Officer came to the conclusion that the total area ,.A
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 a,res of land out of the said 304.57 acres on the appointed 4ay
. and as the family had alienated after August 4, 1959 about .44 acrea
cif land in contravention of Section 10(1) of the Ceiling Act, it could
retain only'5Li6 acres. The remaining extent of land measuring ·in
H all 222.:2 acres was declared as surplus land which bad. to be sur,
f
rendered under the <;:eilin Act. A ¥~ieved by the decision of. :the
t
. MAHARASHTRA v.. N. R. s. RAO Wenkataramiah, J.) . :363

Sub-Divisional' Officer, Narayan Rao, his mother and grandmother A
filed an appeal before the Maharashtra Revenue Tribunal qµestioning
the ·correctn.ess of the said decision and that appeal was dismissed.
Against the decision of the Trib.unal _they filed a petition before the
High Court of Bum bay u~def'Article ';!27 of the Constitution. Before
the High Co.url the ca;e of family settlement. was not pressed but it
>-· ·was cbntended that sir.ce the'one-third interest in the family property B
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 mem-
bers 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.
c
Th(' 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 tbe land befonging
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
D
entitled to retain ro; 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
, d_irected 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. E

In. order to examine the correctness of the contentions urged
in this appeal, it is necessary to refer briefly first to the relevant pro-
visions 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 F
came into force on January 26, 1962 as per notification issued by the
State Government under Section l (3) thereof. The Ceiling Act as its
long title indicates was enacted for the purpose of imposing a maxi-
mum 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 rnch ceiling and for making provisions regarding G
matiers 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. TM 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 ~s follows ! :·· 1 •
364 SUPREME COURT REPORTS (1985) 3 S.C.R.

A "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 th~t landless
persons are given land for personal cultivation),on the com-
mencement of this Act there shall be imposed to the extent,
and in the manner hereinafter provided, a maximum limit
B (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
c 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
D 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 perscribed by Section 5 of the Ceiling
Act. Section 2(22) of the Ceiling Act defined the expression 'person'
E as including a family. Section 2(11) of the Ceiling Act read as
follows:

"2(11) "family" includes, a f!indu 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 pos~essio11
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
G member thereof and also a divorced and dependent daugheer.

The Ceiling Act was applicable not only to Hindus governed by the
Mitakshara Hindu Law which recognised an unvided Hindu family
but to all other communities amongst whom the concept of an
undivided family owning joint property in which the members of the
µndivided family ba\I qnmiunity IJf ipterr~st 'l"~s \ll'~Pl''l"P· T~~

•
MAHARASHTRA v. N. R. s. RAo'(Venkataramiah, J.) 3/iS
Ceiling Act intended that even amongstisuch non-Hindu communities, A
a family.should not be permitted to hold agriunltural land in excess
of the ceiling.· It is with this object a wider definition of the expression
'family' was given in section 2(1 l) 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 i11 section
2 (20) of the Ceiling Act. In the case of families other than a Hindu B
undivided famly, a father, mother, spouse, brother, son, granson
or dependent sister or dughter 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 oft.he family.
c
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 D
counsel for the respeondents 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 necesary to refer to some
of the relevant features of a Hindu undivided family and to consider
the effect of the provisions ~f 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 joint a
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
-is observed thus:.
. .

"26( It is evident that there can be no limit to the nuniber
of persons of whom a Hindu joint family consists, or to
the remoteness of their descent from the common ancestor,
. and consequently tp the <;lis(ance of.their relatfonship from "JI
366 SUPREME COURT REPORTS [1985] 3 S.C.R.
A each other. But the Hindu coparcenary is a much narrower
body ........... , ........... For, covarcenary in the Mitakshara
Law is not identical with coparcenary ·as understood in
English law: when a mamber 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
1B coparceners, but goes to his or her own heirs". When we
speak ofca .Hindu joint family as constituting a coparcenary
we refer not to the entire number of persons who can trace
descent from a cOmmon ahcestor, and amongast 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 propery, 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 pos<essing only inferior rights such as
that of maintenance, which however tend to diminish as the
nD 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 meinbers of the coparcenary or cop-
arceners. A male member of a joint family and his sons, grandsons
-E 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 cannot be
definitely predicated since it is always capable of fluctuating. It
increases by the dea01 of a coparcener and decreases on the birth of
F
a coparcener. A joint family, however, may consist of female mem-
bers. 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. b.elong to the family merely because there is only a single male
member in the family. (See Gow Ii Buddanna v. Commissioner of Inco-
me-tax, Uysore. Ban.galore(') and Sitabai & Anr. v Ram Chandra).(')
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•
------------
. (I) (1966] 3 S,C.R. 224,
,, If m [t 97012:s.c.R. 1.
{

iJA!IAIUSHtRA v. N. R; s: IUO (Ve11kataramiah, i.) 36~.
11er of Weairh Tax, Andhra Pradesh, Hyderabad).(1) 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 Dayabhag1 Jaw, there.
is no .unity of ownership of coparcenary property with the members
htereof. Every coparcener takes a defined share in .the property and
the property and he is the owner of that share. But there is, however, B
unity of possession. Th.e share does not fiuctuale by births and
deaths. Thus it is seen that' the recognition of the right to a definite
share does not miiitate against the owners. of the property. being
treated.as belonging to a family.in the Dayabhaga law.

c.
We have earlier seen that females can be the members. of a
Hindu joint family. The question now is whether females who .ii1her-
its a share in a joint family property by reason of the de.ath of
a member of the family ceases to be a member of th.e family. It was
very forcefully pressed upon us by the .learned counsel for the respon-
dents relying upon the decision of this Court in Gurupad Khandapya
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 wa> 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 decisison, E
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 a'nd three daughters after the coming into
~force of the Act. Hirabai filed a suit .for partition and separate
F
possession of 7/24th share in the joint family property on the basis
of section 6 of the Act. She claimed that if a partitio.n had taken
place between her husband and her two sons ill]med°iately before
the death of her husband Khandappa, she, her husband .and. two
sons·would have each been allotted a one-fourth sharein· the family
proporty and on the death of her husband the one,fourth share. G
which would have been allotted.in his favour had.devolved in. equal
;bares 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
-------·------
(I) ]1969] 3 S.C.ll.'882.
(2) [1978! 3 S.C.R. 761. . '. H.
'A notional partition and . l /24th share (which was one-sixth of the
one-fourth share of her husband) i.e. in all 7/24th share. It was
contended on behalf of the contesting defendant that she could
net get the one-fourth share since actually no. partition had taken
place. Chandrachud, CJ rejected the said contention with the follo-
wing observations at p. 768 :
B
"In order tci ascertain the sh~re 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 c9parcenary property. For, by doing
that alone can one determine the extent of the claimant's
c 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
D to be'assumed is that a partition had iu fact taken place
between the deceased and his caparceners inirnediately
before his death. That assumption, once made, is irrevoca-
ble. In other words, the assumption having been made once
·for the purpose of ascer.taining~the share of the deceased in
the coparcenary property, one cannot go back on that
E 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 pi ocess of ascertainm_ent of the ultimate
share of the heirs, through all its stages. To make the
assumption at the initial stage for the limited purpose of
F
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
"G heirs must be ascertained on the basis that they had sepa-
rated 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
H concrete reality, something that cannot be recalled just as
.I l.!AMARASHTRA v. k ,jt, ii, RAO (tlenkatiramlah, 1.)

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 bis or her share in the ,
• interest which the deceased had in the coparccnary property ·
at the time of his death, in adilition to the share which he
· or she received or must be deemed to have received in the
• B
• notional partition."

, We have carefully considered the above decision and we feel that
this case·has to be ircated 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 c
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 notion-
ally allotted to her, as stated in Explanation l to Section 6 of the
Act. But it cannot be an authority for the proposition that she
i'
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 D
without her volition to separate herself from the family.
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 E
canQot 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 Paf!iament 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 F
·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.
ln such an event she should have the option to scparte herself
or to continue in the family as long as she wishes as its member
• though she has acquired an indefeasible interest in a spccifie share G
of the family property which would remain undiminished whatever
may be the subsequent changes in the composiiion of the member-
ship 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, H
•
it9SSl ~ s.c.lt.
which recognises unity of possession but not community of interest in
the family properties amongst its memb,rs, 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
B. 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.
c We have alt:eady 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
D, 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
E the family. in excess of the ceiling area as stated above if any member
thereof held any land separtely he would not be regarded as a mem-
ber 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 Cei,ling 'Act. It cannot be construed
F as laying down that wherever a member of a family bad his separate
property )1e 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
G Rao the joint family of Narayan Rao, Sulochanabai and Gangabai
continued and that there was nothing to show that Narayan Rao,'
Sulochanabai and Gangabai separated in residence after tbe death'
of Sham· Rao erred in holding that each of them was entitled to a
separat~ unit of ceiling area in the circumstances of tbis case. Its .
construction of the proviso to Section 6 of the Ceiling Act is·also
H erroneous. Its conclusion that "even though, therefore, ordinarily
a pe~son fuay be a ·member of a Hindu joint family for the purpose
MAt!ARASllfRA v. N. R. S. RAO (Yenicataramlah, i.) 37i
of the Ceiling Act, he would ;not be h~ld to be. a member if he A
holds land separately" for all purposes is agaill 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 toae-
ther entitled to retain only one unit of c~iling area .. In the result the
judament of the Hiih Court is set aside and the order passed by tho
Sub-Divisional Officer wh!ch . was affirmed by the Tribunal is
rCitored.

For the foregoing reasons the appeal is accordingly allowed.
There shall be no order as to costs. 'c

S. R. Appeal a/lowed

•
,)

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