1. The only point that arises for determination in this petition is regarding the number of members in the family falling under the definition of 'family unit' as given under Section 4 (1) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 as amended, (hereinafter called the New Act). The petitioner was taken as holding in all the lands measuring 84 acres and 23 gunthas. Pot Kharab of 4 acres was allowed so that the land for the purposes of determining the ceiling area was taken as 80 acres 23 gunthas On the basis of 6 members in the family he was allowed to retain 60 acres so that 15 acres 23 gunthas was declared as surplus.
2. The decision of the Surplus-Land Determination Tribunal was maintained by the Revenue Tribunal, but on a slightly different reasoning as will be evident later on. In challenging the decision of the Maharashtra Revenue Tribunal, the petitioner had taken two points, one about the members in the family unit and other about the pot kharab. It was contended that pot kharab was 18.97 acres. However, at the time of hearing the point regarding the pot kharab was not pressed.
3. As regards the members in the family unit, the petitioner has two wives, two minor daughters, one minor son on the date the return was filed and one more minor son was born to his wife on 2-2-1976. According to the petitioner, therefore, the family unit consisted of 7 persons inclusive of the child in the womb so that there were four minors, two spouses and the petitioner himself. The Surplus Land Determination Tribunal proceeded on the basis of the unit consisting of 6 persons disallowing the submission of the petitioner that the child born on 2-2-1976 ought to be counted as a member of the family unit. In deciding the appeal the contention of the petitioner that the child in the womb should be looked upon as a member of the family unit was accepted but the Tribunal has taken the unit as consisting of 6 members only because in the estimation of the Tribunal the two wives are to be counted as one member for the purposes of family unit. It appears that in appeal a specific objection was not raised on behalf of the State contending that the Surplus Land Determination Tribunal erred in counting the two wives but since the Tribunal has given the decision, that point also will have to be looked into.
4. Although in the judgment of the learned Tribunal dated 10th of June, 1976, the child born on 2-2-1976 has been looked upon as a member of the family unit in accepting the same a useful reference could be made to the decision in Raghunath v. State of Maharashtra 1975 Mh LJ 603 where a child bom in a joint family subsequent to the appointed day, namely, 26-1-1962 and therefore, the child who was in the womb on the appointed day was considered as a member of the joint family. The principle of this ruling applies to the amended Act also. That is because under the unamended Act the return was to be filed under Section 12 of the unamended act where the relevant period was 4th August, 1959, and the appointed day as per the definition in the definition in clause 2 (4) was 26th of January, 1962. Under the New Act the return is to be filed under the amended Section 12 and the relevant period is 26th day of September 1970 and the commencement date, namely 2-10-1975 as per the definition contained in Section 2, clause (6A). The finding given by the Revenue Tribunal for counting the son born on 2-2-1976 as a member of the family unit is, therefore, unassailable.
5. So far as the question regarding the two wives being counted as one, discussion could usefully be prefaced by the citation of the two clauses in Section 4 (1) which runs as follows;
'(4) (1) .....
Explanation: A 'family unit' means,--(a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughter if any; or
(b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or
Clause (c) may not be looked into. The learned Honorary Assistant Government Pleader Mr. Deshpande maintained that the Tribunal was right in looking upon the two wives as one because in the contemplation of the Act a person and his one spouse only are to be looked as members of the family unit. He invites my attention to the bracket covering the words 'or more than one spouse'. According to him, therefore, a spouse or more than one spouse are as if equated so that between themselves they can be looked upon as one member only. He contends that if the spouses who are more than one were to be counted as individual members, the object could, verywell have been achieved without the bracket. I am not inclined to accept this construction. In the first place, if more than one spouses were not to be counted as separate individual members, the effect could have been achieved without mentioning the words which occur in the bracket. Secondly, if we try to construe clause (a) without the bracket, there is a possibility of the clause, as it would then stand, including a minor son of a spouse brought to the family but born from some other husband having been looked upon as member of the family, and that too by reason of the express mentioning of it. In order to do away with such a possibility and in order to indicate that the minor son should be their son that is born of the person and hig spouse the bracket may well have been introduced.
6. Thirdly it can also be seen that under clause (b) of Section 4 (1) the surviving spouse or spouses and the minor eons and minor unmarried daughters are looked upon as members of the family. If the contention of Mr. Deshpande is correct we should have expected a similar bracket in clause (b) for covering the words 'or spouses'. Since such a bracket fs absent it seems more than one living spouses could be separately looked upon as members of the family unit under Section 4 (1) (b) of the Act.
7. This conclusion can be supported on another reasoning also. Under clause (1) of Section 4 land held by each member of the family unit has to be clubbed together in counting the holding of the family unit. Now if there are two spouses each owning land separately, nay in fact being the separate property of each such spouse, it cannot be suggested that since the spouses are one member, property of this or that spouse, or of both in certain proportion can alone be clubbed. The property of both would have to be reckoned for calculation thus illustrating that they are to be regarded as separate individual members.
8. In this context perhaps it would be useful to observe that the situation where more than one spouse are living would not be one of frequent occurrence among Hindus who are presumed to be majority of land holders in Maharashtra by reason of the Bombay Prevention of Hindu Bigamous Marriages Act (Act No. 25 of 1946) and the subsequent Act of 1955 (Act No. 25 of 1955). A Hindu would not be having 2 spouses by marriage after 1946, The application of the clause relating to two spouses could therefore only be tothose individual spouses who had married before 1946 and who could, therefore, be in a pretty advanced age. It does not appear that the Legislature could have intended to exclude such of those spouses who may now be living. The same would be the result among the landholders who by reason of their personal law are subjected to monogamy.
9. In the circumstances, I feel all living spouses are to be looked upon as individual members and the benefit of Section 6 of the Ceiling Act if any will have to be given to the family unit if thereby the number of members in the family exceeds five. In view of it the construction put by the Revenue Tribunal cannot at all be accepted. The petitioner must get the benefit of calculations on the basis of the 7 members in the family unit so that his surplus to be surrendered would be much less than what is at present estimated. If this ig so, he will have to give a fresh choice for surrendering the requisite land. Hence I pass the following orders.
10. The rule is made absolute. The order passed by the Maharashtra Revenue Tribunal On 10-6-1976 is quashed. The matter is remanded back to the Surplus Land Determination Tribunal for making calculations on the basis of 7 members of the family unit of the petitioner and for declaring the surplus on that basis. In the circumstances of the case, no order as to costs.
11. Case remanded.