1. This Writ Petition is filed by the landholders against the order passed by the Competent Authority and the Deputy Collector, Urban Land Ceiling Kolhapur, and the order dated 6-9-1979 passed by the Collector, Kolhapur, confirming the said order. It appears that all the three petitioners filed separate returns under the provisions of the Urban Land Ceiling jAct. Petitioner 2 is the father of petitioner 1. Petitioner 1 Kumari Ranjana has also a brother, petitioner 3 who is major. Petitioner 1 Kumar Ranjana has also a brother, petitioner 3, who is major. Petitioner 1 Kumari Ranjana is the major unmarried daughter of petitioner 2. According to the petitioners, as per the presumptive partition, petitioner 1 Ranjana has a 1/3rd share in the property viz. Vacant land owned by the joint family. If her 1/3rd share is allotted to her, then there is no land which could be declared as surplus. Thus, from the tenure of the petition, it is quite obvious that petitioner 1 Ranjana is claiming a share in the property on the basis of the presumptive or notional partition. In fact, there is no evidence on record to show that actual partition had taken place in the family. The authority has observed in its order that no evidence has been led to show that any part of the property has been transferred in the name of Kumari Ranjana. However, claiming a vested right in the property, which is an ancestral property, according to the petitioners, she had a separate share in the property and, ;therefore, her share should be excluded while counting the land belonging to the joint family.
2. This position is disputed by the respondents. According to the respondents, there is nothing on record to show that in fact any partition had taken place in the family, nor is there any evidence to show that any land was reserved for or allotted to Ranjana in lieu of her charge on the property for maintenance and marriage expenses. It is the case of the respondents that the question of presumptive partition will not arise since a daughter cannot get a right by birth in a ancestral property under the Mitakshara system of Hindu Law. Whereas a son is coparcener and has a right by birth in the property a daughter has no such right. According to the respondents under the Urban Land Ceiling Act, what is material is the question as to who is the holder of the land on the material date and admittedly on the material date the holder of the land was the father of petitioner 1. Since the property was never transferred in the name of Ranjana, the question as to whether she has a right to get share in the ancestral property is wholly irrelevant.
3. Shri Bhimrao Naik, the learned Counsel appearing for the petitioners, contended before us that the authorities below committed an error incoming to the conclusion that an unmarried major daughter has no right to claim a separate share in the property. According to him, an unmarried major daughter has a vested right to claim maintenance and marriage expenses from the joint family property and in lieu of the said right she is entitled to share in the property, which will have to be carved out on the basis on the presumptive partition. In support of this contention, Shri Naik has placed strong reliance upon the Division Bench decision of this Court in Rajaram Anna Yede v. Shashikala Bhagwan Yede 1976 Mah LJ 47. It is not possible for us to accept this contention of shri Naik. It cannot be disputed that the daughter's right to maintenance arises out of a mere relationship between the parties. The said right and the corresponding obligation exist whether there is a joint family property or not. It is no doubt true that Hindu women have improved in their position so far as the property rights are concerned because of the enactment of the Hindu Code. Still the position remains that in an ancestral property, a son gets a right by birth whereas a daughter gets it by succession i.e. if the father dies intestate. Thus, she has no birth right in the ancestral joint family property. If this is so, then obviously she cannot partition during the lifetime of her father. From the Principles of Hindu Law by Mulla, para 546, it is quite clear that a father is bound to maintain his unmarried daughters and on the death of the father, they are entitled to be maintained out of his estate. The position of law is further clear from the judgment of the Chettaiam Veettil Ammand v. Taluk Land Board : 3SCR839 , wherein while dealing with a similar question under the Kerala Land Reforms Act, in para 56 of its judgment the Supreme Court observed as under:--
'Mr. Raghavan has agreed that the High Court has erred in rejecting the contention that as the appellant had two unmarried daughters, who had attained majority before January 1, 1970 they were entitled to 6 acres each under S. 82(1) of the Act. But the two daughters did not have any share in the property under their personal law and the Act did not give it to them.'
In this view of the matter, it cannot be said that the view taken by the authorities below is in any way illegal.
4. Once it is held that there was no actual partition in the family, nor was any specific portion of the land allotted to the daughter, then the result must follow that Kumari Ranjana, petitioner 1, cannot claim any share in the property on the basis of presumptive partition.
5. The law laid down by the Division Bench of this Court in Rajaram v. Shashikala 1976 Mah LJ 47 is of little assistance while deciding the controversy raised before us. That was a case where petition has taken place between the members of the family after the death of the father. The daughter got a share in the property by virtue of succession. In spite of a share in the property, she claimed an additional amount towards the maintenance and marriage expenses. While rejecting this claim the Division Bench held that when a dependant like a daughter gets a share on partition between her mother and herself as heirs of her father on the one hand and her uncles on the other, the daughter will not be entitled to make an independent or separate claim for her maintenance and marriage expenses in additional to the share in the property. Such is not the case in the present petition. In the present petition, petitioner 1 Ranjana is claiming a share in her father's property during his lifetime on the basis of notional or presumptive partition. Once it is held under her personal law, then it is not disputed before us that such an additional right has not been conferred upon her by the Urban Land Ceiling Act. In this view of the matter, we do not find any substance in the present petition. Hence the Rule is discharged. However, in the circumstances of the case, there will be no order as to costs.
6. Petition dismissed.