D.B. Deshpande, J.
1. Both these writ petitions arise out of the common judgment delivered by the Maharashtra Revenue Tribunal in three land ceiling appeals filed before him and that is why they are heard together and disposed of by common judgment. They arise out of the following facts :---
2. Biharilal is the petitioner in Writ Petition No. 1901 of 1981. His son Radheshyam and his wife Basantabai are the petitioners in the other writ petition. There was an oral partition amongst these 3 members of the joint family some time in 1954. Thereafter Radheshyam filed Suit No. 185/1 of 1955 in confirmation of this partition and for grant of patta in his name. A similar Suit No. 187/1 of 1955 was filed by Basantabai. Both these suits ended in consent decrees on 8th February, 1955. An application in pursuance of these partition decrees was made to the Deputy Collector, Parbhani for effecting entries in the revenue records accordingly. On 6th May, 1955 the Deputy Collector passed an order directing the Tahsildar to make necessary entries after making enquiry. The two orders are Nos. 67/65-56 and 68/55-56. However, the matter was delayed in the office of the Tahsildar. On 12-6-1957 the Tahsildar gave a direction to the Village officers to effect entries in pursuance of the partition decrees. However, the village officers took their own time and did not make such entries till 1961. For the first time the village officers made separate entries in 1961-62.
3. Now the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short hereinafter referred to as the Ceiling Act) came into force on 26th January, 1962. Notice was issued to Biharilal who filed his return on 1-11-1962 under the old Ceiling Act. In the return he has shown 4 lands belonging to him namely.
Village Survey No. Area.A.G.Tedi Pimpalgaon. 118 16.13' 119 22.34' 120 26.17Village Jhari. 79 23.38----------------TOTAL : 89.22 Acres.----------------
Notices were issued under section 17(1) and 17(2) of the Ceiling Act. On 1-9-1971 the Deputy Collector held that the return filed by Biharilal was not correct and so he imposed a fine of Rs. 100/- on Biharilal and directed him to file a fresh return. The main ground on which he proceeded to pass this order was that he did not recognise the partition.
4. Biharilal referred an Appeal No. 39-A/72 before the Maharashtra Revenue Tribunal, Aurangabad who allowed the appeal and remanded the matter to the Deputy Collector with a direction that notices be issued to Basantabai and Radheshyam and the matter be decided afresh after hearing them. Accordingly notices were issued to Basantabai and Radheshyam again on 30th July, 1973. The Deputy Collector passed an order directing Biharilal to file a fresh return and thereafter notices were again issued under section 17(1) and 17(2) of the Ceiling Act. Biharilal and Basantabai appeared and pleaded partition. On 25-10-1973 the learned Deputy Collector rejected the plea of partition and held that all lands belonged to Biharilal. Although he held that the surplus was to the extent of 131 acres 34 gunthas, he passed an order that Biharilal was a surplus holder to the extent of 132 acres 14 gunthas.
5. Three separate appeals were preferred to the Maharashtra Revenue Tribunal, Aurangabad against this decision of the Deputy Collector. They are Appeal No. 246/A/73 Parbhani, (2) No. 247/A/73/Parbhani and (3) No. 248/A/73/Parbhani. By common judgment dated 12-6-1974 the Maharashtra Revenue Tribunal dismissed all the three appeals. Thereafter three Special Civil Applications were filed in this Court at Bombay and they were (1) Spl. C.A. No. 2558/74 (2) Spl. C.A. No. 481/75 and (3) Spl. C.A. No. 508/75. On 19th March, 1979 this Court allowed all the three Special Civil Applications and remanded the matter to the Maharashtra Revenue Tribunal for fresh decision on the question of partition on the basis of the evidence that was on record and not on the basis of assumptions which were made by the Deputy Collector and the Maharashtra Revenue Tribunal. Therefore, the three matters again went back to the Maharashtra Revenue Tribunal and the M.R.T. again dismissed these three appeals. Feeling aggrieved Biharilal preferred Writ Petition No. 1901/1980 and Radheshyam and Basantabai together preferred Writ Petition No. 1902/1980.
6. Shri S.N. Loya appearing for Biharilal and Shri S.C. Bora appearing for the other petitioners contended that the decisions of the Maharashtra Revenue Tribunal ignoring the partition were clearly contrary to law and were totally unsustainable. It is clear from the lengthy judgment of the Maharashtra Revenue Tribunal that the learned Member has gone out of way to consider several questions which did not at all arise for consideration before him. In fact, he should have straightway accepted the partition decrees that were passed by the Civil Court as far back as in 1955 when the ceiling legislation was probably not even in contemplation. Instead of doing so, the learned Member has gone to consider several other matters. It is apparent that first of all he proceeded to find out whether the entire property that was alleged to have been partitioned was a joint family property at all. Assuming for a moment that some of these properties were self-acquired property of Biharilal, it was open to Biharilal to throw those self-acquired properties in the common hotch-pot so that it should attract the nature of a joint family property. The question was not in dispute and it is clearly mentioned in the suits that in the family partition the lands were allotted as stated in those two plaints. By implication, it means that the property which fell to the share of Radheshyam and Basantabai was a joint family property and, therefore, in addition, that property fell to their share. The learned Member was absolutely wrong in going behind the partition-decree. Then the learned Member has further observed that there cannot be a partition between a person and his minor son. I do not think that there is any legal bar in Hindu Law for a partition being effected between a person and his minor son. Therefore, Shri. S.N. Loya placed reliance on a decision given by the Division Bench of this Court in Pralhad v. State of Maharashtra, (Spl.C.A. No. 201/67 decided on 25-4-1968) 1972 Mh.L.J. Note 40. The Division Bench has pointed out that there could be a partition between a person and his minor son and it must be accepted. That was also a decision under the Ceiling Act. Even otherwise, there is no bar for effecting a partition between, a person and his minor son. Then the learned Member has proceeded to hold that there is no proof that the partition was in respect of the entire movable and immovable property. Here again the learned Member has gone beyond scope. The learned Member has himself observed in his judgment that Basantabai stated on oath that her husband had no house and no other property. This should have concluded the issue once for all but the learned Member has again gone into the arena of probing of all these factors. He has stated that the maternal uncle of Radheshyam was not examined. I fail to understand as to what is the effect of non-examination of Shrinivas, the guardian of Radheshyam, in the face of two decrees for partition effected by the Civil Court. Then he has also gone to consider that receipts for payment of land revenue were also not produced. In the face of the decrees these things could not be considered by the Maharashtra Revenue Tribunal and again curiously enough the learned Member has proceeded to observe that the decrees were only for Patta. All the same it is apparent that the suits were filed on the ground that there was a partition in the family and possession was handed over to them and that is why the suits were more or less for confirmation of the partition and for grant of Patta in their names. I am, therefore, satisfied that the learned Member of the Maharashtra Revenue Tribunal has totally gone wrong and in my opinion, he has exceeded his jurisdiction in commenting upon the partition decrees to hold that there was no such partition and he was wrong in ignoring this partition. It appears that the learned Member has placed reliance on a decision of the Supreme Court of India in Raghunath v. The State of Maharashtra (1973)75 Bom.L.R. 442. That ruling is not applicable to the facts of this case. On the other hand, Shri.S.N. Loya placed reliance upon a decision of the Supreme Court of Indian in Uttar Chand (decd.) by L. Rs. v. State of Maharashtra & another, : 2SCR1048 . In this ruling also transfers were effected 3 years prior to the relevant date i.e. 4th August, 1959 and the Supreme Court held that no enquiry could be held about such transfers and these transfers were accepted by the Supreme Court. He has also placed reliance upon another decision of this Court in (Bhalchandra v. State of Maharashtra) (1983) Mh.L.J. 1014, in the matter.
7. I am, therefore, satisfied that the learned Member of the Maharashtra Revenue Tribunal has committed clear illegality and, therefore, both these writ petitions deserve to be allowed. Accordingly both these writ petitions are allowed. The orders of the Deputy Collector and of the Maharashtra Revenue Tribunal ignoring the partition and declaring Biharilal as a surplus holder on that basis are hereby quashed and the Deputy Collector is directed to accept the partition evidenced by the partition decrees and to decide the question of surplus holding of Biharilal on the basis of these partition decrees. Rule is made absolute but in the circumstances there will be no order as to costs.