ORDER S.M.N. Raina, J. 1. This is a petition under Art. 226 of the Constitution. 2. The petitioner is a resident of village Sarwa in Dabra Tahsil, District Gwalior. On 4-5-1957 he filed an application under section 62 of the M. B. Land Revenue and Tenancy Act (hereinafter referred to as the Act) for allotment of Khasra Nos. 206, 216, 227 and 230 of village Sarwa. On 12-2-1958 respondent No. 4 filed a similar application for allotment of certain Khasra Nos. including Khasra Nos. 206, 216 and 227- Both these applications were rejected on 6-10-58. On reconsideration of the case of the petitioner, the Tahsil Court allotted Khasra Nos. 206, 216, 227 and 230 to the petitioner on 7-12-58 and put him in possession thereof. Respondent No. 4 did rot file any review petition against the order rejecting his application, but he preferred first and second appeals against the order of allotment in favour of the petitioner. Both the appeals were dismissed. But in revision, the Board of Revenue set aside the order of allotment in favour of the petitioner and remanded the case for considering the claims of the petitioner as well as respondent No. 4 vide order dated 25-2-61. 3. In proceedings on remand, the Naib Tahsildar allotted Khasra Nos. 206, 216 and 227 to respondent No. 4 by order dated 20-6-65 (Annexure A). Against this order the petitioner filed in appeal which was allowed by the S. D. O. by order dated 14-3-57 vide annexure B. Being aggrieved by this order of the S.D.O. respondent No. 4 filed a second appeal before the Commissioner. The Additional Commissioner, who heard the appeal held that both the parties were not entitled to the benefit of Rule 7 (2) (i) of the Allotment Rules and directed that the land should be auctioned according to clause (ii) of sub-rule (2) of rule 7 vide annexure C. Respondent No. 4 did not file any revision petition against this order. The petitioner went up in revision before the Board. The revision petition was dismissed by the Board on the ground that the petitioner was not eligible for allotment under clause (i) of sub-rule (2) of rule 7 as he held 251/2 acres of land as a member of a joint Hindu family. The petitioner went up in revision before the Board. The revision petition was dismissed by the Board on the ground that the petitioner was not eligible for allotment under clause (i) of sub-rule (2) of rule 7 as he held 251/2 acres of land as a member of a joint Hindu family. Being aggrieved by this order the petitioner has filed this petition praying that the order of the Board and that of the Additional Commissioner may be quashed. 4. In the return filed on behalf of the State Government it has been submitted that the view taken by the Board is correct and that the petition is not maintainable even otherwise. Non-petitioner No. 4 has not filed any return. 5. It appears that it was not disputed before the Board that 251/2 acres of land stands jointly recorded in the name of the petitioner and his 2 brothers as members of a joint Hindu family. Shri H. N. Dwivedi, Learned Counsel for the petitioner urged that he never admitted this fact before the Board. According to him 29-1/2 Bighas of land in Mouza Sarwa stands recorded in the name of the petitioner's father and 22 Bighas of land in Mouza Hirora is held jointly by the petitioner and his 2 brothers along with 4 others, who are strangers. 6. As regards the land in Mouza Sarwa Shri Dwivedi conceded that this land is held jointly by the petitioner along with his father and 2 brothers, but he contended that plaintiff is separate from other members of the family and as such cannot be deemed to hold the land as a member of the joint Hindu family. He further urged that even if he made an erroneous admission before the Board it should not prejudice the petitioner. It is however, not necessary to go into this controversy, because in our view the petitioner cannot be deemed to be holding 15 acres of land within the meaning of the Allotment Rules even if it is assumed that 25-1/2 acres of land stands recorded in the name of the joint family of which the petitioner is a member. 7. It is however, not necessary to go into this controversy, because in our view the petitioner cannot be deemed to be holding 15 acres of land within the meaning of the Allotment Rules even if it is assumed that 25-1/2 acres of land stands recorded in the name of the joint family of which the petitioner is a member. 7. Sub-rule 2 of rule 7 of the Allotment Rules is as follows : -- According to this Rule persons holding land less than 15 acres on Pucca tenancy lights would fall in the first category and would be entitled to preference in the matter of allotment. The point for consideration is whether the petitioner can be held to hold land more than 15 acres in area, merely because he is a member of a joint family which holds in all 251/2 acres of land. It is not disputed that the petitioner has his father and 2 brothers. The learned member of the Board who heard this case held that as a member of the joint Hindu family, the petitioner should be deemed to hold not more than 15 acres of land and is corning to this conclusion he relied on the decision of this Court in Daryao v. Rakhobdas 1968 RN 268,. 8. It is no doubt true that under the Hindu Law the ownership of the co-parcenary property is in the whole body of co-parceners and according to the true notion of an undivided family governed by the Mitakshra Law, no individual member of the family wh(sic)e it remains undivided can predicate, of the joint and undivided property, that he has a definite share, one third or one fourth. His interest is fluctuating interest capable of being enlarged by the deaths in the family and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. But it would not be correct to say that each member holds the entire property, although he may be in the joint possession thereof as a member. Apart from this it would not be correct to apply the principles of co-parcenary, while interpreting Rule 7 of the Allotment Rules which is applicable not only to Hindus, but also to members of other communities. Apart from this it would not be correct to apply the principles of co-parcenary, while interpreting Rule 7 of the Allotment Rules which is applicable not only to Hindus, but also to members of other communities. It would also be pertinent to mention here that even in the matter of succession the rule of survivorship was not applicable to agriculture lands under S. 82 of the M. P. Land Revenue and Tenancy Act. 9. If we carefully examine the scheme of allotment under the Rules it would appear that the object of the Rules is to avoid accumulation of land in a few hands and as such preference is given to persons holding land less than 15 acres. It would be preposterous to suggest that the intention of the Rules is that a person holding 14 acres of land may be preferred to one holding a fractional share equivalent to one or two acres as a member of a joint family owning more that 15 acres. 10. Suppose A is a member of a joint Hindu family holding 25 acres of land and his share in the holding is only one-tenth, there being 10 members in the family. If A sues for partition he will be entitled to only 21/2 acres of land. If the view taken by the Board is accepted it would mean that a member of a Hindu family would be in a better position, if there is a partition, but not otherwise. Such a view does not commend to reason and this does not appear to us to be the intention of the Rules. Where land is held jointly by a number of persons each must be deemed to hold land equivalent to his share for the purposes of these Rules, and his right to allotment may be considered accordingly. 11. The Board apparently relied on the decision of this Court in Daryav and others v. Rakhabhdas and others (supra) and the Learned Counsel for the respondent also strongly relied upon it. That case is, however, on a different point. 11. The Board apparently relied on the decision of this Court in Daryav and others v. Rakhabhdas and others (supra) and the Learned Counsel for the respondent also strongly relied upon it. That case is, however, on a different point. It was held in that case that where land held by several judgment-debtors jointly is attached and sought to be sold in execution of a decree every joint holder of land is not entitled to the exemption of 5 or 10 acres of land under clause (a) of sub-section (7) of S. 165 of the M. P. Land Revenue Code. Sub-section 7 of S. 165 reads as under:-- S. 165 (7) (a). Only that part of a holding of a Bhumiswami shall be liable to attachment or sale in execution of any decree or order as is in excess of five acres of irrigated or ten acres of unirrigated land;. In the aforesaid section what has been exempted from attachment is that part of a holding which is in excess of 5 acres of irrigated or 10 acres of unirrigated land. As would appear from paragraph 4 of the judgment the view taken in that case was based on the definition of the word 'holding' in S. 2(1)(i) of the Code. Since in the case of joint tenure holders the holding is one and indivisible the exemption can operate only on the holding as a whole. The share of each tenure holder in the holding could not be treated as a holding for the purposes of the aforesaid provision, particularly in view of the definition of the word holding in S. 2(1)(i). This decision is thus of no value for the purposes of interpreting Rule 7 of the Allotment Rules. 12. We therefore, hold that for the purposes of Rule 7 of the Allotment Rules the share of the applicant in a joint holding alone should be taken into consideration for the purposes of considering his eligibility for allotment. As the Board proceeded upon an erroneous interpretation of Rule 7, which is apparent, the order of the Board is liable to be quashed. 13. The Learned Counsel for the respondents urged that the finding of the Board that the petitioner held more than 15 acres of land is a finding of fact, and there can be no interference with it in a petition under Art. 226 of the Constitution. 13. The Learned Counsel for the respondents urged that the finding of the Board that the petitioner held more than 15 acres of land is a finding of fact, and there can be no interference with it in a petition under Art. 226 of the Constitution. We are not impressed by this contention. The Board accepted that the petitioner, as a member of a joint Hindu Family, held in all 25-1/2 acres of land along with other members of the family and arrived at the conclusion that the petitioner should be deemed to hold 15 acres of land on an erroneous construction of Rule 7. The error is thus one of law which is apparent on the face of the record. 14. Another point urged by the Learned Counsel for the respondent was that since the M. B. Land Revenue and Tenancy Act has since been repealed, the petitioner is not entitled to claim any allotment under S. 62 of the Act, and therefore the petition is liable to be dismissed. We do not find any substance in this contention in view of the provisions of section 262 of the Code. Sub-section (1) of section 262 provides as under :-- 262. Transitory provisions:--(1) Save as otherwise expressly provided in this Code, all cases pending before the State Government or any Revenue Court in any region immediately before the coming into force of this Code, whether in appeal, revision, review or otherwise shall be decided in accordance with the provisions of the appropriate law, which would have been applicable to them had this Code not been passed. In view of the aforesaid provision it is clear that all cases pending before a Revenue Court in the M. B. Region before the coming into force of this Code have to be decided in accordance with the provisions of M. B. Land Revenue and Tenancy Act. The application of the petitioner for allotment was made before the Code came into force and, in fact, an order of allotment was also made in his favour before the Code came into force. The petitioner is, therefore, entitled to have his application for allotment considered and decided in accordance with the provisions of the M. B. Land Revenue and Tenancy Act. The petitioner is, therefore, entitled to have his application for allotment considered and decided in accordance with the provisions of the M. B. Land Revenue and Tenancy Act. In Prubhudayal v. State 1964 RN 262 it was held that a case instituted under section 91 of the M. B. Tenancy Act, 1950 on 17-2-1953 was to be decided in accordance with the provisions of the M. B. Land Revenue and Tenancy Act in view of section 262(1) of the Code. A similar view was explessed in Kundansingh v. Kunnu 1969 RN 264 in respect of a proceeding under section 70 (2) of the M, B. Land Revenue and Tenancy Act. 15. Learned Counsel for the respondent relied on a decision of this Court in Dalumal v. State of MP 1970 JLJ 249 : 1970 RN 156. In that case, it was held that an application for allotment under section 162 of the M P. Land Revenue Code could not proceed after the said section had been repealed. This decision is distinguishable because section 262 was not applicable in that case. Moreover, in the instant case, the petitioner had acquired a right after an allotment had been made in his favour before the commencement of the Code. That right could not be affected by subsequent repeal of the M. B. Land Revenue and Tenancy Act. 16. We, therefore, hold that the impugned order which proceeds upon an erroneous interpretation of Rule 7 of the Allotment Rules is liable to be set aside. The order of the Additional Commissioner dated 8-9-1967, who proceeded upon a similar view is also liable to be quashed. As there may be other aspects of the question of allotment it would be open to the Board to consider the case of the petitioner afresh in the light of this decision. 17. The petition is, therefore, allowed and the order of the Board dated 24-9-1969 and of the Additional Commissioner dated 8-9-1957 are hereby quashed. We make no order as to costs in the circumstances of this case. Petition allowed