JUDGMENT - G.N. VAIDYA, J.:---On September 24, 1964, the Special Deputy Collector Land Ceiling, Shrirampur, verified and return furnished by the Petitioner under section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 ( hereinafter referred to as " the Ceiling Act") and declared that no land was held by the Petitioner in excess of the ceiling area under section 21(2) of the Ceiling Act, finding as follows : " There are 13 members in the undivided Hindu family of the holder, out of whom 3 person viz., Pandharinath, Digamber and Radhabai have separate lands in their names. It is, therefore, declared that the holder is entitled to hold 198 acres of dry crop land as his ceiling area, that no land is held by him in excess of ceiling area, that no land is delimited as surplus land and that no land is forfeited to the State Government." The said declaration was made after making necessary conversion of the different classes of lands into dry crop lands. In exercise of his powers under section 45(2), the Additional Commissioner, Poona Division, Poona, after issuing a show cause notice to the petitioner, set aside the order passed by the Deputy Collector and declared that Pandharinath could not be excluded from the family as his lands, situate at Nipani bearing G. No. 153 and at Umbargaon bearing No. 50, were part of the property of the undivided joint Hindu family of the petitioner and the said lands were also " in actual possession of the joint family as per section 2(9) of the Ceiling Act." The said order passed by the Commissioner on March 20. 1968, is challenged before us by Mr. More, the learned Counsel, for the Petitioner, firstly on the ground that the order of the Deputy Collector was passed on September 24, 1964, and the Additional Commissioner had no jurisdiction to pass an order on March 20, 1968, in view of the provisions of section 45(2) of the Ceiling Act; and secondly, on the ground that the Commissioner erred in law in applying section 2(9) of the Act and in ignoring the provisions of section 6 of the Ceiling Act. There is no substance in the first ground. The Additional Commissioner has filed an affidavit stating that the Commissioner had called for the case from the lower Court on September 23, 1965. There is no substance in the first ground. The Additional Commissioner has filed an affidavit stating that the Commissioner had called for the case from the lower Court on September 23, 1965. All that section 45(2) requires is that the Commissioner to who the powers of the State Government under the proviso to that section are delegated must call for the record of any inquiry or proceedings under section 21 before the expiry of the period of three years from the date of such declaration or part thereof. As the Commissioner in the instant case had called for the papers in September 23, 1965, it cannot be said that the Commissioner had no jurisdiction to pass an order after perusing the papers. The proviso to section 45(2) does not require the Commissioner to pass an order within three years from the date of the declaration. Once the papers were called within the period of three years there is nothing in the proviso to prevent the Commissioner from passing an order on persual of the papers thereafter. The Petitioner, is however, entitled to succeed on the second ground. It is difficult to appreciate what exactly the Additional Commissioner meant by saying that the lands standing in the name of Pandharinath "remained in actual possession of the joint family as per section 2(9) of the Ceiling Act from 4-8-1959 onwards". The Commissioner accepted the contention raised on behalf of the petitioner before him that the petitioners uncle Mahadeo Sakharam had transferred the said lands in the name of Pandharinath who was a minor son of the petitioner on January 26, 1962, and continued to be minor on July, 18, 1959 and on August 1, 1959, and the mutation entry in respect of Nipani Vadgaon was effected on July 27, 1959 and in respect of Umbargaon land, mutation entry was effected on August 2, 1959. The Additional Commissioner even accepted that if these three lands were validly transferred by Mahadeo Sakharam to Pandharinath the lands would be separate property of Pandharinath. The Additional Commissioner, however, felt that the gift deed was not produced to support the contention that the lands were gifted to Pandharinath by Mahadeo Sakharam and as Mahadeo Sakharam had six other sons the gift deed was void and that, therefore, lands standing in the name of Pandharinath could not be the separate property of Pandharinath. The Additional Commissioner, however, felt that the gift deed was not produced to support the contention that the lands were gifted to Pandharinath by Mahadeo Sakharam and as Mahadeo Sakharam had six other sons the gift deed was void and that, therefore, lands standing in the name of Pandharinath could not be the separate property of Pandharinath. Now, the Additional Commissioner appears to have mentioned the date " 4-8-1959" as any transfer after that date has to be ignored for the purpose of ceiling Act under section 8, 10 and 12 . Pandharinath being a minor, the cultivation of the land by the petitioner could not necessarily lend to the inference that undivided family was in possession of the lands. Moreover, section 2(9) only defines the words "to cultivate personally". Explanation I to that definition states that a person under disability shall be deemed to cultivate personally, if he cultivates through his servants , or by hired labour. Explanation II to that section says that in the case of a joint family, land shall be deemed to be cultivated personally, if it is so cultivated by and other member of such family. It cannot be said that any of these explanations would apply to the facts of the present case because the lands having come into the possession of Pandharinath by transfer effected through the mutation entries referred to above cannot be as held by the Additional Commissioner himself, the joint family property. It is not disputed that the petitioner and Mahadeo Sakharam have been separated from each other on December 20, 1952. What the Commissioner had really to consider was whether Pandharinath could be included in calculating the member of the family for the purpose of section 6 of the Ceiling Act, the proviso of which lays down that :--- "Provided that for the purpose of increasing the holding of a family in excess of the ceiling area as aforesaid, if any member thereof holds any land separately, he shall not be regarded as a member of that family for such purpose." This proviso is clearly a departure from the general principles of Hindu Law which permit a member of the joint Hindu family to have separate property and still continue as member of the joint Hindu family. The Additional Commissioner appears to have ignored this proviso in applying the general rules of Hindu Law to the facts and circumstances of the case notwithstanding that he himself had recorded a finding that if the transfer could be made in favour of Pandharinath of the aforesaid lands, the lands would be the separate property of Pandharinath. What the Additional Commissioner had to consider was the meaning of the word " holding " as defined in section 2(14) which runs as follows :--- "to hold land" with its grammatical variations and cognate expressions means to be lawfully in actual possession of land as owner or as tenant and holding shall be construced accordingly. " The possession of the aforesaid lands by Pandharinath was not challenged by Mahadeo Sakharam or his sons before the Commissioner. Pandharinath according to the record of rights, was in possession of the lands as owner. An affidavit is also filed in this Court by Dashrath, Namdeo and Bapu, three sons of Mahadeo Sakharam, stating that they had consented to the transfer of the aforesaid lands to Pandharinath. It is true that the gift deed is not produced and there is no case made out by the petitioner that any registered gift deed was executed by Mahadeo Sakharam, but as the real owners and persons who are interested in the said lands have not challenged the legality of the possession of the said lands by Pandharinath, it was not open to the Commissioner to declare the transfer to be invalid, the transfer not being a transfer which contravented any of the provisions of the Ceiling Act. The Commissioner was, therefore, not justified in proceeding to declare the transfer as invalid and in including Pandharinath as a member of the family contrary to the proviso to section 6 and in holding that the joint family was in possession of the lands after 4-8-1959 forgetting that Pandharinath was a minor and his guardian father was cultivating the lands on his behalf. In the facts and circumstances of the case, therefore, the Additional Commissioner acted illegally in setting aside the order passed by the Special Deputy Collector, Land Ceiling, Shrirampur, on September 24, 1964. In the facts and circumstances of the case, therefore, the Additional Commissioner acted illegally in setting aside the order passed by the Special Deputy Collector, Land Ceiling, Shrirampur, on September 24, 1964. The Commissioner appears to have relied on the return filed by the petitioner including Pandharinath as a member of the family and showing the lands in the return but there are endorsements made against the entries in respect of Nipani and Umbargaon lands showing how the lands are standing in the name of Pandharinath from July 27, 1959 and August 2, 1959, respectively. The Additional Commissioner ought not have ignored the special particulars given in respects of the lands which showed that the petitioner treated these lands as the lands of Pandharinath. The Special Deputy collector was, therefore, right in excluding Pandharinath from the family and his lands from the family lands. In the result, the petition succeeds. The order passed by the Additional Commissioner on March 20, 1968, is quashed and the order passed by the Special Deputy Collector on September 24, 1964, is restored. Rule absolute. In the circumstances of the case, no order as to costs. -----