JUDGMENT - G.N. VAIDYA, J.:---The short point which arises in the above Special Civil Application, filed by the petitioner, who was declared by the Surplus Land Determination Tribunal, Bhokardan at Camp Molkheda, on February 25, 1976, to be the surplus holder of land to the extent of 37 acres of land, is whether the petitioner is entitled to delimit the surplus out of the lands, which according to him were allotted towards the share of the minor nephew; while according to the Tribunal the surplus had to be delimited in the holdings of the petitioner. The Surplus Land Determination Tribunal delimited the land out of Survey Nos. 107 and 141 of the Sawalatbara and 28 of Murti. These lands according to the petitioner were allotted to his share in the partition, which fact was noticed from the mutation entry made on December 31, 1970. The petitioner carried an appeal to the Maharashtra Revenue Tribunal, before whom respondent No. 4 Yamunabai w/o Kashiram Kale in the above petition made an application as the guardian of the minor who was her daughters son. She is also the mother of the petitioner. The Revenue Tribunal rejected the contention on the ground that the owner of the land being a minor, the offer made by Yamunabai could not be accepted for the simple reason that it cannot be said to be in the interest of the minor. The finding of the Maharashtra Revenue Tribunal is challenged in the above petition under Article 227 of the Constitution of India. Mr. Agarwal, the learned Counsel appearing for the petitioner, contended that as the learned Tribunals included the lands allotted to the minor in the holdings of the petitioner ignoring the partition under section 10 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, they could not deny the delimitation asked for by the petitioner from out of these lands. In support of his contention he relied on an unreported judgment of (Chandurkar, J., dated August 2, 1976, in Special Civil Application No. 1990 of 1976)1. Mr. Hedge, the learned Assistant Government Pleader, appearing for the state, tried to repel this contention by urging that under section 16, if such land is subjected to an encumbrance, the holder has to retain such land. Mr. Hedge, the learned Assistant Government Pleader, appearing for the state, tried to repel this contention by urging that under section 16, if such land is subjected to an encumbrance, the holder has to retain such land. He referred to the statement made by the petitioner before the Surplus Land Determination Tribunal and argued that, as it was stated by the petitioner, before the Tribunal that the lands were allotted to the minor, the lands became encumbered with the minors claim and merely because the grandmother of the minor had filed the application before the Maharashtra Revenue Tribunal, it cannot be said that the encumbrance may be said to be removed by her application. Mr. Agarwal is not right in relying on the decision of Chandurkar, J., in Special Civil Application No. 1990 of 1976, where the facts were different. In that case the minor was the son of the petitioner, and it was observed :--- "While determining the total holding of the petitioner, Survey No. 78, 79 and 31/B-2 standing in the name of the petitioners minor son Nagnath has already been taken into consideration. There is no bar under section 16 which would prohibit the landlord from giving away as surplus land, land standing in the name of the minor son. In the absence of any such bar under section 16, the landholder could not be prevented from having land standing in the name of one of the members of the family unit delimited as surplus land, when that has been treated as a part of the his holding. The view taken by the Maharashtra Revenue Tribunal appears to be entirely unjustified and without any basis in law". What is applicable in respect of the family unit may not be applicable to the case of a sisters son as in the present case. The judgment, therefore, does not assist Mr. Agarwals client. However, the question as to whether there is an encumbrance or not, must be decided in the light of the materials before the Surplus Land Determination Tribunal. It is not open to the Surplus Land Determination Tribunal to ignore the partition as one in contravention of section 10; and then rely on that partition when passing an order under section 16. It is not open to the Surplus Land Determination Tribunal to ignore the partition as one in contravention of section 10; and then rely on that partition when passing an order under section 16. It was the duty of the Surplus Land Determination Tribunal after coming to know about the claim of the petitioner to send a notice to the guardian of the minor before passing an order ignoring the partition. The Tribunal cannot in one breath say, "I ignore the partition" and in another breath say, "I act on the partition", as it appears to have been done in the present case. There is nothing in the statement of Yamunabai to show that she had the legal power to Act as the guardian. Under the Hindu Minority and Guardianship Act the natural guardians of a Hindu minor, in respect of the minors person as well as in respect of the minors property, are in the case of a boy or an unmarried girl the father, and after him, the mother. It is, therefore, difficult to know how Yamunabai who is the grand mother claims to be the guardian of the minor. The petitioner has not placed any material before the Revenue Tribunal to show how Yamunabai calls herself a guardian. But as stated above, it is the duty of the Surplus Land Determination Tribunal to find out the guardian. Under section 16, the petitioner may say that the land allotted to the minor should be the land in which the surplus should be delimited after the tribunal comes to the conclusion that the allotment to the minor should be ignored. But now that the learned Tribunals have come to known that the petitioner himself has not made any statement, such an order cannot be passed without giving notice to the minor. In the circumstances the order determining the surplus land is confirmed, as it was not even challenge before me. The order of determining the surplus passed by the Surplus Land Determination Tribunal and confirmed by the Maharashtra Revenue Tribunal is set aside and the case is restored to the file of the Surplus Land Determination Tribunal, Bhokardan, for deciding whether the surplus land can be delimited out of any or all of the lands alleged to have been allotted by the petitioner to the minor. For this purpose, the petitioner should make an application to the said Surplus Land Determination Tribunal within 8 days of the receipt of the writ of this Court by the Surplus Land Determination Tribunal or within two months from today whichever date occurs earlier giving the name of the minor an stating the name and address of the minor and stating also out of what lands, the petitioner wants to delimit the surplus land, If the petitioner fails to make an application as directed above, the delimitation order passed by the Surplus Land Determination Tribunal shall stand confirmed. As the petitioner does not appear to have taken this point about delimitation before the Surplus Land Determination Tribunal in a proper form giving the name and address of the guardian of the minor, the petitioner shall pay the costs of the respondents. If after the petitioner files an application and the Surplus Land Determination Tribunal records the evidence on the point, the Tribunal comes to the conclusion that there is no encumbrance on any of the lands specified by the petitioner for delimitation in form No. 7, his choice may be accepted for the purpose of delimitation; and the declaration of delimitation may be made according to law. Rule is made absolute accordingly. The petitioner to pay the costs of the respondent. -----