JUDGMENT - G.N. VAIDYA, J.:---The above special civil application is filed by Mohomed Yusuf Haji Amirsaheb Rais, Nasimpasha Haji Amirsaheb Rais and Amirpasha Arifpasha Haji Amirsaheb Rais, the three sons of Khanbahadur Haji Amirsaheb Rais, challenging the declaration of surplus lands, made by the Sub-Divisional Officer, Dahanu Division, Dahanu, on March 16, 1976, stating that the petitioners were entitled to retain only 134 acres 33 gunthas of Warkas Lands, 64 acres 3 gunthas of Kharap lands and 17 acres 4 gunthas of Pot Kharab lands, as surplus lands were held by the petitioners, over ruling their contentions that they were holding the lands separately under the family arrangements made by their father in the year 1944; and the partition affected all the property. The said decision was confirmed by the Maharashtra Revenue Tribunal, Bombay, in an appeal filed by them, on July 30, 1976. observing as follows : "The Sub-Divisional Officer after full consideration has come to the conclusion that the lands even though are shown to have been held by the Appellant separately, are in fact held by them, jointly and, therefore, they are liable to file a return and surrender the surplus land. A case has been made by appellant No. 1 that all the three brothers have been living separately and have their business separate and they are also assessed separately. The definition of family is given in section 2(11) of the Act. As per it, in the case of other includes group or unit, the members of which by customs or usage are joint in estate or possession or residence. The appellants and all other Muslims in this part of the State are living jointly by customs or usage. In the instant case even though the appellants might have been living separately and having separate business and are separately assessed, still if they are found to be in joint possession of the lands held by them, then certainly they will constitute a family as per section 2(11) of the Act." The decision is challenged by the petitioners by filling the above Special Civil Application under Article 227 of the Constitution of India. Mr. Mr. Parulekar, the learned Counsel appearing for the petitioners, submitted that in the case of Muslims, there cannot be a customs or usage of being joint in estate, possession or residences as such family arrangements are unknown to the Mahomedan Law; and under the Shariat Act, no other rule can be applied to the Muslims. The contention must be upheld. When the members of a Mahomedan family live in commensality, they do not form a joint family in the sense in which that expression is used in the Hindu Law. Further, in the Mahomedan Law, there is not, as in the Hindu Law, any presumptions that the acquisition of the several members of a family living and missing together are for the benefit of the family. In the present case, even if the partition as alleged is ignored, it must follow that the brothers and other heirs of the father should succeed as tenants-in-common, according to the Mahomedan Law. (See para 57 at page 54 of Mullas Principles of Mahomedan Law, 17th Edition, 1972 and Para 41 at page 31 of it). It cannot be said in the circumstances that any of the brothers is holding the shares of the other brothers as an owner within the meaning of the definition of the words "to hold land" under section 2(14) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The holdings of the petitioners ought to have been, therefore, separately determined according to their respective shares and the principles of Mahomedan Law, which would depend on the number of heirs left behind by Khanbahadur Haji Amir Saheb Rais. For this purpose, a proper inquiry will have to be made by the Sub-Divisional Officer. The order passed by the Revenue Tribunal on July 30, 1976, and by the Sub-Divisional. Officer, Dahanu Division, Dahanu, on March 16, 1976, must be therefore, set aside; and the case must be restored to the file of the Sub-Divisional Officer, Dahanu, Division, who will take into consideration the shares of all the heirs, after making a proper inquiry into the number of heirs left behind by Khan Bahadur Haji Amirsaheb Rais in accordance with the Mahomedan Law; and then proceed to dispose of the case in the light of the observations made hereinabove, bearing in mind the rules of the Mahomedan Law and the provisions of the Ceiling Act, before its recent amendment of 1972. Rule is accordingly made absolute and the case is remanded to the Sub-Divisional Officer, as stated above. In the circumstances of the case, there shall be no order as to costs. -----