( 1 ) IN these writ petitions the petitioners who are owners of the lands mentioned in the impugned orders have challenged the order passed by the 1st respondent at Ext. 'c' and confirmed by the 2nd respondent by his order at Exhibit 'b' determining the ceiling area of the lands. W. P. No. 10622/1976 is filed by the son of the petitioner in W. P. No. 10627/76. The son and the father will be hereinafter called as 1st and and the 2nd petitioners. Their case is that they are governed by the hindu Law, and at a partition made by the 2nd petitioner which right he could exercise under the Hindu Law, the 1st petitioner got 64. 4 acres and the 2nd petitioner got 99 acres, and 38 acres out of it were under a lease to the 4th petitioner who is the married daughter of the 2nd petitioner. Respondents 5, 6 and 7 are the daughters of the 2nd petitioner. ( 2 ) THE mutation entry No. 6110 was made pursuant to the information accorded in respect of the partition and the village records were corrected accordingly. The khata extracts show that the 1st petitionerheld 3 lands viz. , survey No. 437, 279 and 393 measuring in all 64 acres 4 guntas and the 2nd petitioner got survey Nos. 620, 437, 279 and 607 of tamba village in Indi Taluk. Survey No. 627 measuring 38. 29 acres remained with the 4th respondent as a tenant and the said survey number is the subject matter of tenancy proceedings on an application filed by the 4th respondent for grant of occupancy rights under the Karnataka land Reforms Act, 1961 (to be hereinafter called the 'act' ). ( 3 ) THE 2nd petitioner filed the declaration as required u Sec. 66 of the act. It was referred to the Revenue Inspector for Land Reforms for enquiry and report and after submission of the report, the Special tahsildar for Land Reforms, Indi, passed the impugned order marked at exhibit 'b. According to his order, the total extent of the area of the land is 164. 02 acres. The 2nd respondent held that the 2nd petitioner is entitiled to retain the land to the extent of 12 units i. e. , 10 units for five members and for extra one member 2 units, in all a total of 64. 02 acres. The 2nd respondent held that the 2nd petitioner is entitiled to retain the land to the extent of 12 units i. e. , 10 units for five members and for extra one member 2 units, in all a total of 64. 32 acres and directed the declarant to surrender the surplus land to an extent of 99. 10 acres to Government. After directing the 2nd petitioner to indicate the land that he would like to surrender within 30 days, the declarant should express his choice of survey numbers and after such expression of the choice the 2nd respondent accepted the surrender, aggrieved by this order, the 1st petitioner filed an appeal before the 1st respondent who dismissed the appeal at Exhibit 'c' and confirmed the order parsed by the 2nd respondent. The 1st respondent was of the view that the transfer made in favour of the 1st petitioner is against law, since the 1st petitioner is a minor and therefore he took the total extent of land as belonging to the family of the 2nd petitioner and further was of the view that the 4th respondent's tenancy was an insertion at a subsequent date and that the entire extent of land was owned by the family of the 2nd petitioner and, therefore, rejected the claim of the 1st petitioner for separately fixing the ceiling limits in respect of the lands which he got at a partition of the family. ( 4 ) IN WP. 10622/1976 the State of Karnataka was served with a notice it remained unrepresented. In W. P. No. 19627/1976 the Advocate for the petitioner served the notice twice to the State of Karnataka and produced the acknowledgement for service of notice on it. In this writ petition also the State Government remained unrepresented. Now the question for decision is whether the impugned orders are sustainable in law. ( 5 ) MR. A. V. ALBAL, learned advocate for the petitioners, contended that the scope under S. 63 (10) of the Act, which was inserted by Act No. 1 of 1974 does not permit the calculation of the holding of the land allowed at a partition while determining the land in excess of the ceiling area. He urged that the word 'transfer' does not take in its sweep the land got at a partition. He urged that the word 'transfer' does not take in its sweep the land got at a partition. S. 63 (10) of the Act, reads thus: notwithstanding anything in the preceding sub-section, if any person has- (i) after the 18th Nov 1961 and before the 24th Jan 1971 transferred any land the extent of which if added to the other land retained by him could have been deemed to be surplus land before the date of commencement of the Amendment Act; or (ii) after the 24th January 1971 transferred any land otherwise than by partition or by donation to the Karnataka Bhoodan Yagna board established under the Karnataka Bhoodan Yagna Act, 1963 (Karnataka Act 34 of 1963) or by sale to the tenant of such land in conformity with any law for the time being in force, then in calculating the ceiling area which that person is entitled to hold, the area so transferred shall be taken into account and the land exceeding the ceiling area so calculated shall be deemed to be in excess of the ceiling area notwithstanding that the land remaining with him may not in fact be in excess of the ceiling area. ( 6 ) IF by reason of such transfer the person's holding is less than the area so calculated to be in excess of the ceiling area, then all his lands shall be deemed to be surplus land and the provisions of ss. 66 to 76 shall, as far as may be, apply to the surrender to and vesting in the State Government of such excess land. Explanation : For purposes of this sub-section the land shall be deemed to have been transferred if it has been transferred by act of parties (whether by sale, gift, mortgage with possession, exchange, ties (whether by sale, gift, mortgage with possession, exchange, lease or any other kind of disposition made inter vivos ). It is clear from sub-section (10) of S. 63 that lands transferred after 18th November, 1961 and before 24th January, 1971 should be added to other land retained by the holder of the land and the surplus would become the land in excess of the ceiling area. It is clear from sub-section (10) of S. 63 that lands transferred after 18th November, 1961 and before 24th January, 1971 should be added to other land retained by the holder of the land and the surplus would become the land in excess of the ceiling area. Clause (ii) of sub-sec (10) of Section 63 of the Act, says that if any land is transferred after 24th january, 1971, otherwise than by partition or by donation to Karnataka bhoodan Yagna Board established under the Karnataka Bhoodan Yagna act of 1963, or by sale to the tenant of such land in conformity with any law for the time being in force, then in calculating the ceiling area which that person is entitled to hold, the area so transferred shall be taken into account and the land exceeding the ceiling area so calculated shall be deemed to be in excess of the ceiling area notwithstanding that the land remaining with him may not be in excess of the ceiling area. Under the explanation, for the purposes of this section the land shall be deemed to have been transferred if it has been transferred by act of the parties (whether by sale, gift, mortgage with possession, exchange, lease or any other kind of disposition made inter vivos ). It is significant to note that the land transferred on partition is not included in the deemed transfer of land laid down in the explanation. Therefore, the 1st and the 2nd respondents have failed to give effect to the provisions quoted above while determining the land in excess of the ceiling area of the 1st and the 2nd petitioners. It is undisputed that partition between the 1st and the 2nd petitioners was reported to the revenue authorities and mutation entries were effected as per entry No. 6110 and their holdings were shown separately. The 1st and 2nd respondents have committed an illegality in taking the entire extent of land as the holding of the family of the 2nd petitioner. They were required to calculate the area of the land which is in excess of the ceiling area after taking into consideration the partition and the extent of land that fell to the share of the 1st and the 2nd petitioners. They have failed to do so. Therefore, their calculation cannot be sustained in law. They were required to calculate the area of the land which is in excess of the ceiling area after taking into consideration the partition and the extent of land that fell to the share of the 1st and the 2nd petitioners. They have failed to do so. Therefore, their calculation cannot be sustained in law. ( 7 ) THE lands got at a partition of a Hindu Joint Family cannot be considered as a transfer as contemplated under S. 63 (10) of the Act. Therefore, the orders passed by the 1st and the 2nd respondents are wholly wrong and opposed to. law. Therefore, the contention of the learned advocate for the 1st petitioner that he is entitled to hold the land upto the extent of 54 acres is legally justified. ( 8 ) SURVEY Nos. 437, 279 and 393 which fell to the share of the 1st petitioner is comprised of 64. 04 acres. The land in excess of the ceiling area in so far as the 1st petitioner is concerned is 10. 04 acres The learned advocate for the 1st petitioner submitted that the 1st petitioner has no objection to surrender ten acres out 64. 04 acres. Accordingly, it is ordered. At a partition of the joint family, the total extent of land that fell to the share of the 2nd petitioner is 99. 10 acres. Out of which, he is entitled to 54 acres, in view of the fact that his family including himself consists of 5 members. After deducting 54 acres out of 99. 10 acres, the land in excess of the ceiling area is 45. 10 acres. Out of which his case is that the 4th respondent is in possession of 38 acres 29 guntas as a tenant. The contention is that the 4th respondent has filed an application in form No. 7 of the Act, for registration of occupancy rights. Therefore, these 38 acres out of the remaining 45 acres and odd shall abide the result of the proceeding pending before the Land Tribunal, Indi. Mr. The contention is that the 4th respondent has filed an application in form No. 7 of the Act, for registration of occupancy rights. Therefore, these 38 acres out of the remaining 45 acres and odd shall abide the result of the proceeding pending before the Land Tribunal, Indi. Mr. Albal, learned Advocate for the petitioners submitted, if the registration of occupancy rights in favour of the 4th respondent is rejected by the Land Tribunal, Indi, the area of land in possession of the 4th respondent as a tenant is a land in excess of the ceiling area of the 2nd petitioner and he is prepared to surrender the same. Further, it is submitted that after deducting 38. 9 acres out of 45. 10 acres the extent remaining further is 7 acres and 1 gunta which, it is further submitted that the 2nd petitioner is willing to surrender. Therefore, the impugned orders passed by the 1st and the 2nd respondents - at Exhibits 'c' and 'b' respectively fixing the area of the holding of the 2nd petitioner's family at 64 acres is hereby set aside and their holding as per the provisions of S. 63 (10) is refixed at 54 acres to the 1st petitioner and 54 acres to the 2nd petitioner. Further, in the event of success of the 4th respondent in her proceedings for registration of occupancy rights in respect of 38. 09 acres that area shall go to her as a tenant, otherwise that area of the land shall be surrendered by the 2nd petitioner. Accordingly, the impugned orders passed at Exhibits 'c' and 'b' are modified as above and they shall be permitted to hold their respective holdings. They are directed to express their choice of the survey numbers, which they are willing to surrender in excess of their ceiling area to the 2nd respondent. ( 9 ) FOR the reasons stated above, both these writ petitions are allowed to the extent they have succeeded in these cases. No costs. --- *** --- .