JUDGMENT - M.P. KANADE, J.:---This petition under Article 227 of the Constitution of India is filed challenging the order passed by the Maharashtra Revenue Tribunal dated May 26, 1976. 2. The proceedings arise out of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, (hereinafter for brevitys sake referred to as the Ceiling Act). The petitioner is a holder of certain lands. He filed a return under section 12 of the Ceiling Act showing the lands standing in his name and contended that the land Survey No. 210 cannot be classified under section 2(5)(b) of the Ceiling Act. He further contended that the mother was entitled to a share in the family property. Entire agricultural lands are ancestral properties, and therefore, the mother will be entitled to a share. 3. The Land Determination Tribunal No. 1 at Kopargaon, District Ahemadnagar made inquiries and after considering the evidence on the record came to the conclusion that the petitioners holding comes to 30 Acres 20 Gunthas only. It was further revealed in the inquiry that a sugarcane block of 10 Acres 20 Gunthas is available to the petitioner. The Surplus Land Determination Tribunal converted the agricultural land into dry lands and came to the conclusion that the total holding thus converted in terms of dry crop area is 65 acres 18 gunthas. In the result, by an order and judgment dated February 27, 1976, the petitioner was declared surplus holder of an area of 10 acres 34 gunthas, and while considering the choice for retention of land, the Tribunal ordered 10 acres 34 gunthas, to be delimited from Survey No. 206/1+ 2 from Village Rahata, held by the petitioner. 4. The petitioner feeling aggrieved by the aforesaid judgment and order passed by the Surplus Land Determination Tribunal, preferred an appeal to the Maharashtra Revenue Tribunal. The said appeal was also dismissed by a judgment and order dated May 26, 1976. The petitioner has filed the present Special Civil Application challenging the said order under Article 227 of the Constitution of India. 5. Mr. Bhadti, the learned Counsel appearing on behalf of the petitioner, submitted that both the authorities below committed an error apparent on the face of the record in refusing to consider the share of the mother of the petitioner. Mr. 5. Mr. Bhadti, the learned Counsel appearing on behalf of the petitioner, submitted that both the authorities below committed an error apparent on the face of the record in refusing to consider the share of the mother of the petitioner. Mr. Tipnis, who appears on behalf of the State, strenuously argued that the mother had no right in the property left by her husband. The petitioners father died in the year 1928 or thereafter, and therefore, she had only a right of maintenance and she could not have a share in the ancestral property of the petitioner. Mr. Tipnis also contended that there is clear admission made by the petitioner that the lands are getting the benefit of the canal water, and therefore, both the authorities rightly held that the lands are liable to be converted into dry land area and the conversion made thereof is perfectly valid. 6. There is no dispute that the mother of the petitioner is alive and the property held by the petitioner is ancestral property. Under the provisions of section 3(3)(i) it is laid down that in the land held by a family of which the person is a member, the share of each member of the family shall be determined so that each member who is entitled to a share on partition, shall be taken to be holding separately land to the extent of his share as if the land had been so divided and separately held on the relevant date. The Surplus Land Determination Tribunal will have to consider as to whether the mother of the petitioner is a member of the family. Secondly, it will have to consider as to whether she had a share in the joint family property, and thirdly if they are joint sharers then a partition has got to be effected in accordance with the provisions of Hindu Law and the shares will have to be determined under the provisions of section 3(3)(i) of the Ceiling Act. There is no dispute that the petitioners mother is a member of the family. There is likewise no dispute that if a partition takes place between other members of the family, then the mother will have a share in the joint family property to the extent of the share which the son is entitled to hold. There is no dispute that the petitioners mother is a member of the family. There is likewise no dispute that if a partition takes place between other members of the family, then the mother will have a share in the joint family property to the extent of the share which the son is entitled to hold. There was no occasion to claim partition in the family because the father of the petitioner was dead. Now it will have to be considered as to whether she is entitled to have a share in the joint family property held by the petitioner. Explanation I to section 6 of the Hindu Succession Act, lays down that : "For the purposes of this section, the interests of a Hindu Mitakshara Co-parcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not." A legal fiction has been created under Explanation I to section 6 of the Hindu Succession Act, that if a partition is to be effected, the share of the deceased will be taken into account as if he died just before the partition, and his share shall be divided in accordance with the new provisions of the Hindu Succession Act. In the present case, the mother will be entitled to claim a share in the ancestral property held by the petitioner, inasmuch as she will have one-third share in the ancestral property. One share will be that of the deceased father of the petitioner, the second will be that of the mother and the third will be that of the petitioner. Again the share of the deceased father will have to be divided in accordance with law and in that position, the mother and the son will share equally. Thus, the petitioner will have only half the share in the property held by him from his father. 7. Both the authorities below have thus erred in refusing to take into consideration the share of the mother while determining the holding of the petitioner. In view of the above observations, the Special Civil Application will have to be allowed. Thus, the petitioner will have only half the share in the property held by him from his father. 7. Both the authorities below have thus erred in refusing to take into consideration the share of the mother while determining the holding of the petitioner. In view of the above observations, the Special Civil Application will have to be allowed. The order passed by the Maharashtra Revenue Tribunal dated May 26, 1976 and that of the Surplus Land Determination Tribunal, Kopargaon, are set aside and it is declared that the petitioner is not a surplus land holder within the meaning of the provisions of the Ceiling Act. Rule made absolute. 8. Having regard to the facts and circumstances of the case, there will be no order as to costs. -----