JUDGMENT - M.P. NANADE, J.:---This application under Article 227 of the Constitution of India is filed by the petitioners, challenging the order passed by the Authorities below arising out of the proceedings under the Maharashtra Agricultural Lands, (Ceiling on Holdings) Act, 1961 (Hereinafter referred to as the said Act). Few facts relating to the said proceedings are as under : 2. One Sonabai was the sole owner and land-lady of the agricultural lands. After the filing of the return, the Deputy Collector, Jalna, by his order dated September 6, 1966, came to the conclusion that the deceased Sonabhai was not the surplus holder within the meaning of the Ceiling Act. The learned Commissioner, Aurangabad Division, Aurangabad while exercising powers under sub-section (2) of section 45, of the Ceiling Act called for the records and proceedings of the said case and after considering the legality of that order remanded the case back to the learned Deputy Collector for de novo inquiry. After the remand to the Deputy Collector, notices were issued to Sonabai and it was reported that Sonabai was dead. So fresh proceedings against her legal representatives were initiated, treating her to be a land-lady. The heirs and the legal representatives of the deceased Sonabai appeared before the learned Deputy Collector, Jalna and they filed the written statement on January 7, 1971, contending, inter alia, that the proceedings against the deceased Sonabai be dropped and the individual holdings of the heirs of the deceased Sonabai should be considered. On January 30, 1971, the learned Collector, Jalna, passed an order that the proceedings started against Sonabai should be dropped, and a fresh case may be started against the legal representatives of the deceased landholder and notices may be issued calling upon the heirs and the legal representatives of the surplus holder to file a return under section 12 of the Ceiling Act. It is further stated "File may be closed". Thereafter the petitioners Nos. 1 to 4 filed the return under section 12 of the Ceiling Act. They alleged that Sonabai, during her live time gifted away or sold away certain pieces of lands. A list of these cases was filed showing the lands that have been disposed of by Sonabai. So far as the lands, Survey Nos. Thereafter the petitioners Nos. 1 to 4 filed the return under section 12 of the Ceiling Act. They alleged that Sonabai, during her live time gifted away or sold away certain pieces of lands. A list of these cases was filed showing the lands that have been disposed of by Sonabai. So far as the lands, Survey Nos. 97 and 95 are concerned, it was contended that they have been disposed of under the sale deeds or the gift deeds before August 4, 1959. The Deputy Collector by his order dated September 29, 1975, excluded the said two lands, Survey Nos. 95 and 97, from the holding of Sonabai. The real dispute in the said proceedings was in respect of lands Survey Nos. 20, 35/2, 96, 134/2, admeasuring 18 Acres 1 Gunthas, 16 A-35 Gs., 10 A-00 Gs. and 13 A-6 Gs. respectively. It was contended that Sonabai intended to gift away these four lands to one Sakharam. In pursuance of the desire of Sonabai. An application for sanction to the Deputy Collector. Under the old provisions of section 47 of the Hyderabad Tenancy Agricultural Lands Act, sanction for alienation was required and without the sanction the transaction of sale or gift-deed was illegal and void. Some affidavits have been filed in the said proceedings for sanction. It appears that no sanction was granted, but it appears that no further steps were taken by the parties concerned. There was no final sanction order passed, nor the gift-deed was registered in favour of the said Sahebrao. In the Pahani-Patra for 1955-56, the cultivation was shown by the said Sahebrao in respect of these lands. However, in the record of rights extracts, the name of Sahebrao was not mutates or there was no mutation proceedings in respect of the said lands in favour of Sahebrao. It was argued before the Deputy Collector that on the appointed date viz., January 26, 1962, the surplus holder Sonabai was not in possession of the said lands, and, therefore, the said lands could not be included in the holding of the deceased surplus-holder. The learned Deputy Collector negatived that contention and held that the total holding of Sonabai was 192 Acres and after the exclusion of 50 Acres 06 Gunthas, the area left with the surplus holder would come to 141 Acres 37 Gs. The learned Deputy Collector negatived that contention and held that the total holding of Sonabai was 192 Acres and after the exclusion of 50 Acres 06 Gunthas, the area left with the surplus holder would come to 141 Acres 37 Gs. The legal representatives of the deceased Sonabai in their return have shown members of the family of Sonabai as 10. But Sonabai had not in her return shown the names of the members of her family. However, it is an admitted fact that Sonabai had no direct descendents. The legal representatives of Sonabai had also not shown how the family of Sonabai consisted of 10 members. In view of the said facts, the learned Deputy Collector, gave benefit of the provisions of section 6 of the Ceiling Act. The ceiling prescribed for Ambad Taluka is 96 Acres, whereas, Sonabai Dadarao held 141 Acres 37 Gunthas of land. The learned Deputy Collector also directed to exercise their option under section 16 of the Ceiling Act. Accordingly, the Deputy Collector disposed of the matter holding Sonabai as surplus holder to the extent of 45 A. 37 Gs. The petitioner, feeling aggrieved by the said judgment and order passed by the learned Deputy Collector, Aurangabad, preferred an to the Maharashtra Revenue Tribunal, Aurangabad. The learned Member of the Tribunal confirmed the finding recorded by the learned Deputy Collector, Aurangabad and dismissed the matter by judgment and order dated October 30, 1975. Against the said judgment and order of the Revenue Tribunal, the present Special Civil Application is filed challenging the legality and the validity of the said decision. 3. Mr. R.M. Agarwal, the learned Counsel appearing for the petitioners, submitted that the holding of the heirs of Sonabai ought not to have been taken into account and there was no question of making an inquiry in respect of the holding of Sonabai, inasmuch as the property had devolved on the heirs of Sonabai on her death which had taken place in 1968. Secondly, it is argued by Mr. Agarwal that the Deputy Collector, Aurangabad, has himself passed an order on January 30, 1971, that the proceedings against Sonabai may be dropped and in view of that judgment all the proceedings thereafter are null and void and it is, therefore, that the orders passed by both the Ceilings Authorities below cannot be sustained. Lastly, it is urged by Mr. Agarwal that the Deputy Collector, Aurangabad, has himself passed an order on January 30, 1971, that the proceedings against Sonabai may be dropped and in view of that judgment all the proceedings thereafter are null and void and it is, therefore, that the orders passed by both the Ceilings Authorities below cannot be sustained. Lastly, it is urged by Mr. R.M. Agarwal that the deceased Sonabai Dadarao has parted with the possession in favour of Sahebrao Nana in respect of four pieces of lands referred to above before February 8, 1959, and it was, therefore, not open to the Ceiling Authorities to consider the legality or the correctness of the transfers made by Sonabai Dadarao in favour of Sahebrao Nana. In support of the contentions raised by Mr. R.M. Agarwal, he placed reliance upon a Division Bench Judgment of this Court in (Dadarao Kashiram v. The State of Maharashtra)1, 72 Bom. Law Reporter 246. It is not a disputed fact that Sonabai Dadarao was alive on the appointed date i.e. on January 26, 1962 as she died in the year 1968. On the appointed date she was, thus, the land holder of all these lands. She alone was the owner of these lands and the heirs and the legal representatives, the petitioners herein, had no right title or interest in the said lands or that they could claim as such any share in the said pieces of lands during the lifetime of Sonabai Dadarao. In view of the subsequent decision of the Supreme Court in (Raghunath Laxman Wani and others, Appellants v. The State of Maharashtra others)2, A.I.R. 1971 Supreme Court, 2137, in which it is held that under the scheme of the Ceiling Act, area is to be determined with respect to the appointed date, i.e. January 26, 1962. The Ceiling area so fixed would not be liable to fluctuations with the subsequent increase and decrease in the number of family members. From the above Supreme Court decision in Raghunaths case, it is clear that the determination of the holding of the surplus holder has got to be considered as on the appoint date, i.e. January 26, 1962. As stated earlier, on January 26, 1962, Sonabai Dadarao was alive and, therefore, her holding has to be considered in the context of the above provisions of the Ceiling Act. As stated earlier, on January 26, 1962, Sonabai Dadarao was alive and, therefore, her holding has to be considered in the context of the above provisions of the Ceiling Act. In my view, by implication the judgment of the Division Bench of this Court in Dadaraos case is overruled. Therefore, in view of the observations in the Supreme Court decision referred to above, it is only the holding of Sonabai Dadarao that will have to be taken into account and not that of the heirs and legal representatives of Sonabai. It is true that the Deputy Collector passed an order on January 30, 1971 closing the proceedings initiated against Sonabai Dadarao on her death. These proceedings cannot go on against a dead person and it was, therefore, thought by the Deputy Collector to close the said proceedings and to issue notices to the heirs and legal representatives of the deceased Sonabai. From the judgment of the Deputy Collector, it appears that the entire inquiry was held treating Sonabai Dadarao as a surplus holder. I do not find any error, or an error apparent on the face of the record in the matter of passing the order dated January 30, 1971 closing the said proceedings and in issuing the notice of the legal representatives of Sonabai Dadarao. The inquiry was required to be held under section 14 of the Ceiling Act and that for the said purpose notices to the legal representatives and heirs was necessary in order to complete the said inquiry under the provisions of the Ceiling Act. In view of the observations made hereinabove, the contentions raised by Mr. R.M. Agarwal must be held to be not maintainable. 4. The third submission of Mr. Agarwal is that the lands Survey Nos. 20 and 35/2, 96 and 134/2 of village Haste-Pokhari ought not to have been included in the holding of Sonabai, inasmuch as the proceedings for sanction to gift these lands in favour of Sahebrao was already initiated an affidavit in support of the application for sanction was filed showing the intention of Sonabai to gift the property in favour of Sahebrao. In fact, these proceedings remained in abeyance and no final order was passed till the death of Sonabai Dadarao. It is also an admitted fact that the gift-deed was not executed in favour of Sahebrao Nana. What is argued by Mr. In fact, these proceedings remained in abeyance and no final order was passed till the death of Sonabai Dadarao. It is also an admitted fact that the gift-deed was not executed in favour of Sahebrao Nana. What is argued by Mr. R.M. Agarwal is that Sahebrao Nana cultivated the lands right from 1955 and his name appeared in the revenue records, and in the Pahani Patraks that he cultivated these lands from 1955-56, and accordingly, the said transfer must be treated to be made by Sonabai in favour of Sahebrao Nana on or before August 4, 1959 and it is, therefore, argued that the said land cannot be taken into account in calculating the holding of the deceased Sonabai. In support of this contention, Mr. Agarwal strongly placed reliance upon the three unreported judgments of this Court, which are given below : 1. Special Civil Application No. 3682 of 1976, decided on November 4, 1976 by Hajarnavis J. (Smt. Bhagiratibai Reddy v. The State of Maharashtra)3, 1977 U.C.R. (Bom.) 14. 2. Sp. C.A. No. 2376 of 1968, decided on January 28, 1972 by the Division Bench consisting of Mr. Justice Desai and Mr. Justice G.N. Vaidya. (Kashinath Damodar Kad v. The State of Maharashtra)4, 1977 U.C.R. (Bom.) 266. 3. Spl. C.A. No. 2536 of 1968, decided on January 24, 1972, by the Division Bench consisting of Mr. Justice K.K. Desai and Mr. Justice G.N. Vaidya. (Kisan Gangaram Lunde v. Addl. Commr., Poona)5, 1977 U.C.R. (Bom.) 313. In the first case, Hajarnavis J., observed that the learned Deputy Collector, Land Reforms, and the Maharashtra Revenue Tribunal had committed an error in proceeding to examine the genuineness of the transactions instead of examining as to who was in possession on the appointed date. There is absolutely no evidence to show that the petitioner was in the possession of this land on the appointed date. In fact, the revenue records disclosed that the transferees were in possession of the lands transferred to them. That being so, it could not be said that the petitioner was holding those lands on the appointed date. On the basis of these observations, Mr. R.M. Agarwal contended that the possession of Sahebrao Nana must be taken into account and the said four lands were transferred to Sahebrao Nana before August 4, 1959. The said observations of Hajarnavis J. were in the context of the facts of that case. On the basis of these observations, Mr. R.M. Agarwal contended that the possession of Sahebrao Nana must be taken into account and the said four lands were transferred to Sahebrao Nana before August 4, 1959. The said observations of Hajarnavis J. were in the context of the facts of that case. In that case, there were three transfer by the mother in favour of her children and they were shown in possession of the lands much before the appointed date. In the said circumstances, it was observed that the holding of the petitioner should be considered having regard to the appointed day and it was held that the holder of the land was not in possession. 5. In the other two cases referred to above, the Division Bench of this Court had to consider a member of a family holding certain lands. The Proviso to section 6 of the Ceiling Act lays down 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 the family for such purpose. In the context of that it was observed that the legality of the transfer of such land is not to be considered Ceiling Authority. If it is held that the member of the family is in possession of a certain land, then the family cannot be benefited with the provisions of section 6 of the Ceiling Act to include that member in the list of members of the family. Mr. Agarwal read the observations of both the judgments out of context, is true that the observations support his contention. The observations are as under : "What the authorities under the Ceiling Act have to consider is whether a member of the family, as required by the proviso to section 6, is in possession of the lands in question as lawful owner or a tenant. There is no dispute that the mutations were made prior to August 4, 1959 and the transfers are effected before them and hence the transfers are not effected by the provisions of the Ceilings Act contained in sections 8, 9 and 10. It is manifest from the record of rights that Jagannath and Parashram have been cultivating the lands in Poona District. It is manifest from the record of rights that Jagannath and Parashram have been cultivating the lands in Poona District. The lands have been in their names as Khatedars after the mutation entries. The authorities under the Ceiling Act were not concerned with the validity of the transfers effected prior to August 4, 1959, because the entries relating to the said transfers were not challenged by any person other than persons whose names were entered in the said record of rights. Even assuming for a moment that the Commissioner can consider the validity of the transfers prior to August 4, 1959, neither Nathu nor his sons challenged the mutation. It was, therefore, not open to the Commissioner to consider the question of legality of the possession of the said land as owners by Jagannath and Parashuram and of the cultivation of the lands by them on January 26, 1962, when the Ceiling Act came into force. Even assuming that the observations made in the said judgment by the Division Bench is correct in the context in which it is argued before me by Mr. Agarwal, I find that the facts are quite different in the present case. Actually there is no transfer, legal or illegal, in favour of Sahebrao. There are no entries in the record of rights in favour of Sahebrao before August 4, 1959. Or even after August 4, 1959. It appears pencil entries have been made in the year 1962-63 or in 1963-64, and till that time no transfer is effected. Even there is no mutation entry in favour of Sahebrao in any of the records. In the circumstances the questions that arises is as to whether the right, title or interest of Sonabai has ceased to exist on August 4, 1959 or whether there was any transfer in favour of Sahebrao on or before August 4, 1959. From the record, it appears that no such transfer is made by Sonabai in favour of Sahebrao and that he was not found to be in possession of the said lands on August 4, 1959. In this view of the matter and the facts and history of the case, the authorities cited by Mr. Agarwal are not applicable to the facts of this case. In this view of the matter and the facts and history of the case, the authorities cited by Mr. Agarwal are not applicable to the facts of this case. In my view, the learned Member of the Revenue Tribunal and the Deputy Collector, land Reforms, Aurangabad, were right in coming to the conclusion that the disputed land Survey Nos. 20, 35/2, 96 and 134/2 of Village Haste-Pokhari, cannot be excluded from the holding of Sonabai Dadarao. 6. In the result, no interference is called for and this Special Civil Application must fail, and the rule is discharged with costs. -----