S.N. Phukan, J. — Writ petitioner has assailed the order of the learned Collector, Cachar dated 3.5.76 passed in Land Ceiling Case No. 7 of 1975-76 and also the order dated 7th August, 1982 passed by the Government rejecting the revision petition filed by the petitioner against the aforesaid order under section 7 (6) of the Assam Fixa­tion of Ceiling on Land Holdings Act, 1956, for short 'the Act'. 2. The learned Collector served a notice dated 3.3.76 under section 7 pf The Act on the petitioner enclosing a draft statement prepared under the Act showing total area of 86 Bighas and odd in different dags and mouzas and petitioner was asked to show cause. The petitioner show*d cause stating, inter alia, that he sold by a registered sale deed dated 20.10.71, 27 Bighas 9 Kathas 1 Ch. of land to his two married major sons living separately and having separate cultivation. By the impugned order, the learned Collector rejected the prayer of the petitioner and assessed the ceiling surplus land as 36 Bs. O K. 2Ch. 3. Mr..Laskar, learned counsel for the petitioner has urged that the impugned order of the Collector is bad in law, inasmuch as the learned Collector did not consider the case properly regarding the fact that two major sons were living separately. The learned counsel has further urged that the learned Collector also overlooked the fact that at the relevant time the ceiling limit was 75 Bighas. 4. Section 4 of the Act lays down the ceiling on existing holding. When the Act was enacted in the year 1956 the limit was 150 Bighas in the aggregate. This section was amended by Assam Act VIII of 1971 which came into force from 27.3.1971 and this limit of 150 Bighas was reduced to 75 Bighas. This section was further amended in the year 1975 by the Assam Act IX of 1975 giving retros­pective effect from 13th October, 1972 and the ceiling limit was fixed at 50 bighas. Therefore, on the date the land was transferred to bi« two' sons i.e. on 20.10.71 the ceiling limit was 75 Bighas. The conten­tion of Mr. Laskar is that this aspect of the matter was not considered by the leaned Collector has considerable force. 5. To appreciate the point urged by Mr. Therefore, on the date the land was transferred to bi« two' sons i.e. on 20.10.71 the ceiling limit was 75 Bighas. The conten­tion of Mr. Laskar is that this aspect of the matter was not considered by the leaned Collector has considerable force. 5. To appreciate the point urged by Mr. Laskar regarding tran­sfer of the land1 by registered deed to two major sons of the petitioner it is necessary to consider the definition of 'Family' as defined in section 3 (d) of the Act which runs as follows : 3 (d) - 'Family' means a family consisting of any one or more or all of the following viz :- (i) Husband, (ii) wife, (iii) minor, children and also includes a joint family. Explanation- "Joint Family' means a family of which the members are descendants from a common ancestor and have a common mess and shall include wife or husband, as the case may be, but shall not "include married daughters, married sons and their children; Provided that a family consisting of father and/ or mother, sons and/ or unmarried daughters holding lands jointly shall be presumed to be joint in spite of any one or more having a separate mess We quote below definition of "person” as contained in clause (j) of section 3 of the Act. "Person includes an individual, a family, a joint family, a trustee, a company, a body corporate, a partnership firm, a society or an Association of individuals whether incorporated or not." 6. Under section 4 of the Act no person shall be entitled to hold land beyond the ceiling limit. Persons includes a joint family as defined above. From the explanation to the definition of the family, a joint family shall exclude married daughters, married sons and their children. Of course under the proviso to the said explan­ation, there is a presumption that a family consisting of father, mother, sons, unmarried daughters holding land jointly shall be presumed to be joint in spite of the fact that any one or more has a separate mess. But this presumption is rebuttable and the onus is on the person who claims the benefit of not being a member of the joint family to rebut this presumption. 7. But this presumption is rebuttable and the onus is on the person who claims the benefit of not being a member of the joint family to rebut this presumption. 7. From reading definition of 'Family', 'Person' and section 4 of the Act, before coming to the conclusion regarding ceiling surplus of,, land the Collector in case of joint family has to exclude the land held by married sons. But, in case Collector comes to the finding that lands are held jointly by father and/ or mother, sons and/ or unmarried daughters, he can presume which is rebuttable, that they are all members of joint family in spite of the fact that any one or more have a separate mess. If the person can show that though lands are held jointly by them they are not members of the joint family such land should be excluded while determining ceiling surplus land of a person. In the case in hand Collector failed to do so. 8. From the impugned order we also find that the learned Collec­tor only on the basis of the above proviso to the. explanation of the definition of ''Family" rejected the prayer of the petitioner. Even applying the presumption, the learned Collector did not come to a definite finding that the petitioner and his two sons were holding the lands jointly. In our opinion, the learned Collector erred in law. The order passed by the Government on 7th August, 1982 is not at all sustainable as no reason has been given. 9. For what has been stated above we remand the case to the learned Collector after setting aside both the impugned orders passed by the Collector and the State Government. The learned Collector shall decide the matter in terms of this judgment and after giving an opportunity to the petitioner more particularly to rebut the presumption regarding joint family. With the above direction petition is disposed of No costs.