Judgment : (B.R. Gavai, J.) 1. The appeal takes exception to the judgment and order passed by the learned Single Judge dated 29th July, 1998 thereby dismissing the petition filed by the present appellants challenging the order passed by the respondent no.2 by which they had challenged the order dated 15 th June, 1994 passed by the respondent no.3 declaring 63 acres of land of the appellants as surplus land. 2. One Dadaji Deorao Mahalle is the original land owner. He had his wife Kausalyabai and two sons namely Janrao and Haribhau. It appears that in a Ceiling Case No.93/60-A(5)/1964-65 it was pleaded by the appellants that there was a partition amongst them, however, the learned Surplus Land Determination Tribunal vide order dated 1st January, 1988 held that the said partition was hit by the provisions of Section 8 of the Maharashtra Agricultural Lands (Ceilings on Holdings) Act, 1961 (hereinafter for short ‘Act’). It was, therefore, held that the land holder Dadaji Deorao Mahalle (since expired) was entitled to hold 108 acres of land and 0.50 acres was declared to be surplus. It appears that being arrived thereby the legal heirs of the said Dadaji, preferred a revision before the learned Maharashtra Revenue Tribunal. The learned MRT vide judgment and order dated 14th December, 1988 remanded the matter for the consideration afresh to the Sub-Divisional Officer. On remand, the S.D.O. Vide order dated 24th August, 1992 upheld the order of the then S.D.O. dated 1st January, 1988. Vide corrigendum dated 26th February, 1993 the surplus land was declared to be 12.84 acres. However, it appears that after the amendment to the said Act, which came into effect from 2nd of October, 1975 fresh returns were filed by the land holders. 3. The respondent no.3 vide order dated 30 th September, 1993 held 30.50 acres land as surplus. Vide another order dated 5th January, 1994 it was held that the holding of said Dadaji was less than ceiling and as such no surplus land was declared. Again vide order dated 15th Jun, 1994 nine acres of land came to be declared as surplus. It appears that suo-motu a revision was taken by the respondent no.2. The respondent no.2 vide impugned order dated 30th August 1997 held 63 acres of land as surplus. Being aggrieved thereby, a petition was preferred before the learned Single Judge of this Court. It appears that suo-motu a revision was taken by the respondent no.2. The respondent no.2 vide impugned order dated 30th August 1997 held 63 acres of land as surplus. Being aggrieved thereby, a petition was preferred before the learned Single Judge of this Court. The said petition was dismissed. Being aggrieved thereby, the present appeal. 4. Mr. Gorde, the learned Senior Counsel appearing on behalf of the appellants, submits that the view taken by the Additional Commissioner that there is a surplus land is contrary to the provisions of Section 3 of the said Act. The learned Senior Counsel submits that in view of the provisions of Sub-Section (3) of Section 3 of the said Act, it will have to be deemed that there is a partition in the family amongst major members and each member would be entitled to retain the land as per the permissible ceiling and only after doing so if there remains any land in excess, the same can be declared as surplus. The learned Senior Counsel relies on the judgment of the Division Bench of this Court in case of Indubai w/o Mahadeorao Mahajan and another V/s. the State of Maharashtra reported in 1987 Mh.L.J. 974 , judgment of learned Single Judge of this Court in case of Kamlabai w/o Govindrao and others V/s. State of Maharashtra reported at 1977 Mh.L.J. 450 and in case of State of Maharashtra V/s. Anjanabai Shankarrao Deshmukh and others reported in 2004 (4) Mh.L.J.503 . 5. Mr. Pathan, the learned Assistant Government Pleader, on the contrary, submits that the Additional Commissioner has rightly passed the order. He submits that once there was a partition in a family of Dadaji, his sons Haribhau and Janrao were not entitled to any share in his land and therefore, the order passed by the learned S.L.D.T. has been rightly passed. The learned AGP relies on the judgment of Rambhau V/s. State of Maharashtra reported in 1995 Supp. (3) SCC 74 . The learned AGP relies on the judgment of Rambhau V/s. State of Maharashtra reported in 1995 Supp. (3) SCC 74 . The learned AGP further relies on the judgment of the learned Single Judge of this Court in case of Ashokchand s/o Manakchand Tated and others V/s. the State of Maharashtra reported in 1987 (3) Bom.C.R. 301 in support of the proposition that even if there is a conflict between the provisions of Hindu Succession Act and the Maharashtra Agricultural Lands (Ceilings on Holdings) Act, 1961, the provisions of the latter Act would prevail. 6. For appreciating the rival submissions, it will be appropriate to refer to the Sub-clause (11) and (11-A) of Section 2, Sub-sections (1) and (3) of Sections 3 and Sub-section (1) of Section 4 of the said Act, which read thus: “(11) family includes, a Hindu undivided family, and in the case of other persons, a group or unit the members of which by custom or usage, are joint in estate or possession or residence. (11-A) family unit means a family unit as explained in Section 4. 3. Prohibition on holding land in excess of ceiling area and area in excess of ceiling to be surplus lands:- (1) Subject to the provisions of this Chapter and Chapter III, no person or family unit shall, after the commencement date, hold land in excess of the ceiling area, as determined in the manner hereinafter provided. Explanation.- A person or a family unit may Hold exempted land to any extent. ..... Explanation.- A person or a family unit may Hold exempted land to any extent. ..... (3) Where any land- (a) is held by a family of which a person is a member, (b) is held in or operated by a co-operative society of which a person is a member, (c) is held by a person jointly with others, (d) is held by a person as a partner in a firm, and the holding of such person or of a family unit of which such person is a member (including the extent of share of such person if any, in the land answering to any of the descriptions in clauses (a), (b), (c) or (d) above) exceeds the ceiling area on or before the commencement date or on any date thereafter (hereafter referred to as the relevant date), then for purpose of determining the ceiling area and the surplus land in respect of that holding, the share of such person in the land aforesaid shall be calculated in the following manner:- (i) 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; (ii) in the land held in or operated by a co-operative society or held jointly with others or held by a firm, the share of the person shall be taken to be the extent of land such person would hold in proportion of his share in the cooperative society, or his share in the joint holding or his share as partner in the firm, as if the land had been so divided and separately held on the relevant date. 4. Land held by family unit:- (1) All lands held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. 4. Land held by family unit:- (1) All lands held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. Explanation - A ‘family unit’ means, (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses.” 7. It can, thus, be seen that a ‘family’ includes a Hindu Undivided Family and includes all other persons of a group or unit, the members of which by custom or usage are joint in estate or possession or residence. A ‘family unit’ means a family unit, as explained in Sub-section (1) of Section 4 of said Act and all lands held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. The ‘family unit’ has been defined to mean a person and his spouse (or more than one spouse) and their minor sons and their minor unmarried daughters, if any, or where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters of such deceased spouses, or where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. Sub-section (1) of Section 3 prohibits a person or a family unit from holding land in excess of the ceiling area, as determined in the manner provided therein. Sub-section (1) of Section 3 prohibits a person or a family unit from holding land in excess of the ceiling area, as determined in the manner provided therein. Sub-section (3) of Section 3 provides that where any land is held by the family, of which a person is a member and the holding of such person or of a family unit of which such person is a member exceeds the ceiling area on the relevant date, then for purpose of determining the ceiling area and the surplus land in respect of that holding, the share of such person in the land aforesaid shall be calculated in the manner provided therein i.e. when a person is a member of a family, the share of each member of the family would be determined so that each member would be entitled to his 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. It can be, thus, clearly seen that the said section specifically makes a provision for ‘deeming partition’ of each member and a family would be taken to be holding the land separately to the extent of his share as if the land is divided and separately held on the relevant date. 8. Learned Single Judge of this Court in case of Kamlabai (supra) had an occasion to consider the said provisions, wherein the observations in paragraph 6 are as under : “3. The words would hold and as if the land has been so divided and separately held on the relevant date clearly indicate that the partition contemplated is not an actual partition by metes and bounds; but a notional partition to be legally conceived only for the purpose of calculating the holdings of the family unit or of the person.” 9. The Division Bench of this Court also had an occasion to consider the said provisions in case of Indubai (supra) wherein the observations in paragraph 3 are as under: “3. The Division Bench of this Court also had an occasion to consider the said provisions in case of Indubai (supra) wherein the observations in paragraph 3 are as under: “3. It is clear from the provisions of sub-section (3) of Section 3 that when any land is held by a family of which the person concerned is a member then in the land held by the family of which he is a member, share of each member of the family has to be determined so that each member, who is entitled to a share on partition, shall be taken to be holding separately the land to the extent of his share as if the land has been so divided and separately held on the relevant date. It is also clear from the aforesaid provision that it creates a fiction as it contemplates a notional partition by metes and bounds on the relevant date. In out view, the phraseology used therein clearly shows that if the notional partition were to take place by metes and bounds on the relevant date, the share of the member concerned of the family has to be found out on such a notional partition on that date, which share according to the said sub-section thus contemplates notional partition by metes and bounds so that the total holding of the member of the family concerned can be determined for the purpose of the Ceiling Act.” 10. In the present case, undisputedly, on the relevant date i.e. on 2nd of October, 1975 the family consisted of Dadaji, his wife and two major sons Janrao and Haribhau who were aged 33 and 29 years respectively on the relevant date. Since said Janrao and Haribhau were not minor on the relevant date but were major they could not be held to be a part of a family unit of Dadaji and as such in view of Sub-section (3) of Section 3 all the four members of the family i.e. Dadaji, Kausalyabai, Janrao and Haribhau will be deemed to have partitioned property on the relevant date and would be entitled to hold the land falling to share of each of them. Undisputedly, since the land standing in the name of Dadaji and Kausalyabai was 126 acres, the share of each of them will be 31.5 acres. Undisputedly, since the land standing in the name of Dadaji and Kausalyabai was 126 acres, the share of each of them will be 31.5 acres. However, as Dadaji and Kausalyabai formed a part of same ‘family unit’, they would not be entitled to retain the land more than permissible ceiling which is undisputedly 54 acres. The holding of family unit of Dadaji and Kausalyabai would come to 63 acres, but they would not be entitled to hold 9 acres of surplus and so would be entitled to hold only 54 acres. 11. We, therefore, find that the order passed by the respondent no.3 dated 15th June, 1994 was passed after correctly understanding the position of law. We, however, find that the respondent no.2 has totally erred in passing the order while allowing the revision. The respondent no.2 goes on a premise that since the property was partitioned between Dadaji and Kausalyabai, Haribhau and Janrao in the year 1962, Janrao and Haribhau were not entitled to be a member of a family of Dadaji. The respondent no.2 has failed to take into consideration that the partition of 1962 was not accepted by the Sub-Divisional Officer since according to the S.D.O. the same was hit by Section 8 of the said Act. In that view of the matter, the reference to the said partition was totally unwarranted. It seems that the respondent no.2 appear to have been confused between ‘family’ and a ‘family unit’. The concept of family unit is different from family as could be seen from the clause (11) and (11-A) of Section 2 of the said Act. The ‘family unit’ consists of spouse and minor children and ‘family’ , as contemplated under Section 3 of the said Act, will have to be construed as an Hindu Undivided Family. However, it appears that the respondent no.2 has ignored this material aspect. We further find that the learned Single Judge has also not taken into consideration this aspect of the matter. 12. Insofar as the judgment in case of Rambhau V/s. State of Maharashtra (supra), cited by the learned Assistant Government Pleader is concerned, we find that the said judgment rather than supporting the case of the respondents would rather support the case of the appellants. In the said judgment, it was held that language of the section being clear it does not require any interpretation or construction. In the said judgment, it was held that language of the section being clear it does not require any interpretation or construction. Insofar as the judgment of the learned Single Judge in case of Ashokchand V/s. State is concerned, in the said case an argument was advanced that if there is conflict between Hindu Succession Act and the provisions of Section 3(2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 the provisions of Hindu Succession Act would prevail. Negativing the said contention, it was held that the provisions of Section 3(2) of the said Act, will have to be given effect to. The said issue is not for consideration before this Court in the present matter. 13. In that view of the matter, we find that the judgment and the orders passed by the respondent no.2 so also the learned Single Judge are not sustainable in law. 14. The impugned judgment dated 29th of July, 1998 passed by the learned Single Judge so also by the learned Additional Commissioner, Nagpur Division, Nagpur dated 30th August, 1997 are quashed and set aside. There shall be no order as to costs.