SAU. MUKTABAI BHAKTADAS ROHANKAR Vs. KESHAV KISAN DHANDRE

JUDGEMENT

(1.) This second appeal is directed against judgment and order dated 20.1.2007, passed by the learned Principal District Judge, Gadchiroli, in Regular Civil Appeal No.19 of 2004, whereby the appeal was allowed partly, which arose from judgment and order dated 29.7.2004, passed by the learned Civil Judge Junior Division, Gadchiroli, in Regular Civil Suit No.56 of 1999, whereby the suit was decreed.

(2.) It appears that the learned Principal District Judge, while partly modifying the decree passed by the learned trial Court, held that the plaintiffs/sisters can claim partition in the suit property and while fixing the shares upon assumption, the learned Judge held that three sons would get 1/4 + 1/32 = 9/32 each share while daughters would get equal shares, but, after applying the concept of notional partition within the meaning of Sub section (1) of Section 6 of The Hindu Succession Act, 1956 (for short, "the Act"), this conclusion recorded by the first Appellate Court, disturbed the decree passed by the trial Court. Learned Counsel appearing for appellants submits that the only substantial question of law which is to be answered in this appeal is "whether the first appellate Court had any legal justification to disturb the decree passed by the trial Court

(3.) Learned counsel appearing for the appellants submits that the suit property was admittedly self acquired property belonging to late Kisan who died intestate. According to him, Kisan died in the year 1970 and left behind two sons namely defendant No.1/Keshav and defendant No.2/Wasu. They were from the first wedlock while from the second wife Kisan had one son and five daughters. Thus, there were eight sharers, falling in Class-I of the Act and except these eight sharers, there were no any other Class-I heir left behind by Kisan as his two wives had pre-deceased him. Under these circumstances, it is submitted that each of the eight share holders had 1/8 share in the suit property and accordingly, the plaintiffs sharers/sisters who were deprived of their shares had instituted a suit for partition for their shares upon partition.