JUDGMENT - B.B. VAGYANI, J.:---Heard.

2. This second appeal is directed against the judgment and decree passed by the 3rd Additional District Judge, Beed in Regular Civil Appeal No. 153 of 1991 filed by present appellants, who are original defendants Nos. 1 and 2 in Regular Civil Suit No. 287 of 1978 filed by respondents Nos. 1 to 3 (original plaintiffs).

3. The facts giving rise to this second appeal are as under :

Syed Fazal was owner of the land bearing Serial No. 48-AA of village Brahmagaon, taluka Georai, District Beed. The suit land Serial No. 48-AA admeasuring 11 acres 32 qts. Syed Fazal died about 17 years before institution of the Regular Civil Suit No. 287 of 1978 leaving behind his two widows Chandbi and Sahebbi. Original plaintiffs Nos. 1 to 3 are the daughters of Chandbi. After the death of Syed Fazal, his widows Chandbi and Sahebbi become owners of the suit land along with the plaintiffs. Chandbi and Sahebbi are no more alive. The plaintiffs claim that after the death of Chandbi and Sahebbi, they came into possession of the suit land. The appellants offered obstruction to their possession and, therefore the plaintiffs filed Regular Civil Suit No. 287/1978 in the Court of Civil Judge, Junior Division, Georai for grant of relief of perpetual injunction.

4. The appellants appeared in the said suit and resisted the suit claim on the ground that they are lawful tenants of the suit land. A specific issue was framed in this behalf by the trial Court and the same was referred to Tenancy Court for its finding. The reference was answered in the negative. The decision of the Tenancy Court was maintained upto the High Court. The tenancy plea raised by the appellants was rejected throughout.

5. The plaintiffs made a grievance during pendency of the suit that the appellants dispossessed them. Therefore, they claimed possession of the suit land by making appropriate amendment in the plaint. The appellants also amended their written statement and contended that the plaintiffs being the daughters of Syed Fazal, they are entitled to 2/3rd share in the suit land and they are entitled to get remaining 1/3rd as a residuaries. Ibrahim (appellant No. 1) is the nephew of Syed Fazal. Dilawar (appellant No. 2) is the son of Ibrahim. Having noticed the admission on the part of the appellants with regard to 2/3rd share, the plaintiffs introduced amendment in the plaint and prayed that the suit land be partitioned and separate possession of 2/3rd share be given to them.

6. The trial Court partly decreed the suit. The trial Court held that the plaintiff Nos. 1 to 3 being daughters of Syed Fazal, are entitled to get 2/3rd share in the suit land in addition to 1/8th share of Chandbi who is no more alive. The trial Court thus awarded 21/24th share to the plaintiffs and allotted remaining 3/24th share to the present appellants. While partly decreeing the suit, the learned trial Court observed that Sahebbi married second time and, therefore, she is not entitled to get any share in the suit land.

7. Feeling aggrieved by the judgments and partial decree passed by the Civil Judge, Junior Division, Georai, the original defendants filed Regular Civil Appeal No. 153 of 1991. The 3rd Additional District Judge, Beed, by his order dated 12-6-1997, dismissed the appeal filed by the original defendants. Feeling dissatisfied with the dismissal order passed by the 3rd Additional District Judge, Beed, the original defendants have filed this second appeal.

8. While admitting the second appeal, this Court formulated following substantial questions of law :

1. The most fatal mistake committed by the Court below is that the plaintiffs/respondents are daughters inter se of the deceased Syed Fazal as daughters, they are entitled to 2/3rd share as per Item No. 7 regarding daughter and the second column of table of shares (Sunni Law) as per table of shares (page 48-A annexed to section 63 of Mulla's Principles of Mohammedan Law, 18th Edition), they cannot get more than 2/3r

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