1. This appeal and another appeal No. 558 of 2004 between same parties were to be heard and decided together. Accordingly, today I have completed hearing in both the appeals and by separate order, because of limited nature of controversy involved therein, second appeal No. 558 of 2004 has been disposed of. Though in that appeal, it has been held that Section 30 of the Hindu Succession Act protected deceased Sakharam who has executed Will of his joint undivided family property, still the Will has not been accepted to be legal and valid, and therefore, judgment and decree of lower appellate Court has been maintained.

2. This second appeal is filed by original plaintiffs in regular civil suit No. 61 of 1996. Suit filed by them was for declaration, partition and separate possession. Trial Court decreed the suit partly and the original defendants then filed regular civil appeal No. 101 of 2001 on 20/8/2004. First Ad hoc Additional District Judge,

Bhandara has partly allowed that appeal. Thereafter this second appeal has been admitted on 14/3/2006 by formulating following question as substantial question of law:

(1) Whether unmarried illegitimate daughters on the date of coming into force of Maharashtra Amendment Act, 1994 [which has came into force from 22/6/1994], have an equal share as that of a male coparcener by virtue of Section 29-A [Maharashtra Amendment Act] read with Section 16 of Hindu Marriage Act?

3. For the purposes of understanding facts, family tree which is not in dispute needs to be given here:

BULUCHA NATTHA

I

KANHU

I

Tukaram Sakharam

(died on 25/1/95)

I

Rukhma @ Raiwanti Gayabai

(defdt. 2) wife (Pltff.) - wife

I

Gopal (son ) Mukhklabai

defdt.1 defdt.3

Ruplata

daughter

Pltff. No.4

Madapika

daughter

Pltff. No.5

Vijutai

daughter

Pltff. No. 6

Bharti

daughter

Pltff. No. 2

Sushma

daughter

Pltff. No. 3

4. Gayabai-plaintiff No. 1 claimed to be second wife of Sakharam and plaintiff Nos. 2 to 6 claimed to be children born to Gayabai from Sakharam. Plaintiff Nos. 2 and 3 were at the relevant time unmarried daughters. Rukhmabai-defendant No. 2 in the suit was the first wife of deceased Sakharam and defendant No. 1 Gopal is son born to her while defendant No. 3 Mukhklabai is defendant No. 3 -daughter born to her from Sakharam. The property came to Sakharam from his father Kanhu and after partition between brother Tukaram and Sakharam. Sakharam died on 25/01/1995. On 14/3/1996 Gayabai and her children filed regular civil suit No. 61 of 1996 and claimed their share in agricultural lands and also house property. There is no dispute in this second appeal about the said property or its description.

Gayabai and plaintiffs had claimed half share in the suit properties. Gayabai contended that as defendant No. 2 Rukhmabai could not conceive from Sakharam, Sakharam married with her in the year 1961 and then the daughters as mentioned above were born to her. She stated that during life time of Sakharam, they were residing with him and after his death, defendants obstructed cultivation of plaintiffs. Plaintiffs also received notice from Talathi through which they learnt about Will deed dated 23/2/1993 executed in favour of defendant No. 1-Gopal. She challenged said Will as fabricated document and claimed partition. The trial Court framed five issues and held that Gayabai and other plaintiffs have share in suit property and were entitled to partition and separate possession of their share. It also directed preparation of preliminary decree and sent precept to the Collector for partition in agricultural land. It directed appointment of Commissioner for partition of house property. The trial Court then gave 9/32 share to plaintiff Nos. 2, 3 & defendant No. 1each. It gave 1/32 share in suit property to defendant Nos. 2, 3 and plaintiff Nos. 4, 5 and 6.

5. The defendants then filed regular civil appeal No. 101 of 2001 and appellate Court found that marriage of Gayabai with Sakharam in the year 1961 was proved and it further found that plaintiff Nos. 2 to 6 were born t