JUDGMENT:- This appeal is heard finally at the preliminary stage and is being decided on consideration of the single substantial question of law involved therein.

2. There is no dispute about the relationship between the parties. There is also no dispute about the fact that the suit properties comprising of three (3) agricultural lands and a house property are the ancestral properties of the family and were held as such by deceased Dashrathsing. He died in 1998. Both the plaintiffs (Respondents) are the married daughters of deceased Dashrathsingh. They were born to his first wife by name Chandrakaur. There is no dispute about the fact that after death of said Chandrakaur, he had performed second marriage with the defendant No.1 (appellant No.1). The defendants Nos.2 and 3 (appellants No.2 and 3) are the sons born out of the second marriage.

3. The plaintiffs’ case in the trial Court was that they are entitled to claim partition and separate possession in respect of the suit properties as the legal heirs of deceased Dashrathsing. They demanded partition but the step mother i.e. the defendant No.1 declined to effect the same. Consequently, they sought partition and separate possession to the extent of their 1/5th share each. They also sought mesne profits of Rs.2,000/- per year.

4. By filing their written statement (Exh.22), the defendants (appellants) disputed right of the plaintiffs to seek partition. They contended that the plaintiffs were not concerned with the suit properties which were self-acquired by Dashrathsing. They contended that the plaintiffs were married long back and, therefore, had no right to claim partition and separate possession. They submitted that after death of Dashrathsing, mutation entries were effected in their favour and thus they have acquired ownership of the suit properties. They sought dismissal of the suit with compensatory costs of Rs.5,000/- (Rupees five thousand).

5. The parties went to trial over issues struck by the trial Court vide Exh.23. The trial Court came to the conclusion that the plaintiffs were entitled to seek partition in respect of the suit properties as sought. The trial Court also held that they were entitled to recover Rs.8,000/- (Rupees eight thousand) towards damages and wrongful occupation of the suit properties to the extent of their due shares for the period between 1998 till 2000. Consequently, the suit came to be decreed. The first appellate Court confirmed the partition decree while dismissing the Civil Appeal No.801 2005.

6. The substantial question of law involved in this appeal is as follows:

“Whether in the facts and circumstances of the present case, the plaintiffs (Respondents) were entitled to separate shares by way of partition though they were married before 1994 and Whether the legal fiction created by amended Hindu Succession (Amendment) Act, 2005 is retrospectively applicable ?”

7. Heard counsel.

8. Mr. Brahme S. P. would submit that the succession had opened in the year 1998 when Dashrathsing died. He would submit that juxta-position at the time of the death of Dashrathsing ought to be considered. He contended that when there was no amendment of the Hindu Succession Act, at the relevant time, the division of shares was immediate without deference of the rights. He contended that the plaintiffs were the married daughters of deceased Dashrathsing and because their marriages were performed before commencement of the Maharashtra Amendment to the Chapter II of the Hindu Succession Act, 1956 vide Maharashtra Act No.39 of 1994, which came into effect on 22.6.1994, they were not entitled to any separate share in the ancestral properties of Dashrathsing. He seeks to rely on certain observations in “Lata @ Bhagyashree Arunkumar Sangole Vs. Madhukar Rajaram Ganjare & others”, 2008(6) Bom.C.R. 445 : [2008(5) ALL MR 302] and “Smt. Bagirathi and others Vs. S. Manivanan and Another”, (AIR 2008 Madras 250 : [2008(6) ALL MR (JOURNAL) 36]. He argued that on, the death of Dashraths

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