1. Heard finally by consent of the learned Advocates appearing for the parties.

2. In Special Civil Suit No.38 of 1979 the learned Civil Judge, Senior Division, Amravati passed a decree for partition and separate possession on 9-9-1986 with all other consequential orders. The plaintiff Vimalabai was held entitled to 1/8th share in the whole properties described in Part-I Schedule-B attached to the plaint, except the portion of field Survey Nos.51/1 and 53/1 situated at village Sonora Kakade Pragane Mangrul Dastgir, Tq. Chandur Rly, District Amravati sold by Motiram. Regular Civil Appeal Nos.496 of 1986 and 498 of 1986 preferred by both the parties were dismissed on 21-2-1995 with some modification to the extent of holding the plaintiff entitled to 1/24th share in the properties shown in Schedule-B (Part I and II), agricultural lands and house property except the property sold by Motiram during his life time. Hence, this second appeal by the original defendant Nos. 8 & 9 claiming through the defendant No.1.

3. Undisputed factual position is that the ancestral property in the hands of one Motiram Mankar was partitioned by executing a registered Partition Deed dated 6-4-1955 to which Natthuji @ Devidas the defendant No.1 who was the son of Tulsabai the first wife of Motiram was a party. The property which had fallen to the share of Motiram in this partition was further partitioned on 27-10-1969 between Motiram and his third wife Satyabhama the defendant No.2. There were other transactions also in the form of Gift Deed and Exchange Deed and it is not necessary to refer them here. Vimalabai the original plaintiff who claimed to be the daughter of Narmadabai the second wife of Motiramji filed a suit in question i.e Special Civil Suit No.38 of 1979 for partition and separate possession of 1/8th share in the entire property excluding the property sold by Motiramji in the year 1977.

4. Both the Courts below have disbelieved the registered Partition Deed dated 6-4-1955 for the reason that the burden of proof to prove that the Partition Deed was real, genuine and not nominal was upon the defendants which was not discharged and that there was evidence brought on record to establish that the parties continued to live together and enjoy the property in common as before. It is not in dispute that if such Partition Deed is accepted to be true, correct and binding upon the parties, the plaintiff will be entitled to 1/24th share in the property which had fallen to the share of Motiramji Mankar alone of course excluding the property which was sold by Motiram and excluded by the Courts below. In such eventuality, the plaintiff would not be entitled either 1/8th share or 1/24th share in the entire property as has been held by the Courts below.

5. While admitting this second appeal the Court had framed the following substantial questions of law:-

“1] Whether both the Courts below were justified in holding that the partition deed dated 6.4.1995 was nominal, not real and genuine, since not acted upon by the parties?”

“2] Whether the burden of proving the existence of joint family was on the original plaintiff, especifically on the face of the registered partition deed dated 6.4.1955? If yes. whether the Courts below were right in casting the negative burden on the appellants?”

“3] Whether Section 23 of the Hindu Succession Act imposes a restriction on a female heir to demand partition of a house property? If yes, whether the original plaintiff can enforce a partition in respect of the house property shown in Schedule-B of the plaint?”

6. So far as the substantial question of law at serial No.3 is concerned, it is conceded by Sh. Sohoni, the learned Advocate appearing for the appellants that the plaintiff would be entitled to 1/24th share in the property which had fallen to the share of Motiramji in the Partition Deed dated 6-4-1955. Hence, the said substantial question of law does not deserve any consideration.

7. Sh. Sohoni, the learne