A.B. Chaudhari, J.

1. Since these two appeals involve common legal question of importance, they have been taken together for hearing and final disposal with consent of the counsel for the rival parties and in accordance with order dated 15.09.2014 in Second Appeal No. 405/2013.

2. Mr. P.N. Joshi, learned counsel was requested to act as Amicus Curiae when order was made on 15.09.2014. Thereafter, on the request from this Court, Mr. Anil V. Anturkar, Mr. Rajiv Patil, Senior Advocates and Mr. C.G. Gavnekar, Advocates also participated in the hearing for assisting this Court.

FACTS:

Second Appeal No. 119/2013

3. The plaintiff-respondent herein, Sulochana wd/o Rajiv @ Raju Chavan filed Regular Civil Suit No. 1773/2006 in the court of Civil Judge Senior Division, Pune for partition, perpetual injunction against the brothers and sister of her deceased husband. Briefly stated, her case was that her husband Rajiv was brother of defendants Santosh, Mohan, Madhukar and their sister Mrs. Nanda and had a share in the suit property being ancestral property. On 28.05.1997, Rajiv @ Raju, husband of the plaintiff, left the house situated at Sarve Nagar, Pune and never returned. She reported the matter to police, who took missing entry no. 116/1997. Despite thorough search, Raju could not be found out. Since more than 10 years had already passed from the date Rajiv went missing, she was entitled to claim share in the undivided suit property and, therefore, she filed suit for partition and separate possession. The plaintiff had also filed Regular Civil Suit No. 1780/2006 for a decree of declaration about the civil death of husband and she got the said declaration on 31.07.2007. Simultaneously, she had also filed the instant suit for partition.

4. Having obtained the said decree for declaration of civil death of her husband, she filed the decree in the suit for partition being Reg. C.S. No. 1773/2006. The partition suit was resisted by respondents on the ground that the plaintiff had no right to file the civil suit for claiming any share. That the plaintiff had no cause of action to file the suit for partition or to claim any share in the property of her absconding husband. That all the brothers, including the deceased Raju had agreed to sell the suit property to one Hari Binawat by executing agreement of sale dated 19.01.2000 of which the respondents had received earnest money. The appellant, therefore, stated that the suit was, therefore, required to be dismissed.

5. The lower appellate court-District Judge, Pune, while deciding the two appeals, upheld the judgment of the trial court, insofar as the right to ask for partition by the plaintiff is concerned but modified the decree to some extent by relying upon the judgment in the case of Ms. Vaishali Satish vs. Satish Ganorkar 2012 (2) ALL MR. 737 in which it was held that the date of opening of succession was relevant date and if succession had opened prior to the Amendment Act of 2005, the amended Act would have no application. The lower appellate court also held that the appellant-defendant no. 4-Mrs. Nanda, who was daughter of Dnyanoba, had already married and was residing separate from 26.10.1991 and, therefore, she was not coparcener as per the prevailing law and, therefore, she could claim share with her brothers only in the share of her father.

Being aggrieved by judgment of the two courts below, the unsuccessful defendants have filed this Second Appeal.

Second Appeal No. 405/2013

6. The plaintiff-Smt. Chanda Hanmant Karne, an issueless widow of Hanumant filed Regular Civil Suit No. 8/2007 in the court of Civil Judge Junior Division, Phaltan for partition and separate possession in respect of the ancestral suit property. It was her case that the defendant no. 1 was her father-in-law while other defendants were his children. The deceased Hanumant has expired on 31.10.2003 and she was thus alone, living with the joint family of the defendants, working with the defendants but then before 7-