JUDGMENT

A.M. Dhavale, J. - This appeal raises the issue of effect of adoption by a widow in 1953 on her rights under Hindu Women''s Rights to Property Act, 1937.

2. Reference to the facts and pleadings shorn of unnecessarily details is necessary. The subject matter of the suit are 9 agricultural lands and one house property described in para 1 of the plaint. (One Bhujaba was the common ancestor. He was survived by three sons Rambhau, Parvati and Maruti. Rambhau died issueless. Parvati died in 1946. He was survived by widow Janabai and two daughters Kamalabai and Sindhu. (The daughters are the original plaintiffs who are the respondents herein.) Parvati''s brother Maruti had five sons and five daughters. Defendant no.1 Vishnu son of Maruti who is the appellant herein claims to be adopted son of Janabai.) Other defendants are also descendants of Maruti. Janabai died in 1990 and her two daughters filed Regular Civil Suit No.108 of 1992 in the court at Bhor, District Pune, by denying the adoption of Vishnu by Janabai, and claimed that Parvati was having 1/2 share in the suit properties and on his death, Janabai inherited the said share by way of limited interest which ripened into absolute interest in the year 1956 under Section 14 of Hindu Succession Act, and they were entitled to inherit the same on death of Janabai. They had issued notices to the defendants but, there was no response. Hence, the suit for partition and separate possession. By a subsequent amendment, it was claimed that the defendants cut and sold 500 teak trees from the suit field worth Rs. 1,40,000/- and they should pay 50 % amount (Rs.70,000/-) to them. Accordingly, additional court fee was paid.

3. The plaintiffs claimed that their mother had a right to claim partition. The claim of the plaintiffs is for separation of their shares and not for partition. They did not become coparceners. Hence though, ladies they can claim partition.

4. Defendant no.1 claimed that as per wishes of Parvati he was adopted by Janabai in an adoption ceremony on 28.07.1953 held as per the provisions of law and the same was registered on 29.8.1953 and his name was changed as "Keshav S/o Parvati." His name is wrongly shown as "Vishnu S/o Maruti." His adoption relates back to the date of death of Parvati. He thereby became a co-parcener. Therefore, the Plaintiffs could not succeed to the share of Parvati. It is also claimed that the plaintiff being the daughters cannot file a suit for partition when property was still joint among all the parties.

5. The parties led evidence in the trial Court and the learned trial Judge by judgment dated 10.12.2002 held that the adoption of defendant no.1 Vishnu @ Keshav was proved. He was entitled for 1/2 share of Parvati and the plaintiffs had no share. Their suit is also barred by limitation. Hence, the suit came to be dismissed with costs. The plaintiffs preferred regular Civil Appeal no.282 of 2003 and the learned 15th Adhoc Additional District Judge Pune by a judgment dated 20.4.2004 confirmed that the adoption was proved but held that the plaintiffs had 1/6th share each while defendant no.1 had 2/3rd share in the property of Parvati. The Suit was accordingly partly decreed with consequential reliefs and costs.

6. Being aggrieved by the judgment. the original defendant no.2 Vishnu @ Keshav has preferred this Second appeal. It was claimed that the learned Judge of the first appellate Court erred in applying the provisions of the Hindu Adoption and Maintenance Act, 1956 through the adoption was of 1953. Janabai was not entitled to get share in the joint family property as it was not separate property of Parvati. Therefore the plaintiffs had no shares and the suit was rightly dismissed by the trial court.

7. The original plaintiffs (respondent nos. 1 and 2) preferred cross-objections challenging the concurrent findings regarding adoption of defendant no.1 by Janabai.

8. Cross-objections was admitted without framing substantial question of law. Thoug