Daughters have the right to claim a share in ancestral property as coparceners under Sec. 6(1)(a) of the Hindu Succession Act, but their entitlement is limited by the proviso to Sec. 6(1) based on the timing of the partition before 20/12/2004.

JUDGMENT

1. In this appeal a challenge is raised to the judgment and decree dtd. 28/2/2018 passed by the District Judge-10, in Civil Appeal No. 28 of 2013 dismissing the appeal filed by the plaintiff for modification of judgment and decree of the trial Court and thereby upholding the judgment and decree dtd. 23/10/2012 passed by the Extra-Joint Civil Judge Junior Division, Nagpur in Regular Civil Suit No.155 of 2007, decreeing the suit for partition, separate possession and permanent injunction.

2. The brief facts of the present case are as follows: (The parties are referred to as per their status before the trial Court.) The plaintiff/ appellant filed a suit for partition, separate possession and permanent injunction. It is the case of the plaintiff that the plaintiff and defendant Nos.2 to 8 are real brothers, sisters and the defendant No.1 is mother of plaintiff. A house bearing No. 4 constructed on Nazul Sheet No.133, City Survey No.176/1, Area 500 sq.ft., situated in Ward No.48 at Nagpur is the suit property, which was originally owned by the father of the plaintiff and defendant Nos. 2 to 8, Purushottam Borikar. He died on 17/03/2003 and after his death being legal heirs the plaintiff and the defendants became owners of the suit property. It is further pleaded that the suit property is in possession of the plaintiff and it is not yet partitioned. The plaintiff therefore, filed a suit for partition.

3. The defendant Nos.1,2, 3 and 5 and defendant Nos. 4, 6 7 and 8 filed their written statements vide Exh.20 and 27 respectively. The defendants have admitted their relationship with the plaintiff, however, denied that the suit property was self acquired property of their father. It is submitted that the suit property is an ancestral property and as the plaintiff got married before 22/06/1994, she is not coparcener and cannot claim any share in the suit property.

4. The learned trial court, after scrutinizing the oral as well as documentary evidence, decreed the suit and thereby it is declared that the plaintiff is having 1/40th share in the suit property, vide judgment and decree dtd. 23/10/2012 passed in Regular Civil Suit No. 155 of 2007.

5. The plaintiff, feeling aggrieved on denial of grant of equal share i.e. 1/9th share in the suit property, for modification of the aforesaid judgment and decree, she carried an appeal namely Civil Appeal No. 28 of 2013 before the District Judge-10 at Nagpur, which came to be dismissed vide judgment and decree dtd. 28/02/2018, which is under challenge in this appeal.

6. This Court, while issuing notice on 6/8/2018 framed the substantial question of law viz. :

"In the light of decision in 2017(1) Mh.L.J. 294 (Uttam ..vs.. Saubhag Singh and others) whether the plaintiff is entitled for share in the suit property in the light of provisions of Sec. 8 of the Hindu Succession Act, 1956?"

7. I have heard learned counsel for the appellant. None for the respondent.

8. Shri Kshirsagar, learned counsel for the appellant has submitted that in the recent judgment of the Hon'ble Supreme Court of India, in the case of Vineeta Sharma ..vs.. Rakesh Sharma,(2020) 9 SCC 1. and others, the judgment in the case of Prakash and others vs. Phulavati and otherS,2016(1)MhLJ1. on which the learned first appellate Court has relied upon, has been overruled. Accordingly, he submits that the learned first Appellate Court committed error in not considering the appellant as coparcener.

9. He further submits that in the light of judgment of the Hon'ble Supreme Court of India in the case of Uttam ..vs.. Saubhag Singh,2017(1)MhLJ294. the appellant/plaintiff is entitled for share in the suit property in the light of provisions of Sec. 8 of the Hindu Succession Act, 1956 (hereinafter referred to as "the Act of 1956").

10. To consider the submissions made by the learned counsel for the appellant, I have perused the record and thereupon following facts emerged as admitted facts:

A) The plaintiffs and defendants, except defendant