Sanjay K. Agrawal, J.

1. The substantial question of law involved, formulated and to be answered by this Court in this second appeal preferred by legal representatives of defendant No.1 is as under:-

"Whether the learned Courts below were justified in law in holding that in the matter of succession, general law of succession of Hindus prior to enactment of Hindu Succession Act, 1956 will operate to dis-entitle Samunda Bai to get any share after death of his father?"

2. The imperative facts required for determination of above-stated substantial question of law are as under:-

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]

2.1. The suit property was originally held by Jagannath, who had two sons i.e. original plaintiff-Samodi and original defendant No.l-Umend and one daughter-Samunda Bai. Defendants No.3 and 4 are daughters of Samunda Bai and defendant No.2-Lakhan is husband of Samunda Bai. It is the case of the parties that original land holder Jagannath partitioned the suit property during his life time and given 1.39 hectares of land to original plaintiff-Samodi and 1.17 hectares of land to defendant No.1-Umend and reserved 1.25 hectares of land in favour of his wife Parwat Bai, who died in the year 1985. The dispute relates to this suit property after her death, which was left and reserved for Parwat Bai. Original plaintiff-Samodi filed a suit on 23.10.90 for declaration of title, partition, possession and mesne profit with damages stating inter-alia that he is entitled for/of share in the property left by Parwat Bai admeasuring 1.25 hectares of land situated at village Kampa, District Bemetara claiming to be governed by the Hindu Succession Act, 1956 (hereinafter called as "the Act of 1956").

2.2. Defendant No.1 filed his written statement stating inter-alia that they are governed by their customs being an aboriginal tribe and the plaintiff is not entitled for/of share in the suit property left by Parwat Bai.

2.3. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 21.9.98, decreed the suit and held that the plaintiff is entitled for/of share in the suit property as Samunda Bai died in the year 1962 and during that time, unamended Section 164 of the Madhya Pradesh Land Revenue Code, 1959 was applicable and therefore, she is not entitled for any share in the property left by her father.

2.4. Defendant No.1-Umend preferred first appeal on the ground that the provisions contained in the Act of 1956 would not be applicable as they are governed by their customs, which the First Appellate Court did not find favour and dismissed the appeal.

2.5. Being aggrieved and dissatisfied with the judgment and decree passed by the First Appellate Court, this second appeal under section 100 of the CPC has been filed by defendant No.1 who died during pendency of the second appeal, in which substantial question of law has been framed by this Court, which has been set-out in opening paragraph of this judgment.

3. Mr. P.R. Patankar, learned counsel for the appellants, would submit that both the Courts below are absolutely unjustified in holding that the parties are governed by the provisions of the Act of 1956, whereas they are governed by their customs in which daughter Samunda Bai is also entitled for V of share. He would further submit that the trial Court is absolutely unjustified in granting/of share to the plaintiff and defendant No.1, as such, the second appeal deserves to be allowed. He placed reliance of the judgment passed by this Court in Smt. Butaki Bai & others vs. Sukhbati & others 2014 (3) C.G.L.J. 590.

4. On the other hand, Mr. Amit Sahu, learned counsel for respondent No. 1(A), would submit that defendants No.3 and 4 are daughters of Samunda Bai, they did not appear before the trial Court and did not even prefer appeal before the First Appellate Court and also did not question the