:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.981 OF 2008 WITH CIVIL APPLICATION NO.2506 OF 2008 Vinayak Sadashiv Phadke since deceased through L.R.s. ..Appellants. Vs. State of Maharashtra and ors. ..Respondents. Mr. S.N.Chandrachud for the Appellants. Ms. Gauri Godse for the Respondent No.3. CORAM: R.S. MOHITE, J. DATE : 25th June,2008 P.C. P.C. P.C. 1. Heard both sides. 2. This is a first appeal filed by the original defendant No.1 impugning a judgment and order passed by the District Judge II on 12.3.2008 in Land Reference No.64 of 2007. The acquired land was admittedly land of one Moreshwar who expired in the year 1946 leaving behind his widow Dwarka and the widow of his predeceased son, Sushilabai. The predeceased son Sadashiv expired in 1949. He and Sushilabai had three sons and one daughter who were minors on the date of Moreshwar’s death. The District Court has correctly held that on the death of Moreshwar the succession in the family opened. Under the law prevailing prior to coming into force of the Hindu Succession Act, 1956 two widows and the :2: four children of the predeceased son Sadashiv obtained an equal 1/6th share. On the death of Dwarka her 1/6th share passed on to the surviving heirs and thus share of each of the survivors was increased to 1/5th. Secondly Sushila died in the year 1978 and after her death her share also passed on to the remaining surviving heirs who were only three brothers and one daughter. In such circumstances, the court has held that all the three sons and the daughter were entitled to 1/4th share and directed apportionment of the compensation accordingly. 3. It was sought to be contended that equal rights to the daughters in the coparsnary property was granted for the first time by an amendment to the Hindu Succession Act which was brought into force in Maharashtra from 22.6.1994.The argument was that this amendment did not apply to a daughter married before the commencement of Hindu Succession Act,1994. It was sought to be contended that the position in law in existence when the question of apportionment was being considered should be taken into account. In my view, the question of rights of the parties and their shares in ancestral land has no connection or bearing with the time when the apportionment is being considered under the Land Acquisition Act. The facts of this case clearly :3: indicate that succession opened in 1946 and then the shares have been crystalised and later enhanced by further deaths. It is sought to be contended that the name of Nalini was not shown in the record of rights. Initially the name of Dwarka was noticed in the record of rights only as a guardian of deceased Sadashiv. Subsequently her name was deleted. It was further contended that Nalini was married to one Joshi and had wrongly not shown her name of her husband. In my view, all these facts are irrelevant. Once, it is established under the rules of succession that Nalini had right in the property of the deceased Moreshwar then mere non recording of her name in the record of rights will not deprive her of her share to which she is entitled under the law. Though this is the first appeal, in my view, there is no disputed question of question of fact involved and the appeal was argued only on questions of law. In my view, the impugned judgment and order has been passed on the basis of correct applicable law,. There being no dispute as regards the facts, this is not a case where the first appeal deserves to be admitted. 4. It was also brought to my notice that Nalini had filed a suit for partition. Be that as it may, that suit will also consider the rights of Nalini if any. The mere filing of such a suit would not preclude :4: the court from deciding whether her share has been correctly calculated. Hence, appeal is dismissed,. 5. At this stage the Advocate for the appellant states that monies may not be paid for a period of six weeks. It is directed that monies should not be paid for a period of six weeks from today since his client wants to proceed in higher court. C.A.No.2506 of 2008 1. As the first appeal has been dismissed on merits, civil application does not survive and the same is also dismissed. (R.S. MOHITE, J.)