1 SA 460.2009 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 460 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. B.R.Warma,Advocate for the appellant Mr. R.R.Mantri, Advocate for Res. No. 1 .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 21/03/2011 PER COURT : 1. The plaintiff had filed Suit for partition and separate possession in respect of the suit properties. The trial Court decreed the Suit thereby granting the plaintiff 7/20th share in the suit properties. Vedabai, original defendant no. 3 preferred Appeal. The appellate Court has partly allowed the Appeal thereby granting plaintiff 9/40th share in the suit properties. The rest of the decree was confirmed. The present Second Appeal is filed by Vedabai along with other defendants i.e. defendant nos. 1,2, 4 (Chamelibai), 6 and 7. The appellant nos. 2 to 6 as shown in the appeal memo 2 SA 460.2009 of the Second Appeal, had not preferred First Appeal before the District Court, as such Civil Application is filed seeking leave to file Appeal. 2. Mr. B.R.Warma, the learned counsel for the appellant submits that the dispute is only in respect of shares and as Sangita was unmarried in the year 1994, then in such circumstances Sangita also would get share equal to that of co-parcenor. According to the learned counsel, error was committed by the District Court in not considering Sangita as a co-parcenor and as such the shares were erroneously calculated by the District Court. According to the learned counsel, it is Suit for partition and separate possession and all parties are in the capacity of plaintiff. As such, even though the present appellant nos. 2 to 6 had not filed the First Appeal, they would be entitled to file Second Appeal. According to the learned counsel, each and every co-parcenor would be entitled to 9/48th share and the daughters except Sangita would be entitled to 1/40th share. 3. Per contra, Mr. R.R. Mantri, the learned counsel for the original plaintiff submits that when present appellant nos. 2 to 6 had not filed any Appeal before the District Court, they are precluded from filing Second Appeal. As such, the 3 SA 460.2009 Civil Application filed by them can not be allowed and they can not be allowed to prosecute the Second Appeal. According to the learned counsel, it was with the dis-honest intention the present appellant nos. 2 to 6 had not preferred any Appeal. The intention was to avoid payment of court fees and as such no orders can be passed prejudicially to the interest of the plaintiff at the behest of appellant nos. 2 to 6. 4. The Appeal was restricted to the calculations of shares. In that light of the matter, notice of final disposal was issued restricting the Appeal to the extent of calculations of shares. 5. The following substantial question of law arises : i) Whether daughter Sangita, who was unmarried would be treated as co-parcenor and whether she would have the share similar to that of her brothers in the suit properties ? 6. The fact that Sangita was unmarried on the date of presentation of the Suit is not disputed. Under Order XX Rule 18 of the Code of Civil Procedure, in a Suit for partition and separate possession, the share of each and every person is to 4 SA 460.2009 be calculated. So, even if the Appeal is preferred by one party, the shares of each and every party has to be calculated. In that light of the matter, it would not make any difference even if one person prefers Appeal. However, the appellant nos. 2 to 6 are required to pay court fees to the extent of their share. Mr. Warma, the learned counsel undertakes to pay said court fees. 7. Once it is accepted that the defendant Sangita was unmarried, then as per the amendment to the Hindu Succession Act, she would be treated as co-parcenor by deeming fiction and would be entitled for equal share. In such circumstances, there would not remain any dispute about the calculation of shares. The plaintiff would be entitled for 9/48th share, so also, all the sons of Baburao, the widow of Baburao and Sangita would be entitled for 9/48th share each and the married daughters i.e. Chamelibai, Mangalabai and Bhartibai would be entitled for 1/40th share. 8. In that light of the matter, the Appeal is partly allowed. The decree to the extent of share is modified as referred supra. The rest of the decree passed by the trial Court is up-held and maintained as it is. The appellant nos. 2 to 6 to 5 SA 460.2009 pay the court fees within the period of two ( 2 ) weeks from today as per rules. [ S.V. GANGAPURWALA,J. ] KNP/SA 460.2009