1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 261 OF 2006 Rajubai W/o Yadavrao Shinde & others .. APPELLANTS VERSUS Laxmibai W/o Yadavrao Shinde & others ...RESPONDENTS ... Shri H.K. Munde, Advocate for the appellants Shri M.M. Patil, Advocate for respondent Nos. 1 to 4 Shri S.P. Deshmukh, Advocate for respondent No. 4 Smt. C.S. Deshmukh for respondent No. 4,5-A to 5- C,5-F. CORAM : S.V. GANGAPURWALA, J. DATE : 20th October, 2010. PER COURT : The present appellants are the original defendant Nos. 3 to 6. The present respondent Nos. 1 to 3 had filed a suit for partition and separate possession in respect of the suit properties. According to the plaintiffs, suit properties are the ancestral properties of Yadavrao. After his death, the plaintiffs and defendant No. 1 are entitled for the respective share in the suit properties. Plaintiff denied 2 the share of the present appellants. The Trial Court decreed the suit filed by the plaintiff and awarded 1/36th share to each plaintiff. The plaintiffs preferred an appeal before the District Court. So also, the defendant No. 1 preferred an appeal. The moot question was the calculation of the shares. The III Adhoc Additional District Judge, Beed, vide its Judgment and Decree, dated 13th December, 2005, partly allowed both the appeals, and held that plaintiff No. 1 is entitled for 3/8th share & plaintiff Nos. 2 & 3 are entitled for 1/24th share. Defendant No. 1 was allocated 3/8th share and defendant Nos. 2,4,5 & 6 were allocated 1/24th share each. 2. The defendant Nos. 3 to 6 have assailed the said Judgment and Decree before this Court in the present Second Appeal. 3. Shri H.K. Mundhe, learned Counsel for the appellant canvassed following propositions. : i] The calculation of share by the District Court was erroneous, in as much as 3 the suit properties were ancestral properties. The property shall be divided between Yadavrao and Dattatraya being original co-parceners, both will get half share, on death of Yadavrao, half share of Yadavrao shall be distributed amongst the heirs. ii] As per Section 16 (2) & (3) of the Hindu Marriage, Act, 1955. The children born from void or voidable wedlock shall be treated on par with the legitimate children. iii] Dattatraya has also filed a suit claiming that the present plaintiff and defendant Nos. 3 to 6 do not have any share in the property and the Second Appeal arising out of the Judgment and Decree passed in the said suit is pending. 4. With the assistance of learned counsels for the respective parties, I have gone through the Judgments delivered by both the Courts. As far as applicability of Section 16(2) (3) of the Hindu Marriage Act, 1955 is concerned, the same would not apply in the present proceedings, in as much as, it is not disputed that the suit properties are ancestral properties. The benefit to the children born form void and voidable 4 wedlock is extended only in respect of self acquired property. 5. As far as allocation of 3/8th share to plaintiff No. 1 is concerned, the same is also legal and proper. The mother gets share equal to that of the son. The Apex Court in the case of “Gurupad Khandappa Magdum V/s. Hirabai Khandappa Magdum and others, reported in AIR, 1978 SC 1239” has also held that the widows share in the coparcenary property must be ascertained by adding the share to which she is entitled at a notional partition during her husband’s life time and the share which she would get in her husband's interest upon his death. 6. As far as the appeal filed by Dattatraya against dismissal of his suit is concerned, the same would not be germane for deciding the present dispute, as the Judgment and Decree has been delivered in the present case after a full fledged Trial. 5 7. Both the Courts have rightly appreciated evidence on record. No error can be found in the Judgments of the Courts below. No substantial question of law is involved in the Second Appeal, as such Second Appeal is dismissed. However, there shall be no order as to costs. [S.V. GANGAPURWALA,J] SDM*261.10 SA