1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTIION SECOND APPEAL NO. 58 OF 2008 SECOND APPEAL NO. 58 OF 2008 SECOND APPEAL NO. 58 OF 2008 Shri Khalil Ahmed Ismail Pirajde & Ors. ..Appellants (Orig. Defendants) Vs. Jalil Ahmed Ismail Pirajde ..Respondent (Orig. Plaintiff) Mr. R.N.Gite, Advocate, for the appellants Mr. M.S.Karnik, Advocate, for the respondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 11th September,2008 DATE: 11th September,2008 DATE: 11th September,2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. The respondent is the original plaintiff and the present appellants are the original defendant Nos. 1 & 3 to 6. The parties are Muslims. The plaintiff, defendant No.1 and defendant No.3 are brothers and defendant Nos. 4 to 6 are the sisters. The plaintiff filed suit for partition and separate possession in respect of the property left behind by their father. The trial Court held that the daughters are entitled to 2/3rd share and the shares of the three sons will be 1/3rd and therefore, the plaintiff is entitled to 1/9th 2 share only. Being not satisfied with that, the plaintiff preferred Regular Civil Appeal No.40 of 2006 The learned Adhoc District Judge-2 Niphad allowed the appeal and came to conclusion that as per the table of shares and as per the table of residuary in respect of succession applicable to Sunni Law, the daughter gets as a residuary, the son gets double of the daughter’s share. Accordingly, the learned appellate Court held that each of the sons is entitled to 2/9th share and each daughter gets 1/9th share. This has been challenged by the original defendants in the Second Appeal. 3. The learned Counsel for the appellant contends that before filing the Regular Civil Suit No.5 of 2000 by the plaintiff, already another Regular Civil Suit No.128 of 1999 was filed by the present appellants/dfendants. That suit was not decided and the latter suit was decided first. According to him, this suit should have been stayed and the earlier suit should have been decided first. This objection is of no consequence now particularly when both the courts below have decided the matter and this Court is dealing with the Second Appeal. The question of stay under Section 10 of C.P.C. does not arise when the suit as well as the appeal have been already disposed of. 3 4. On hearing the learned Counsel for the parties and on perusal of the relevant provisions of the Muslim law and particularly the table of residuary in order of succession applicable to Sunni, I find that the appellate Court is perfectly correct. The trial court had ignored that table and had applied the table of shares wherein the share of one daughter is half and where there are more than one daughters, they get 2/3rd share, but for that pre-requisite condition is that there should be no son. That condition shown in column 3 of the table was ignored by the trial Court and this has been corrected by the appellate Court. When the deceased has left behind sons as well as daughters, they get the property as Residuaries and as per the Table of Residuary, a son gets double of a daughter. Therefore, I find no substantial question of law involved in the appeal. 5. The appeal stands dismissed. 6 As the appeal itself is dismissed, the C.A.No.131 of 2008 does not survive and stands disposed of accordingly. 4 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)