JUDGMENT - D.B. DESHPANDE, J.:---This is an appeal by defendant Nos. 1 and 2 against the judgment and decree passed against them by the learned Civil Judge Senior Division, Parbhani in Special Civil Suit No. 33 of 1976 on his file and it arises out of the following facts. 2. So far as the parties to the suit are concerned one Shankarao is the originator of this family. Defendant Nos. 1 and 2 are sons of this Shankarao defendant Nos. 4 and 5 are Shankaraos daughters sons and the daughters and non respectively and the name of the daughter concerned was Rukminibai who is also dead. One Babuarao was also the son of Shankarao and Baburao died when the family was still joint. Before me both sides have made submissions on the basis that Bapurao died on 10-5-1955. Ashabai, defendant No. 3 is the widow of said Bapurao, and it is an undisputed fact that Ashabai re-married in 1965. The present plaintiff is the daughter of Ashabai and Bapurao. The plaintiff claimed that since after re-marriage of Ashabai defendant No. 3, she forfeited her rights in the family of Bapurao and, therefore, she claimed ¼th share of Bapurao which was inherited by his widow Ashabai. Now this Shankarao died some time in 1972. The plaintiff claimed that she is heir of Shankarao and as such she gets 1/16th share in the property left by Shankar and that is why she filed this suit for partition and for separate possession, of her 5/16th share in the entire suit property consisting of some agricultural land situated at two villages. 3. The defendant Nos. 1 and 2 resisted the plaintiffs claim. They denied that the said property were ancestral property of Shankarao and according to them they were self acquired properties. They contended that section 6 of the Hindu Succession Act is not applicable in view of the remarriage of Ashabai. According to them Bapurao had no right in the suit property and they contended further that the defendant Nos. 4 and 5 are also not entitled to get share in the suit property. They contended further that the property was partitioned between themselves. They also challenged the jurisdiction of the trial Court to try this suit and also challenged the valuation of the suit. 4. 4 and 5 are also not entitled to get share in the suit property. They contended further that the property was partitioned between themselves. They also challenged the jurisdiction of the trial Court to try this suit and also challenged the valuation of the suit. 4. The defendant No. 3 Ashabai did not submit any written statement and defendant No. 4 also did not submit any written statement. Defendant No. 5 is apparently minor and his guardian has filed the written statement contending that the defendant No. 5 has acquired ¼th share in the property. According to him the partition decree between the defendant Nos. 1 and 2 is collusive. 5. Several issues were framed and evidence was led. After considering the entire evidence the learned trial Judge held that the genealogy as set out in the plaint was proved as it was not disputed. He held that the plaintiff proved that Shankarao and his sons and daughters and others were members of a joint Hindu family. He held that the plaintiff proved that the suit lands are joint Hindu family ancestral property. He held that Bapurao that Ashabai remarried in 1965 with one Somnathappa and as such Ashabai cannot claim any share in the suit property. He also held that the plaintiff proved that she has undivided 5/16th shares in the suit properties. He rejected the contentions of defendants Nos. 1 and 2 that all the suits properties were self acquired properties of deceased Shankar and they were not joint family ancesstral properties of deceased Shankar and they were not joint family ancestral property. Similarly he rejected their contention that the plaintiff had no share or interest whatsoever in the suit property. He rejected their contention that defendant Nos. 5 and 6 had also no share whatsoever. He held that he had jurisdiction to try the suit and consequently he passed a decree in favour of the plaintiff for partition and separate possession of her 5/16 share in the suit property and awarded ancillary reliefs consistent with this decision. Being aggrieved by this judgment and decree defendant Nos. 1 and 2 have preferred this appeal. 6. He held that he had jurisdiction to try the suit and consequently he passed a decree in favour of the plaintiff for partition and separate possession of her 5/16 share in the suit property and awarded ancillary reliefs consistent with this decision. Being aggrieved by this judgment and decree defendant Nos. 1 and 2 have preferred this appeal. 6. In this appeal it is not disputed before me that after the death of Shankarrao in 1972 the share of Shankarrao is distributed between 4 branches of the family viz., those of defendant No. 1, defendant No. 2, Bapurao and Rukminibai (sons and daughters respectively of Shankarrao). Shankarrao had ¼th share in the property and hence the present plaintiff gets admittedly 1/32 share. At one stage it was disputed that plaintiff had 1/16 share and it was contended that she had 1/13th share in the property and for this purpose reliance was placed on the fact that Ashabai, though remarried is alive but the position under the Hindu Succession Act is quite clear. On the date on which the Succession to Shankarao opened in 1972 Ashabai had already remarried and hence she was no longer a widow of Bapurao and hence the share of bapurao could not further be sub-divided. Hence, ultimately it was conceded that plaintiff had 1/16th share in the share of Shankarrao and to this extent the appeal is practically conceded. 7. The next important question is about the share claimed by the plaintiff as the share of her father Bapurao who admittedly died when he was a member of Joint Hindu family along with his father and brothers. I have already pointed out that submissions are made before me on the basis that Bapurao died on 10-5-1955. He, therefore, died before the Hindu Succession Act of 1956 came into force. It is not a disputed fact that Hindu Womens Rights to Property Act, 1937 was in force in that area then and hence Ashabai had ¼ share in the joint family property as the widow of Bapurao. He, therefore, died before the Hindu Succession Act of 1956 came into force. It is not a disputed fact that Hindu Womens Rights to Property Act, 1937 was in force in that area then and hence Ashabai had ¼ share in the joint family property as the widow of Bapurao. The following citation from the principles of Hindu Law by Mulla, 14th Edition on 901 and 902 are very material : "The right which was conferred on the widow by section 3 of the Hindu Womens Right to Property Act, 1937, as has already been pointed out, was not a right which was inchoate or imperfect till a claim for partition was made. The undivided interest of the husband in the joint family property developed upon the widow immediately on the death of the husband and in the eye of law she would be in possession of her interest in that property. The effect of the present section is to transform that statutory interest of the widow of which she was a limited owner into that of a full owner. The fact that she had not sought any partition before the present Act came into force in 1956 makes no difference. Similarly, where at the time of her death the widow was in possession of her share of the property to which she became entitled under the Hindu Womens Right to Property Act, 1937, that share or that property would develop under her heirs and the latter would be entitled to prosecute a suit partition filed by the widow. On the same principle it was held by the Supreme Court that the share of a widow declared by a preliminary decree in a partition suit before the commencement of the present Act, is a share "possessed" by her and if she dies before actual division of the estate, the interest declared in her favour will devolve upon her heir as property of which she was possessed at the time of the death and within the contemplation of the present section." This citation, therefore, clearly goes to show that the Ashabai acquired ¼th share in the joint family property and it must be deemed that she was in constructive possession of that share. It is not now disputed before me that this ¼th share which was of a limited nature was enlarged to that of an absolute nature on the date of the coming into force of the Hindu Succession Act. It was contended on behalf of the appellants that even after the remarriage she does not forfeit her right of inheritance to the property left behind by Bapurao and hence this share would not devolved upon the plaintiff and, therefore, it was further contended that the plaintiff would not be able to claim that share on account of the re-marriage of Ashabai. Reliance is placed for this purpose on a decision of this Court in (Pandurang Narayan Salunke v. Sindhu and another)1, A.I.R. 1971 Bombay 413 and this ruling support the contention of the appellant. This proposition of law is also not disputed on behalf of the respondent/plaintiff. It will, therefore, be seen that the plaintiff is not entitled to this ¼th share which she claimed through Bapurao and it is now apparent that this ¼th share goes to defendant No. 3 Ashabai inspite of her re-marriage. 8. At this stage Mr. Paranjape, appearing for respondent No. 3, who is also respondent in this appeal, contended that the share of Ashabai who is respondent and who was defendant No. 3 in the original suit should be allowed in her favour. This request was opposed by Shri S.J. Deshpande appearing on behalf of the defendants/appellants. As against this Mr. Paranjape and Shri R.M. Agarwal appearing on behalf of defendant No. 3 and plaintiff, respectively placed reliance upon the provisions of Order 41, Rule 33 of the Code of Civil Procedure and also on provisions of Order XX, defendant No. 3 Ashabai can be defined in this appeal. In this respect reliance was placed on some ruling also. One is (Periaswami Pillai and others v. Dhanallakshmi Ammal and others)2, A.I.R. 1960 Madras 391 head note (c). In this respect reliance was placed on some ruling also. One is (Periaswami Pillai and others v. Dhanallakshmi Ammal and others)2, A.I.R. 1960 Madras 391 head note (c). Therein it is observed that--- "in suit for partition it is not array of parties that is relevant but the fact that all the members entitled to shares are on record and found entitled to reliefs." It is further pointed out that : "where one of the co-heirs brings a suit for partition of his share the Court should not merely give a decree for the plaintiffs share only but should consider the shares of all the heirs after making them parties and pass a preliminary decree to that effect." This ruling, therefore, supports the contention raised by defendant No. 3. 9. The provisions of Order XX, Rule 18 of the Civil Procedure Code clearly go to show that when the Court passes a decree for the partition of the property the decree shall declare the rights of the several parties interested in the property. It is, therefore, apparent that it is incumbent upon the Court to declare the rights of the several parties interested in the property. The principle underlying is that the Court should not require the parties to file a fresh suit for the same purpose again. In the instant case it is an admitted fact that the defendant No. 3 did not appear in the lower Court and did not file any written statement and also did not claim that her share should be given to her. At the time of the decision by the trial Court this question did not arise in as much as the trial Court held that Ashabai forfeited her interest on account of re-marriage and her interest devolved upon the present plaintiff-respondent. Hence there was no occasion for the trial Court to consider the question of defining the share of defendant No. 3 . It is, therefore, clear that defendant No. 3 is a non-contesting defendant. The authority of the Calcutta High Court in (Sarbeshwar Panda and others v. Bibhabasu Pande)3, A.I.R. 1977 Cal. Hence there was no occasion for the trial Court to consider the question of defining the share of defendant No. 3 . It is, therefore, clear that defendant No. 3 is a non-contesting defendant. The authority of the Calcutta High Court in (Sarbeshwar Panda and others v. Bibhabasu Pande)3, A.I.R. 1977 Cal. 288 is a good authority on this point and th head note runs as follows :--- "Under Rule 18(2) of Order 20 the Court though may pass a preliminary decree declaring the rights of the several parties in the suit property in a partition suit but generally the Court declares the rights of the plaintiff and of those defendants who contest in the suit and desire their rights to be so declared. Where the rights and share of the defendants are not declared in the preliminary decree, the Commissioner is not competent to partition and make separate allotment of the share in respect of the property-in-suit in their favour unless the said preliminary decree is modified declaring their right and share either on appeal or on review of the said preliminary decree." Here the appeal is still pending and share could be defined. In addition to this Mr. Paranjape and Mr. R.M. Agarwal relied upon the provisions of Order XXXI, Rule 3 of the Civil Procedure Code and relying upon this provision they urged that this Court should define the share of defendant No. 3 also Considering all these provisions I do not see any impediment in the way of this Court in declaring the share of defendant No. 3 and also declaring the share of all the other defendants. There is no question of limitation in such a case. In order that the matter should be disposed of finally it is necessary to see that all the persons who are entitled to the share are parties to the suit. It is desirable to define the shares of all the persons who are entitled to the share in the property. Admittedly all persons who are entitled to the partition are parties to the suit and to the appeal before this Court. 10. Now the following position emerges : Defendant No. 1 and defendant No. 2 each had original ¼th share and their share is further enlarged as heirs of Shankarrao and each of them gets 1/16th share in the property left by Shankarrao. 10. Now the following position emerges : Defendant No. 1 and defendant No. 2 each had original ¼th share and their share is further enlarged as heirs of Shankarrao and each of them gets 1/16th share in the property left by Shankarrao. Hence, defendant No. 1 gets 5/16th share and defendant No. 2 also gets 5/16 share. I already pointed out that it is not disputed that defendant No. 3 gets ¼th share and plaintiff gets 1/16 share and defendant. Nos. 4 and 5 together gets 1/16 share. Hence, this appeal only deserves to be partially allowed and the decision of the trial Court deserves to be modified as below : It is hereby declared that plaintiff has 1/16th share, defendant No. 1 has 5/16 share, defendant No. 2 has 5/16 share, defendant No. 3 has ¼th share and defendant Nos. 4 and 5 together have 1/16th share. The partition of the property shall be effected through the Collector or through his gazetted subordinate as per the provisions of 54 of the Civil Procedure Code read with Order 20 Rule 18 of the Civil Procedure Code. The contesting and non-contesting defendants will be entitled to their respective share on payment of the necessary Court fees in respect of their shares. Thus the plaintiff shall be entitled to only 1/16 share instead of 5/16 share. The partition shall be effected in accordance with the shares declared above and on payment of the necessary Court fees by contesting and non-contesting defendants their shares shall be handed over in their possession. In view of the complicated circumstances in the matter there will be no order as to costs. Appeal partly allowed. -----