ORDER : ORDER IN SECOND APPEAL 1. Heard learned Advocate for the appellant Mr. Dakshesh Mehta, who submitted that by way of this Appeal, the challenge has been given to the judgment dated 31.01.2023 passed by the learned 3rd Additional District Judge, Navsari in Regular Civil Appeal No.15 of 2004. Learned Advocate Mr. Dakshesh Mehta submitted that original Suit for partition was filed as Special Civil Suit No.82 of 1997 which was renumbered as Regular Civil No.124 of 2002 and the Suit of the widow and daughter of Jerambhai Bavjibhai Patel for partition and possession was dismissed on 20.12.2003 by the learned 2nd Joint Civil Judge (J.D.), Navsari. Against that, an Appeal was preferred as Regular Civil Appeal No.15 of 2004 which was decided on 30.04.2005 whereby the Appeal came to be partly allowed and the judgment of the learned trial Court was set aside with a declaration that the plaintiffs have ½ share in the property. It is further submitted that against that order, Second Appeal No.275 of 2005 was preferred, which was decided on 03.10.2022 whereby the Coordinate Bench had remanded the matter for reconsideration to the learned Appellate Court with a direction to determine the Appeal in accordance with the provisions of Order 41, Rule 11, 14, 15, 31 and 33 of the Civil Procedure Code, 1908 and considering the recent pronouncement of the judgment of the Hon’ble Apex Court. 2. It is further submitted that the Co-ordinate Bench in the above Second Appeal had observed that the learned Appellate Court had failed to discharge the obligations placed on it as a first Appellate Court and thus, had directed to consider the same afresh on merits and in accordance with law after framing point of determination. It is further submitted that the said Regular Civil Appeal No.15 of 2004 was again heard and decided on 31.01.2023 whereby while partly allowing the Appeal, the judgment dated 20.12.2003 in New Regular Civil Suit No.124 of 2002 was quashed and set aside and the plaintiffs had been declared to have a share of ½ in the property described in Paragraph 2(1) – the dwelling house as well as Paragraph 2(2) – the agricultural land, with a direction that a City Surveyor be appointed for the property in Paragraph 2(2) of the plaint dwelling house for actual partition, separation and delivery of physical possession of the respective share of the parties. Further, the Mamlatdar, Navsari was directed to partition the property mentioned in Paragraph 2(2), i.e. the agricultural land. 3. Learned Advocate for the appellant/s Mr. Dakshesh Mehta further submitted while the admitting the Second Appeal No.275 of 2008, the substantial question of law which was raised was whether the first Appellate Court was right in ignoring Section 14 of the Hindu Succession Act, 1956 (hereinafter referred to in short as ‘the Succession Act’) and whether the property in dispute was of the joint possession. It is also submitted that it was incumbent upon the learned Appellate Court to give a finding on the substantial questions which were raised in the earlier Second Appeal, but the same has not been considered. 4. It is required to be noted that in the same Second Appeal by a final order on 03.10.2022, the learned Appellate Court was directed to reconsider the matter afresh on merits and in accordance with law after framing the points of determination. The learned Appellate Court in its impugned judgment dated 31.01.2023 framed the points of determination in Paragraph 9. The lower Appellate Court had raised the point to examine as to whether the plaintiffs are the legal heirs of the deceased Jerambhai Bavjibhai Patel, whether the defendant could prove that the deceased Jerambhai Bavjibhai Patel had divorced plaintiff No.1 and therefore, she is not entitled to any share in the disputed property, whether the disputed property is ancestral and the plaintiffs are having ½ share and whether the plaintiffs could prove that the judgment and decree passed the learned trial Court is legal and against the settled principle of law. 5. The plaintiffs while urging the suit properties claimed a relief of partition for claiming ½ share. The evidence of plaintiff No.1 – Naniben, widow of deceased Jerambhai Bavjibhai Patel was recorded vide Exhibits 48 and 62 where she reiterated the facts stated in the complaint and has admitted that for the last 40 years she was not residing at Village Bodali but denied the suggestion that she had obtained divorce from Jerambhai, which was as per the prevailing custom. Jerambhai had died in the year 1992. Jerambhai had died in the year 1992. The plaintiff had examined the witness – Mithliben Lalabhai vide Exhibit 87 who is the sister of the deceased – Jerambhai, who has supported the say of the plaintiff and who had deposed that no divorce has taken place between the deceased Jerambhai and the plaintiff No.1 and out of the wedlock, they have a daughter, the plaintiff No.2 – Ramilaben. 6. It is required to be noted herein that the heirs of Bavjibhai Patel are five in number – two brother and three sisters. The sister had come on record to submit that all the sisters have relinquished their right in favour of the brothers. The Court has thus, not believed the divorce and the fact of the plaintiff No.1 residing separately due to the divorce. Thus, the defendant could not prove the claim of the divorce of the plaintiff No.1 with the deceased brother. The names of both the brothers as heirs of Bavjibhai Patel were observed running in the revenue records. The learned Appellate Court has referred to Exhibit 66 – copy of the Assessment Sheet of the house property, Exhibits 67 and 68 – Village Form No.7/12, Exhibit 69 – Village Form No.8A showing the deceased Jerambhai and defendant in possession of the disputed property, Exhibit 74 – the Village Form No.6 - record of rights in Village Form No.6 and it transpires that as per Entry No.1589 on the death of tenant Bavjibhai, the name of the legal heirs of the deceased Jerambhai were entered, as per Entry No.1856 name of the defendant and Jerambhai as tenant and as per the order of the Mamlatdar, since the land was purchased by the tenants, they were cultivating as owners and they were shown as owners. The learned Appellate Court has rightly observed that Entry No.1589 has never been challenged on the death of the father Bavjibhai. Both the sons have been entered as legal heirs and the property is running in the names of both the brothers, which has been found to have been proved that the property in dispute is an ancestral property and therefore, the learned Appellate Court has thus come to the conclusion that the plaintiffs succeeded in establishing that the disputed property is an ancestral property. 7. Here, learned Advocate for the appellant/s Mr. 7. Here, learned Advocate for the appellant/s Mr. Dakshesh Mehta submitted that the Court had not considered the issue, which was the substantial question as was raised in Second Appeal No.275 of 2005 when it was admitted. Such an argument does not bear merits since the learned Appellate Court has dealt with Section 14 of the Succession Act in Paragraph 19 of its judgment and decree. The learned Appellate Court has also referred to Section 22 of the Succession Act for the right in the dwelling house and also now having considered the latest judgment of the Hon’ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma reported in AIR 2020 SC 3717 wherein it was held that women are entitled for the coparcenary rights from the moment they are born and Section 6 treats daughters on par with sons, has granted the relief. 8. Learned Advocate appearing for the Caveator Mr. R.E. Variava submits that he has not received any further instructions in the matter. 9. It is to be noted that the property in dispute has been proved as an ancestral property. Both the brothers have received the property from the father. The plaintiffs are the heirs of Jerambhai Bavjibhai Patel. On the death of Jerambhai, the plaintiff No.1 – the widow and the plaintiff No.2 – the daughter would be entitled for the share in the property. Since the property had come in the share of Jerambhai as ancestral property, the daughter would have a share by birth and the plaintiff No.1 as a widow of Jerambhai would be entitled for her share on the death of her husband. 10. Section 6 of the Succession Act recognizes the right of the daughter as co-parcenar in the Joint Hindu Family governed by Mitakshara law and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener and the coparcenary property shall be deemed to have been divided as if partition has taken place on the death of father. The daughter would be allowed share as a coparcener. 11. Here in the present case, the deceased Jerambhai Bavjibhai Patel had no sons, hence, the right in the property would be allotted to the daughter and in the coparcenary share of the husband, the widow would have the right. 12. The daughter would be allowed share as a coparcener. 11. Here in the present case, the deceased Jerambhai Bavjibhai Patel had no sons, hence, the right in the property would be allotted to the daughter and in the coparcenary share of the husband, the widow would have the right. 12. It is required to be noted that until and unless the property is partitioned by metes and bounds, each and every coparcener would be considered in the possession of the property and in view of the deemed partition, the share of the plaintiffs were required to be allotted to them, considering deemed partition before the death of Jerambhai Bavjibhai Patel. It also requires mention that Section 23 which is a special provision with respect to the dwelling house have been repealed in the Succession Act by an amendment with effect from 09.09.2005. Hence, all the coparceners would be entitled even for partition in the residential property. 13. In view of the aforesaid discussion and the provision of law, this Court does not find any reason to entertain the Second Appeal and therefore, the same is rejected. ORDER IN CIVIL APPLICATION In view of the order passed in the main matter, the Civil Application does not survive and the same stands disposed of accordingly.