JUDGMENT

Phukan, J.-Leave granted.

The appellant Mahendra Kumar filed M.C.C. No. 283 of 1998 for setting aside the abatement order passed in First Appeal No. 69 of 1987. The appeal was filed challenging the judgment and decree dated 6th June, 1987 and 14th July, 1987 passed by the 5th Additional District Judge, Indore in Civil Suit No. 2 of 1972. During the pendency of the said appeal appellant s mother Rambhabai died. That appeal was dismissed as abated on the ground that legatee under the Will executed by Rambhabai was not joined as party respondent.

2. The Suit was filed by Rambhabai for partition of the properties claiming to be joint family properties between herself, the appellant and respondent Lalchand S/o Dhanna Lal Mahajan. A preliminary decree was passed in the said suit holding that appellant and his mother will get equal share i.e. 50 : 50 percent, in the property left by Dhanna Lal father of Lalchand. Pending passing of final decree a document dated 7th July, 1961 was introduced by alleging that her son (Appellant) has relinquished all his rights and share in the property in her favour. That said document was denied by the appellant and the evidence was recorded by the