JUDGMENT

JEEVAN REDDY, J. :- This Civil Appeal is preferred by the plaintiffs against the judgment and decrees of the Orissa High Court made in three appeals viz., F..A. No, 145 of 1971, F.A. No. 9 of 1972 and F.A. No. 15 of 1972 (reported in AIR 1981 Orissa 63),

2. The suit was instituted by Smt. Urmila Padhi for declaration of her title to plaint B schedule lands and confirmation of her possession thereon. The basis of her claim was the partition effected on 22-6-1968. Alternatively, she prayed for a fresh partition. (Certain other minor reliefs were sought for which need not be set out here). According to her, Judhishter (D-1) and Srinivas were brothers. Defendants 2 and 3 are the sons of first defendant. Srinivas had a son, Khalli who died long prior to the institution of the suit. Plaintiff is his widow. First defendant was the karta of thejoint family and was managing its affairs. In the year 1967, there was a partition wherein plaintiff was given six annas share while 10 annas share was kept by first defendant and his family. A deed of partition was executed on 22-6-1968 and registered on 27-6-1968. Since then, parties are in separate possession and enjoyment of the lands falling to their respective shares. Plaintiff was affected by cancer. D-4 is her sister. She appointed the husband of the fourth defendant as her power of attorney-holder to manage her properties. On 31-10-1968, she executed a deed of settlement in respect of some of her properties (mentioned in plaint-D schedule) in favour of fourth defendant and simultaneously cancelled the power of attorney in favour of her husband. On 24-1-1969, she executed a will in favour of her brother’s son in respect of her remaining properties. While she was at Cuttack, defendants 1, 2 and 3 did not allow her or her representatives/ agents to harvest the paddy or collect the uslufruct from her lands. Hence the suit.

3. Plaintiff Urmila died pending the suit. Her brothers son Bhojakrishna Panda came on record as her legal representative on the basis of the will dated 24-1-1969. Fourth defendant supported the plaintiffs case and later transposed as plaintiff No. 2.

4. First defendant too died after institution of the suit. His daughter Mahalakshmi was brought on records as his legal representative along with defendants 2 and 3. Son of Mahalakshmi was impleaded as fifth defendant. The case of Mahalakshmi and D-5 was that fifth defendant was taken in adoption by plaintiff on 17-4-1968 after performing the necessary rites, which is evidenced by a registered deed of adoption. They admitted the story of partition set up by the plaintiff. They denied the validity of the will dated 24-11-1969. According to them, plaintiff Urmila died on 20-4-1967 at Cuttack while undergoing treatment for cancer. On the date of alleged will (i.e. on 21-4-1969),she was not in a fit state of mind nor did she have any independent advice available to her. The fourth defendant took advantage of her situation and obtained the said will from her, they stated.

5. D-2 along with her wife D-6 filed a separate written statement. They did not seriously contest the case except trying to safeguard the partition between the plaintiff and Judhishter. They put forward an inter se partition between D-2 and the third defendant.

6. Third defendant also filed a separate written statement wherein he denied the story of partition. According to him, the second defendant is the culprit behind the whole game and it is he who, with a view to secure a major portion of the property, created several documents with the help of the fourth defendants husband. According to him, a partition had taken place between defendants 1, 2 and 3 in the year, 1952 and, therefore, there was no occasion for another partition in the year,1968.

7. On the above pleadings the trial court framed appropriate issues and decreed the suit with the following findings:

(a) the plea of partition in the year 1952 put forward by third defendant is not established;

(b) th