JUDGMENT - DAGA V.C., J.:-This is a second appeal filed under section 100 of Code of Civil Procedure, 1908 ("C.P.C." for short) by the original plaintiff challenging the judgement and order passed by the Third Additional District Judge, Sangli in Regular Civil Appeal No. 337 of 1984 dated 13th September 1990; whereunder the 8/28th share (in the suit property) granted by the Civil Judge, Junior Division, Islampur in a Regular Civil Suit No. 173 of 1979 vide his judgement and decree dated 28th February, 1984 came to be reduced to 1/21st share.

THE FACTS:

2. The facts are not in dispute. The relationship between the parties is also not in dispute. The genealogy is as under:

Shripati

(died on 6-8-1962)

|

Wife Girija

(died in 1976)

|---------------------------------------------------------------|

Vithoba (son) Vishnu (son) |

(died on 3-2-1989) (died in 1960) |

|----------------|-----------------|------------------|

Tarubai Parubai Balkabai Shalubai

(daughter) (daughter) (daughter) (daughter)

3. Vishnu died in the year 1960. Anubai, widow of Vishnu filed a suit for partition and separate possession in claiming 1/3rd share in the suit property which comprises of 8 fragments of Agricultural lands and a residential house situated at village Kasegaon, taluka Walwa, district-Sangli.

4. The plaintiff makes out a case that the suit properties are the ancestral properties. Shripati, father-in-law of the plaintiff was a common ancestor. Plaintiff claims to be a widow of Vishnu, son of Shripati. Defendant No. 1 Vithoba was the another son of Shripati whereas defendant Nos. 2 to 5 are the daughters of Shripati. Plaintiff claimed 1/3rd share of her deceased husband in the suit properties and alleged that inspite of specific demand the defendant No. 4, who claims to have inherited the entire property under 'Will' alleged to have been executed by Shripati, refused to give her share and execute partition deed.

5. It is alleged in the plaint that the father-in-law, late Shripati was illiterate. That he was not keeping good health. That he never executed any 'Will'. That defendant No. 4 has taken disadvantage of the poor health condition of Shripati and had obtained a document styled as 'Will'. This 'Will' has been challenged in the suit on the ground of fraud alleged to have been practised by defendant No. 4. The plaintiff claims that the Will need to be ignored being illegal and bad in law. That is how plaintiff claims 1/3rd share in the suit properties.

6. The defendant No. 4 has filed her written statement. She denied plaintiffs claim. It is alleged that the plaintiff has no right to claim any share or interest in the suit properties. She claimed that, on the basis of 'Will' in her favour, executed by her father late Shripati, she has become absolute owner of the properties in question. She thus prayed for dismissal of the suit.

7. The defendant Nos. 1 to 3 and 5 adopted written statement filed by defendant No. 4. Nobody disputed the relationship between the parties.

8. The trial Court framed issues relevant to the pleadings and permitted rival parties to lead their respective evidence. On the material placed before it, the trial Court came to the conclusion that the 'Will' Deed, dated 16th December, 1961 did not reflect free Will of the deceased Shripati since it is surrounded by various suspicious circumstances. The trial Court held that plaintiff has 8/28th share in the suit properties. The suit, accordingly, came to be decreed to the extent of the shares of the respective parties carved out by the trial Court.

9. Aggrieved by the above judgement and decree, all the original defendants preferred appeal being Regular Civil Appeal No. 337 of 1984 under section 96 of Civil Procedure Code which came to be heard and decided by the Third Additional District Judge, Sangli on 13th September, 1990.

10. During pendency of the above appeal, the appellant No. 1/defendant No. 1 (Vithoba) expired.

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