S.A. Bobde, J.

1. 1. This Second Appeal is by the defendant No.2. The suit was filed by his sister, the respondent No. 1 Shobha. The suit is for partition and separate possession of several properties referred to in the plaint. The details of the properties are set out in the judgment of the two Courts below and hence are not reproduced here. The plaintiff (present respondent No. 1) claimed partition of l/3rd share in the property belonging to her deceased father. The share is claimed from the defendant No. 1 (present respondent No. 2), and the defendant No. 2 (present appellant), who are the uncles of the plaintiff. The defendant No. 3 (present respondent No. 3) is a purchaser of the suit property.

2. In brief, the case of respondent No. 1 is that her parents died long ago and she was brought up by her uncles, defendant Nos. 1 and 2. They settled her marriage and made arrangement for incurring expenses for the marriage. She claimed that three days before the marriage i.e. 20th May,

1974 the appellant told her that he did not have money for performing the marriage. She, therefore, got anxious and told defendant No. 2 that in no case should her marriage be cancelled. Thereupon, according to respondent No. 1, the appellant told her that he would send some papers which she may sign. Accordingly, on the same day a peon came to her along with some documents which the plaintiff neither read nor understood. According to respondent No. 1, these documents were signed on the pretext that they are for the purpose of her marriage which was to be performed on 23rd May, 1974. Her case is that she subsequently came to know that the documents were a Partition Deed and Sale Deed in favour of Shriram Namdeorao Patil, respondent No. 3. She, therefore, filed this suit for a declaration that the Sale Deed and the Partition Deed have been obtained by playing a fraud upon her and they are not binding.

2. 3. The trial Court framed several Issues. Issue Nos. (viii) and

(ix) read as follows:--

(viii) Does plaintiff prove that defendant No. 2 had committed fraud in getting her signatures on those documents ?

(ix) Does plaintiff prove that she had not received the cash consideration of Rs. 8,500/- from the defendant No. 3 and had not sold out any land to the defendant No. 3?

These issues have been answered in the negative. Thus the trial Court found that no fraud has been committed on the plaintiff and she had received consideration for the sale of the land. Nonetheless, the trial Court granted the declaration to her on the ground that undue influence has been practiced upon her by the appellant and therefore the documents cannot be acted upon. The respondent No. 1 filed an appeal against that judgment. The lower Appellate Court also held that the Partition Deed dated 20th May, 1974 and the Sale Deed dated 20th May, 1974 in favour of the defendant No. 3 is the outcome of the undue influence over the respondent No. 1 by the appellant. The lower Appellate Court, therefore, dismissed the appeal.

4. The present Second Appeal has been admitted. The following grounds have been considered as substantial questions of law that arise for consideration:--

1. That, inasmuch as a partition came to be effected on 20th May, 1974, marked as Exh. 69, which was duly registered to which the plaintiff was one of the executants and on that very date she sought to execute a sale-deed, Exh. 68 in favour of the defendant No. 3, it is evident that this being the state of affairs the Courts below were not entitled to negative the case of partition particularly when Issue No. 6 read - "Does the plaintiff prove that on 20th May, 1975 at about 8 to 9 p.m. defendant No. 2 had obtained her signatures on certain papers without making her understand as to why her signatures were obtained and under some pretext that money was needed for celebrating her marriage which was to be performed on 23rd May, 1974?"

was answered in the negative, no decree in her favour

on the claim as soug