N.V. Dabholkar, J.

1. 1. Original defendants in Regular Civil Suit No. 137 of 1975, on the file of Joint Civil Judge, Junior Division, Osmanabad, challenge the judgment and decree passed by learned Joint Civil Judge, Junior Division, Osmanabad, vide his judgment dated 30-10-1980 and confirmed by District Judge, Osmanabad, vide his judgment and order dated 13-3-1986, while dismissing the Regular Civil Appeal No. 95 of 1981 filed by the defendants/present appellants, (Now onwards, parties shall be referred as plaintiff and defendants for the purpose of convenience.)

2. 2. Plaintiff Vatsalabai had approached Civil Court by Regular Civil Suit No. 135 of 1975 instituted on 19-8-1975, seeking a decree for partition and separate possession of her xh share in the property, as also past mesne profits. She approached the Court With following averments.

Sadhu was the common ancestor, who had two sons, namely, Baba and Vithoba. Plaintiff Vatsalabai is daughter of Baba, Whereas, defendants are legal heirs of Vithoba, defendant No. 4 Kasabai is widow of Vithoba and defendants No. 1 to 3, namely, Harischandra, Narayana and Govinda, are their sons.

As many as, 11 pieces of land totally admeasuring about 34 acres and a house, both situate at Raghuchiwadi, was the subject property regarding which, partition was sought. The property was ancestral property, i.e. the property descended from Sadhu and after his death, Vithoba was Karta of joint family of himself and Baba. During lifetime of Vithoba and Baba, families were joint and even after death of Vithoba, families continued to be joint. Baba was serving at Bombay for 10 to 12 years before his death. After return of Baba to village from Bombay, plaintiff Vatsalabai was residing with him. This was because, although she was married, she was deserted by her husband. Because the defendants refused to give share in the joint family property, deceased Baba filed Regular Civil Suit No. 62 of 1973 on 25-6-1973 against the defendants for partition and separate possession of his share. On 5-11-1973, an application for withdrawing the suit unconditionally came to be filed in the Court, and the Court permitted to withdraw the suit unconditionally. It is alleged that, the defendants, taking disadvantage of the old age and illness of Baba, practiced misrepresentation on him and obtained from him the application for withdrawal of the suit and placed the same before the Court. It is, therefore, contended that, the decision of the said suit is not binding upon the plaintiff. Baba, the father of the plaintiff, was suffering from acute bronchitis and was seriously ill. He was admitted in civil hospital, Osmanabad, when the above suit was withdrawn. Baba expired in the hospital on 18-11-1983. Being the only issue of deceased Baba, plaintiff Vatsalabai claimed to be owner and entitled to XA share in the ancestral property.

1. 3. It is also contended that there are rumors about defendant Nos. 1 to 4 having obtained a Will from deceased Baba, during his illness. According to the plaintiff, the same is obtained by fraud and taking disadvantage of the ill-health of deceased Baba, who was not in a sound mental condition. Thus, according to the plaintiff, her father had not executed any Will of his free Will and thus, the Will, if any, obtained by defendants, is fictitious and forged one.

.4. Defendant Nos.1, 2 and 5 resisted the suit by their Written Statement. Relationship between the parties is not disputed. It is also admitted that, Baba had filed Regular Civil Suit No. 62 of 1973 against the defendants but it is denied that withdrawal purshis of Baba was obtained by defendants, by misrepresentation or taking undue advantage of ill-health of the deceased.

.Baba is said to be liquor addict and as the defendants tried to persuade him against liquor consumption, Baba was instigated by his friends to file a partition suit. Baba voluntarily withdrew the suit after realizing his mistake. Since the suit was uncondi