1. This second appeal is preferred by the original defendant no.1, he having lost before the District Judge in the first appeal. The parties shall hereinafter be called as the plaintiffs and the defendants.

2. The facts shorn of details are as follows

The plaintiffs and the defendants are sons of one Rajaram Lambat. Rajaram Lambat held joint family property. In order to avoid there being any dispute between family members, all members of the family decided to effect the partition. Accordingly, a partition took place between the plaintiffs, defendants and their father and their another brother. The said partition took place on 23/12/1974 and it was reduced to writing. It is a registered partition-deed. Share was allotted to each one of the sons of Rajaram as well as to Rajaram. However, no share was allotted to the wives of Rajaram and they had signed the partition-deed giving their consent for not allotting any share to them. One of the conditions of the said partition-deed was that the property that has fallen to the share of Rajaram would go to the two plaintiffs and defendant no.1. Rajaram died on 27/1/1983. The plaintiffs submit that, therefore, the property left behind by Rajaram is liable to be divided into three shares i.e. a share each to the two plaintiffs and defendant no.1. They contend that they have come to know that Rajaram had executed a Will in favour of defendant no.1 and defendant no.1 has got his name mutated in respect of the said property. Their contention is that Will was got executed from Rajaram Lambat taking disadvantages of his advanced age and according to them, that is of no avail.

3. A written statement was filed by the defendant no.1. Defendant no.1 i.e. present appellant contested the suit. He does not dispute that the partition took place in the year 1974. He also does not dispute that the share was allotted to Rajaram. He further does not dispute that in the said partition-deed there was a clause that upon death of Rajaram property was to go to three brothers. However, his contention is that the condition that the property was to go to three brothers was a void condition. He does not dispute that the Will has been executed in his favour.

4. The learned judge of the trial court framed issues and he found that the plaintiff had failed to prove that deceased Rajaram had only life interest in the suit property. He also found that on the basis of the partition-deed they could not claim 1/3rd share in the property left behind by Rajaram. He also found that the plaintiff had failed to prove that the Will was brought about by exercise of undue influence and that the will was valid. Holding so, he decreed the suit.

5. The plaintiffs, therefore, preferred appeal before the District Judge. The District Judge found that Will was validly executed by Rajaram on 31/7/1983 but he found that Rajaram had only life interest in the suit property. As a result, he allowed the appeal and decreed the suit. Feeling aggrieved thereby defendant no.1 has preferred this second appeal.

6. The Second appeal has been admitted by this court on the following substantial question of law.

“Whether the said Rajaram could legally make a will in respect of the property received by him in the said partition deed in favour of the original plaintiffs with such condition?

7. The learned counsel for the parties addressed me on the above substantial question of law. No other point was urged.

8. At the costs of repetition, I may narrate a few undisputed facts once again. The plaintiffs and the defendants are real brothers. Their father Rajaram held joint family property. The same was partitioned by registered-deed on 23/12/1974. Besides the plaintiffs and the defendants, other brother Namdeo and the father Rajaram were also given a share each in the joint family property. The two mothers of plaintiffs and defendants i.e. the two wives of Rajaram were not given any share but they had consented for the same. The parties have