( 1 ) THIS is an appeal preferred by the original defendant being aggrieved by the decree of partition and separate possession passed in Regular Civil Suit No. 86 of 76 decided by the Joint Civil Judge Junior Division, Osmanabad on deputation at Kallam on 18. 12. 1980, which judgment and decree is further confirmed by the District Judge, Osmanabad in Regular Civil Appeal No. 16 of 1981 decided on 14. 10. 1985.

( 2 ) BRIEF facts giving rise to this appeal may be stated as follows : one Mukundrao had two wives, Tulsabai and rangubai. Original appellant Haribai is daughter of rangubai. Haribai expired pending this Second Appeal. Tulsabai had daughter Kaveri. Present plaintiff/respondent Indrabai is daughter of Kaveri. It is not disputed that Tulsabai, Rangubai, Kaveri had expired during life time of Mukundrao and there was no son born to Tulsabai or Rangubai or to Kaveri. Mukundrao expired on 28. 3. 1976. Present respondent/plaintiff Indrabai filed suit for partition and separate possession of the property of Mukundrao. The suit was resisted by present appellant/defendant Haribai on the ground that she is sole successor of Mukundrao, as Mukundrao had executed a will in her favour on 24. 8. 1975.

( 3 ) THE Trial Court held that so-called will is shrouded with suspicious circumstances and cannot be trusted and he decreed the suit for partition and separate possession. The learned District Judge in First Appeal held that so-called will is a gift-deed in fact. He further observed in para 10 that the will is also not duly proved and it is a document of suspicious nature.

( 4 ) THIS court while admitting this appeal on 17. 1. 1986 passed following order : "admit. Interpretation of document at Exh. 46 is substantial question of law. "

( 5 ) BOTH parties have thus mainly argued on the question of interpretation of will Exh. 46 and mainly whether it is a testamentary will or a gift-deed. In case it is held that it is a gift-deed, it being in respect of property of which value is more than Rs. 100/ would require registration. So in absence of registration, it would not be a valid gift.

( 6 ) IN para 9 of the judgment, the learned District Judge translated the will as follows :

""person taking the will deed : Haribai w/o Digamberrao resident of Saundama taluka Kej, district Beed now Borgaon Kallam, district Osmanabad. Person giving the will : Mukundrao Gopalrao Samundre, resident of Borgaon Khurd,taluka Kallam, district Osmanabad. " i hereby execute the will as follows : i have no son. I give the lands standing on my name : 1. Survey No. 58a. 2. Survey No. 67g. and house property to my only daughter Haribai by this will which I execute as follows : haribai would be the owner because she looks after and feeds me till today and would also feed me in the future. For this reason I execute this will-deed on a stamp paper. Hence you enjoy all the property by this will. If somebody obstructs your enjoyment it would be null and void. This will is executed by me when I was not under the influence of intoxicant. It is true dated 24th August, 1975. "

Both parties admitted that it is fairly good translation and they do not dispute its correctness.

( 7 ) IN para 9 of the judgment, the learned District judge has referred to the case of Parvathy Nadachy umayparvathy Nadachy vs Ramalekshmy Seethalekshmy Ammal [air 1956 Tra. C. 127], in which it is observed that the essential characteristic of a will is that it is a more declaration of an intention so long as the testator is alive, a declaration that may be revoked or varied according to the variations in his intention; a disposition that requires the testator's death for its consummation and it is but ambulatory or without fixed effect until the happening that event. A gift, on the other hand is a transfer of property that is voluntary, gratuitous and absolute-conferring immediate rights.

( 8 ) SECTION 2 (h) of the Indian Succession Act, 1925 defines "will" as follows :

""will" means the legal declaration of t

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