Radha Mohan Prasad, J.

This appeal is directed against the judgment and decree dated 20-12-76 and 9-1-77 respectively, passed in T. S. No. 31/7 of 1971 /1976 filed by Sancharia Devi, plain-tiff respondent first party in the present appeal seeking partition of the suit property to the extent of her share in her father's property.

After her death she has been substituted by her heirs as respondent Nos. 1 (a) to 1 (d) vide order dated 28-2-1996. The suit has been decreed and plaintiff has been given 1/3 share in her father's 1/2 share of the suit properties. Defendant Nos. 2 and 3 have filed the present appeal, in which defendant No. 1 has been added as respondent second party and defendant No.4 as respondent-third party. Defendant No.4 Sonawati Devi had also filed appeal bearing F. S. No. 302/77 against the impugned judgment and decree, in which learned Counsel for the appellant stated that he had no instruction to press the appeal and the said appeal was accordingly dismissed as not pressed.

2. The dispute in the present appeal is with respect to the suit property of Komal Mahto. According to the plaintiff Komal Mahto died in the year 1963 leaving behind his son defendant No. 2 (appellant No.1 here in) Chamru Mahto alias Chamari Mahto and her mother Govati. Plaintiff claimed that she has been coming in possession of the suit property described in schedules I and II of the plaint along with defendant Nos. 1 and 2 and that there is unity of title and possession between them with respect to the properties described in the said schedules.

3. It is alleged that father-in-law of her brother defendant No.2 is causing trouble in the enjoyment of her share in the property and hence, the plaintiff made demand for partition and on refusal of the same, filed the present suit. Defendant No. 1 Govati Devi appeared and filed her separate written statement, in which she supported the case of the plaintiff. In the written statement she admitted that the plaintiff is her daughter and has been married to one Ram Chandra Mahto of village Sahara. P.S. Sarmera, District Nalanda and that defendant No. 2 is her son. She has alleged that her daughter-in-law (defendant No.3) created a deed of gift executed by her under influence of some persons mentioned therein in the garb of saving the property from being taken over by the Government. It is alleged that the said persons taking advantage of her illiteracy got the deed ascribed without reading or explaining the contents of the deed to her giving an impression that it was a deed of partition.

4. Defendant No. 2 also appeared and filed separate written statement and contested the suit. He denied the cause of action and unity of title or possession of the plaintiff over the suit property. He contended that the plaintiff is sister's son his mother (defendant No.1). He relied upon the deed of gift, executed by her mother in favour of his wife. It is alleged by him that his mother supported the case of the plaintiff in the written statement under influence of the plaintiff's husband. His further case is that actually Saraswati Devi, intervener defendant No. 4 is the only daughter of his father late Komal Mahto and he did not accept the correctness of the genealogical table given by the plaintiff in the plaint.

5. Defendant No. 3 filed separate written statement and contested the suit supporting the written statement filed by her husband in its entirety. The intervener defendant No.4 also filed separate written statement and contested the suit. She also has supported the written statement of defendant No. 2 in its entirety. She has asserted that she is the only daughter of late Komal Mahto.

6. It is not in dispute that Komal Mahto and his wife Govati had one son and one daughter out of whom Chamru Mahto was his son. The only dispute is with respect to the fact that whether Sancharia Devi or Saraswati Devi was daughter of late Kamal Mahto. Both the parties led evidences and the Trial Court on consideration o