The central legal point established in the judgment is the restrictions on the power of a Karta to sell coparcenary property and the requirements for the validity of a Will in the context of joint family property.

JUDGMENT

1. This second appeal preferred by the appellants/defendants herein was admitted for hearing on the following two substantial question of law :

''1. Whether both the Courts below were justified in arriving at a finding that Dariyavsingh was not competent to sell his undivided share ?

2. Whether both the Courts below were justified in holding that will executed by Phafibai was not genuine ?''

(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)

2. The following genealogical tree would demonstrate the relationship between the parties :

3. The suit property (land as well as house) mentioned in Schedule ''A'' and ''B'' annexed with the plaint situated at Village Takam, Tahsil Berla was originally held by Dariyav Singh. He and his wife Phafibai had two sons namely defendant No. 1 - Hinchharam and Guharam; and two daughters namely defendant No. 4 - Kaijabai and defendant No. 5 - Dheliyabai. The three plaintiffs are widow and daughters of Late Guharam. Defendants No. 2, 3 and 6 are Hinchharam''s sons namely Churaman, Khemraj and Dilip respectively.

4. Plaintiffs filed a civil suit only for possession and mesne profit stating inter alia that the suit property was the ancestral property of their husband/father Guharam therefore, Dariyav Singh could not have alienated the suit property in favour of defendants No. 2 and 3 vide registered sale deeds dated 18/03/1971 (Exhibits P/1 and P/2) and thereafter, Phafibai i.e. widow of Dariyav Singh was also not competent to execute Will deed dated 15/07/1979 in favour of defendant No. 6 - Dilip, as such, the plaintiffs are entitled for partition and possession of the suit property as well as mesne profit.

5. The defendants set up a plea that the suit property fell in share of Dariyav Singh during partition, therefore, he has rightly and competently alienated the suit property in favour of defendants No. 2 and 3 by sale deeds dated 18/03/1971 (Exhibits P/1 and P/2) and after his death, his widow Phafi Bai has rightly bequeathed the suit property in favour of defendant No. 6 by Will dated 15/07/1979, as such, the plaintiffs are not entitled for possession of the suit property shown in Schedule ''A'' and ''B'' annexed with the plaint.

6. Learned trial Court, after appreciating the oral as well as documentary evidence on record, vide its judgment and decree dated 11/09/2000, decreed the suit of the plaintiffs holding that the plaintiffs are titleholders of 3/8 th share in the suit property mentioned in Schedule ''A'' and ''B'' annexed with the plaint and also entitled for possession of the same as well as mesne profit.

7. On appeal being preferred by the defendants, learned first appellate Court, by its judgment and decree dated 25/02/2004, affirmed with the rest of the findings recorded by the trial Court though held that plaintiff No. 1 is entitled for 1/16th share and plaintiffs No. 2 and 3 are entitled for 229/640 in the suit property mentioned in Schedule ''A'' and ''B'' annexed with the plaint.

8. Questioning the judgment and decree passed by both the Courts below, this second appeal under Section 100 of the CPC has been preferred by the defendants No. 1, 2, 3 and 6/appellants herein in which two substantial questions of law have been framed and set out in the opening paragraph of this judgment.

9. Mr.Shashi Bhushan Tiwari, learned counsel for the appellants/defendants would submit that the suit property fell in share of Dariyav Singh in partition and therefore, he has rightly alienated it in favour of defendants No. 2 and 3 vide sale deeds dated 18/03/1971 (Exhibits P/1 and P/2) which was not sought to be declared illegal or invalid by the plaintiffs while filing the suit, as such, both the Courts below ought not to have set aside the said sale deeds and moreover, the Will executed by Phafi Bai in favour of defendant No. 6 has already been proved by examining two attesting witnesses i.e. D.W. 2 na