JUDGMENT :

1. This second appeal preferred by the appellant/defendant No. 1 was admitted for hearing on 31/03/2008 by formulating the following substantial question of law :-

“Whether due to a clear denial by the appellant/defendant Trilochan regarding the execution of will dated 03.10.1975 by Ramdhani, the Courts below were not justified in holding that the said will is not required to be proved in accordance with law?”

[For the sake of convenience, the parties will hereinafter be referred to as per their status and ranking given in the plaint before the trial Court.]

2. The suit property was admittedly held by Ramdhani, who had two wives namely Likhaniyabai and Sirvatiyabai respectively. Out of his wedlock with Likhaniyabai, Ramdhani had one daughter namely Leelawati and defendant No. 2 is the son of Leelawati; and out of his wedlock with Sirvatiyabai, Ramdhani had one daughter namely Kheermati and plaintiff and defendant No. 1 are sons of Kheermati.

3. It is the case of the plaintiff that defendant No. 2 filed an application under Section 178 of Chhattisgarh Land Revenue Code, 1959 before the Court of Naib Tahsildar, Pendra Road wherein by order dated 28/04/1994 (Ex. D/5) the Tahsildar held that plaintiff as well as defendant No. 1, both being the sons of Kheermati, would jointly take ½ share in the suit property and defendant No. 2, being the son of Leelawati, would take the other ½ share in the suit property and accordingly partitioned the suit property. The appeal preferred by the plaintiff against the order of the Tahsildar also remained unsuccessful. Now, the plaintiff has filed the instant suit for declaration of title and partition stating inter alia that suit property was earlier held by Ramdhani, who had executed a Will deed dated 03/10/1975 (Ex. P/1) in favour of plaintiff and defendants No. 1 and 2 that each one of them will take 1/3rd share in the suit property, therefore, decree for partition be passed and plaintiff as well as defendants No. 1 and 2 be declared as titleholders of 1/3rd share each.

4. Defendant No. 1 supported the stand of the plaintiff whereas defendant No. 2 filed his separate written statement stating inter alia that the Naib Tahsildar has already made partition by order dated 28/04/1994 (Ex. D/5), which is absolutely in accordance with law as plaintiff and defendant No. 1, both are sons of Kheermati, daugther of Ramdhani born out of his wedlock with his second wife Sirvatiyabai whereas defendant No. 2 is the son of Leelawati, daughter of Ramdhani born out of his wedlock with his first wife Likhaniyabai, therefore, plaintiff as well as defendant No. 1 would jointly take ½ share and defendant No. 2 would take ½ share in the suit property. In paragraph 3 of his written statement, defendant No. 2 further pleaded the Will (Ex. P/1) to be a forged document and stated that no title/interest has been received by plaintiff and defendant No. 1 on the basis of the said Will.

5. Learned trial Court, upon appreciation of oral and documentary evidence on record, decreed the suit by its judgment and decree dated 28/07/2001 holing that plaintiff has proved due execution and attestation of Will (Ex. P/1) and specifically recorded a finding in paragraphs 13 and 14 of the judgment that no specific plea has been raised by defendant No. 2 in his written statement qua valid execution and attestation of the Will, as such, on the basis of the said Will, plaintiff as well as defendants No. 1 and 2, each of them will take 1/3rd share in the suit property. On appeal being preferred by defendant No. 2, learned first appellate Court affirmed the findings recorded by the trial Court and dismissed the appeal by its impugned judgment and decree dated 22/03/2007 against which this second appeal under Section 100 of CPC has been preferred by the appellant/defendant No. 2, in which substantial question of law has been framed and set out in the opening paragraph of this judgment.

6. Mr. Ravindra Agrawal, learned counsel for the appel