N.V. Anjaria, J.

1. The present Second Appeal is directed against judgment and decree dated 4th January, 1991 passed by Assistant Judge, Surendranagar in two Regular Civil Appeal Nos. 43 of 1985 and 44 of 1985. Regular Civil Appeal No. 43 of 1985 was an Appeal preferred by the original plaintiff-Valand Lalji Arjan, whereas Regular Civil Appeal No. 44 of 1985 was by Rana Bharatsinh Jasubha, who is appellant herein and who was original defendant No. 10. Learned Assistant Judge allowed Regular Civil Appeal No. 43 of 1985 and dismissed Regular Civil Appeal No. 44 of 1985. It was declared that the plaintiff and defendant Nos. 1,2, and 4 to 8 are entitled to one-eight share each in the suit properties.

1.1. The aforesaid two Regular Civil Appeals culminating into the impugned judgment and decree arose from judgment and decree passed in Regular Civil Suit No. 8 of 1977 decided on 31st December, 1984 by learned Civil Judge (J.D.), Limbdi. It was a suit wherein plaintiff claimed relief of partition and declaration of one-fourth share in the suit properties with other incidental prayers. The trial Court dismissed the suit of the plaintiff, directed that defendant Nos. 4 to 8 were entitled to their share individually being Rs. 937-50 Paisa from defendant No. 10-appellant herein. The appellant herein-defendant No. 10 was the subsequent purchaser of the suit properties, claiming that he was a bona fide purchaser for value.

At the time of admission of present Second Appeal, substantial questions of law framed by the Court are as under:

(i) What would be the effect of Hindu Succession Act, 1956 when succession opens after coming into operation Succession Act and one of the sharers happened to be a widow?

(ii) Whether Exh. 104, 105 and 107 would amount to relinquishment? If so, what is their effect?

(iii) Could a widow be a Manager of Hindu Undivided Family under Hindu Law?

1.2. In course of the consideration of the matter, upon going through the pleadings and submissions made by learned Advocates for the parties, a substantial question of law was found to be arising. It was framed as under:

Having regard to the specific pleading of the plaintiff in the plaint that father Arjan Ghela died prior to coming into force Hindu Succession Act, 1956 coupled with the fact that defendant Nos. 1 and 2 admitted in the written statement the said position pleaded, whether it was permissible in law to allow and adduce evidence against and divergent to the said pleadings?

2. Plaintiff and defendant Nos. 1 and 2 are the brothers whereas defendant Nos. 4 to 8 are sisters, they being they sons of deceased-Arjan Ghela. Defendant No. 3-Ramaben happened to be the mother of the parties and wife of said Arjan Ghela. The case pleaded by the plaintiff in his plaint may be noted with relevance. It was the case of the plaintiff-Valand Lalji Arjan that his father-Valand Arjan Ghela died several years back at Village' Borna. It was stated in the first Paragraph of the plaint further that father-Arjan Ghela had expired prior to coming into force of Hindu Succession Act, 1956. A family pedigree was produced. It was the further case of the plaintiff that deceased father, plaintiff and defendant Nos. 1 and 2-the brothers of the plaintiff - were all staying together at Village Borna, and had in their names the land and residential houses, descriptions of which were given in Paragraph 2 of the plaint. They were the suit properties comprising of Wadi survey No. 4, agricultural field Survey No. 552, two residential houses and a house and other two houses as described. It was the case that plaintiff, his father and said brothers were in joint possession of the suit properties. The plaintiff further stated that the suit land was cultivated by him personally and produce earned therefrom was being enjoyed in common.

2.1. It was further the case of the plaintiff and defendant Nos. 1 and 2 that since they were unable to maintain their families out of the income of the suit land, they tra