JUDGMENT

T.S. THAKUR, J. — 1. This appeal by special leave arises out of a judgment and order dated 4th March, 2002 passed by a Division Bench of the High Court of Madhya Pradesh at Jabalpur, Gwalior Bench, whereby Letters Patent Appeal No.75/1994 has been allowed in part and the judgment and decree passed by the First Appellate Court modified.

2.The facts giving rise to the filing of a suit for partition and separate possession by the plaintiff-respondent no.1 in this appeal have been set out in the judgment under appeal hence do not bear repetition. All that need be stated is that respondent no.1 the plaintiff in the suit claimed partition of what was described by him as joint family property with his father Shri Panna Lal-defendant no.1 as the ‘Karta’ of the joint family. During the pendency of the suit Shri Panna Lal died giving rise to an additional issue as regards the devolution of the property left behind by him including his share in the joint family property. The appellant set up a Will allegedly executed by Shri Panna Lal according to which the share of the deceased testator was to devolve exclusively upon the former. The suit filed by the respondent was eventually decreed by the Trial Court holding plaintiff respondent no.1 entitled to 1/5th share in the joint family property and the goodwill of the joint family business. The Court also found that the Will set up by the appellant herein had been duly proved and that in terms thereof the property left behind by Shri Panna Lal would devolve exclusively upon the appellant.

3.Both the parties filed appeals which were heard by a learned Single Judge of the High Court of Madhya Pradesh who formulated the following two questions for determination and finally dismissed the appeal by his orders dated 26.9.1994:

(1)Whether the plaintiff took a sum of Rs.21,000/- out of share in the capital of the defendants as alleged or it was taken by him as his share in the capital, house and other properties as claimed by the defendants ?

(2)Whether the plaintiff has got any share in the joint property if any in dispute and if so to what extent ?

4.In so far as question no.1 is concerned, the learned Single Judge affirmed the finding recorded by the Trial Court that the plaintiff had taken his share in the capital and interest etc. and not his share in the house and the other properties. The finding of the Trial Court that the plaintiff had a share in the goodwill of the family business was also affirmed.

5.Even in regard to the second question the findings recorded by the Trial Court was affirmed. The High Court held that the service of a notice by the plaintiff about his intention to separate had brought about a division in joint family shares and that the plaintiff was entitled to have his share in the property in the joint family ascertained and partitioned. The High Court noted that while the plaintiff and his brothers had 1/5th share each, the plaintiff’s claim for a larger share on account of the death of his father and devolution of the latter’s estate upon all the brothers by succession had to be seen in the light of the Will propounded by defendant-appellant Gopal Swaroop. The High Court then proceeded to discuss the evidence relating to the execution of the Will by Shri Panna Lal including the deposition of DW-2 Shri Vilas Tikhe in support thereof and recorded a finding that the execution of the Will had been satisfactorily established. The High Court also rejected the contention that there were any suspicious circumstances surrounding the Will which the High Court noted was a registered document. The High Court in conclusion held that the plaintiff had 1/5th share in the house in question and the goodwill of the business and affirmed the finding of the Trial Court to the effect that the plaintiff had 1/8th share in the jewellery items and the amount representing the share of Saraswatibai held in deposit in the firm.

6.Dissatisfied with the view taken by the learned Single Judge res