JUDGMENT :

In this appeal the appellant having been aggrieved by the judgment and decree passed by the learned Civil Judge (Sr. Division), Kamakhyanagar in C.S. No. 50 of 2007 as confirmed by the learned District Judge, Dhenkanal in R.F.A. No. 40 of 2009 calls in question all the concurrent findings as also the ultimate result in preliminarily decreeing the suit filed by the respondent no. 1 as the plaintiff allotting 1/6th share to her over the suit property and for partition accordingly.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. Plaintiffs case is that the suit land originally belonged to her father, Bhagat Nayak who died in the year 1990 and on his death; the same was succeeded by his widow, the defendant no. 2; son, the defendant no. 1 and four daughters including herself (plaintiff) and defendant no. 3 to 5.

It is stated that Bhagat had constructed a house over the land under Hal Khata No. 209 and was in cultivating possession of the land under Hal Khata No. 174. The suit properties are said to have never been partitioned by metes and bounds after the death of Bhagat and each of them have equal share over it.

The plaintiff being the unmarried daughter is residing on a portion of the suit house and since the defendant no. 1 expressed to be the exclusive owner of the suit property and that the plaintiff had no share over it and as he lastly also attempted to drive her out which somehow got foiled due to intervention of local gentlemen since the threat still persisted, the suit for partition came to be filed.

4. The defendant no. 1 alone contested the suit pleading inter alia that he alone succeeded to the entire property of his father Bhagat, when other parties have no interest at all. It is stated that Bhagat during his lifetime having executed a Will bequeathing entire property in his favour, he has become the owner in possession of the same on the death of Bhagat. He has nonetheless placed a counterclaim on that score for a declaration to that effect and also in the alternative to allow him to purchase the suit land being the preferential owner in exercise of said right.

5. The trial court faced with above rival case has framed in total six issues and rightly has taken up for decision, the two important issues as regards the claim of partition entitling her with 1/6th share over the suit property as also the claim of the defendant no. 1 based on said Will purported to have been executed by Bhagat during his lifetime. On discussion and taking into account the settled position of law, the decision has been rendered that the plaintiff is entitled to 1/6th share over the suit property and so also other parties to that extent, in simultaneously answering that the defendant no. 1 has failed to prove due execution of the will as is required in law and as such he has derived no right, title and interest whatsoever over the suit property by such will.

The other prayer for his purchase has been declined since none of the parties have at all expressed the desire in that light of transfer and the trial court has thus not felt the need to proceed further in that direction.

6. The unsuccessful defendant no. 1 having next moved by filing the first appeal has also failed in setting at naught any of the finding of the trial court as also the judgment and preliminary decree as passed by trial court which have thus stood confirmed. Therefore, the present move is before this Court by filing this second appeal under section 100 of the Code of Civil Procedure.

7. The appeal has been admitted by order dated 03.02.2012 on the following substantial questions of law:-

1. Whether the courts below are correct in holding that the daughter-plaintiff is entitled in 1/6th share instead of 1/8th share in respect of suit schedule properties, left by her father when admittedly the succession opened immediately after the death of t