IMPORTANT POINT
Once an absolute interest is created in favour of any person, then there cannot be any restriction in the manner in which such interest has to be applied or enjoyed.

A.S. Chandurkar, J.—This appeal filed under Section 100 of the Code of Civil Procedure, 1908 is by the original defendant who is aggrieved by the decree for possession passed by the trial Court and confirmed by the appellate Court.

2. Facts relevant for adjudication of the appeal are that the suit property is agricultural land bearing Gat No. 447, admeasuring 4 hectares 22 Are along with a well. One Baliram had two wives. The plaintiff – Anusuyabai and defendant – Jaywant are the issues from the second wife. On 2nd September, 1954, a partition took place between Baliram and his issues from the first wife. Thereafter, on 8th May, 1969, another partition took place between Baliram and his issues from his second wife. In that partition, the suit property was allotted to Baliram. On 17th June, 1991, said Baliram executed a Will and bequeathed the property in favour of Anusuyabai. Baliram expired on 13th May, 1993. As Jaywant took forcible possession of the suit property, the plaintiff filed suit for possession with a further declaration that she had become owner of the said property by virtue of Will dated 17th June, 1991. It was her case that said Will being last Will of Baliram, she was entitled to possession of the suit property.

3. Jaywant filed his Written Statement and took the stand that though in the partition of 1969, the suit property was allotted to Baliram, in the said Partition-Deed itself it had been stated that Baliram had life interest in the suit property and after his death, the two sons – Jaywant and Anant would become owners of the same. By filing a counter-claim, the Will dated 17th June, 1991 was also challenged.

4. The parties led evidence before the trial Court. The trial Court held that the plaintiff had proved the Will dated 17th June, 1991 and that she became owner of the suit property. It further held that the clause in the Partition-Deed dated 8th May, 1969 conferring limited interest on Baliram did not have legal effect, inasmuch as said document of partition required registration. The trial Court, therefore, decreed the suit.

The appellate Court on re-consideration of the evidence on record confirmed the finding recorded by the trial Court with regard to genuineness of the Will dated 17th June, 1991. It further held that the Partition-Deed did not require any registration and that the clause conferring further interest on the two sons of Baliram after his death did not have any legal effect. The appeal accordingly came to be dismissed.

5. The following substantial question of law has been framed while admitting the Second Appeal:—

“Whether having made a family arrangement in the year 1969 and having put the appellant in possession of his share the effect thereof only having been made contingent to his demise, whether said Shri Baliramji could have made will in respect of appellant’s share of 10 acres of land.”

6. Shri M.M. Sudame, learned counsel for the appellant, submitted that the appellate Court committed an error by not giving full effect to the Partition-Deed at Exh.50. Though it was held by the appellate Court that the Deed did not require registration, it ignored the legal effect of the clause in the Partition-Deed by which life interest was created in the said property in favour of Baliram and his wife –Yashodabai and after their death, their sons were to have equal share therein. He submitted that the parties to the Partition-Deed had consciously incorporated said term in the Partition-Deed and Baliram had received his share with that condition. According to him, full effect was required to be given to that condition and by not doing so, the appellate Court committed an error. In aforesaid backdrop, it was submitted that Baliram had no legal right to dispose of the property by executing a Will. He was, in fact, estopped from doing so after having conditionally executed and thereafter having accepted the Partition- Deed dated 8th May, 1979. Relying upon the judgment of the Ho