ORAL JUDGMENT

1. Being aggrieved and feeling dissatisfied with the judgment and decree of the Appellate Court, Surat passed in Regular Civil Appeal No. 33 of 1981 dated

17.11.1981, the original defendant has preferred this Second Appeal under Section 100 of CPC. The appellant is the original defendant- respondent and the present respondent is the original plaintiff- appellant. It is contended that the respondent had filed a Suit against present appellant being Suit No. 108/1978 for the partition alleging that the properties are of the joint family properties and possession of his 1/2 share in the suit property. According to him, the trial Court, by its judgment and decree dated 31.12.1980, dismissed the suit of the plaintiff against which the plaintiff has filed First Appeal No. 33/1981, wherein the First Appellate Court allowed the Appeal filed by the plaintiff.

2. For the brevity and convenience the parties are referred to herein as plaintiff and defendant.

3. The defendant has challenged the judgment of the First Appellate Court on the ground that the First Appellat Court has erred in holding that the Diwala Gausa was not in sound state of mind and he did not understood the effect of the disposition he has made. According to defendant, the learned Appellate Court overlooked the fact that after marriage of the plaintiff, the plaintiff has been residing at his Father- in-law's house at Ghantoli. It is also alleged that the learned Appellate Court has not considered the important fact that the defendant's father died before 30 years so the deceased Diwala Gausa had naturally more love and affection to his grand-son, who lost the love of his father at the age of around 12 or 14 years forever. It is also contended that the learned Appellate Court has misread the evidence on record. It is also contended that the plaintiff in his evidence admitted that his father Diwala Gausa died at the age of was 65 years. This fact is not properly considered by the learned Appellate court. It is also contended that the learned Appellate Court has not properly appreciated the evidence on record. That the version of the defendant and his witnesses ought to have been believed by the learned Appellate Court and learned appellate Court ought not to have set aside the well reasoned judgment and decree of the learned trial Court. It is also contended that the learned first appellate Court has mis-read the evidence of the defendant’s witnesses and also the documentary evidence i.e. “Will”. It is also contended that the observation of the learned first appellate Court that at the time of execution of the Will false statement was made that no son of the deceased is alive, is contrary to the documentary evidence on record. The defendant has prayed to set aside the impugned judgment of the first Appellate Court and restore the judgment and decree of the trial Court passed in Civil Suit No. 108/1978.

4. The defendant-appellant has raised almost 4 substantial questions of law. However, this Court has raised the following questions of law.

(1) Whether on the facts and circumstances of the case, the lower Court has committed error in holding that the Will on which the appellant relied on is a Will executed by the deceased Diwala Gausa in sound state of mind on

11.1.1975?

(2) Whether after the appellate Court came to the conclusion that the plaintiff does not prove that the suit properties are undivided family properties and erred to decree the suit of the plaintiff for one half share in the Suit property?

5. Heard learned advocate Ms. Dhara Shah for the appellant and Mr. Nagesh Sood, as amicus-curiae for the respondent through video-conferencing at length.

6. The facts leading to the present Appeal are as under: 6.1 The plaintiff has filed the Suit for partition of the suit-

properties which consist of two agricultural lands bearing Survey No. 55, admeasuring 2 Acres, situated in the Sim of village – Talsada- Khurd and the agricultural land bearing Survey No. 30 admea