The following judgment of the Court is delivered by Goutam Bhaduri, J,

1. The instant appeal is against the judgment and decree dated 29.01.2022 passed by the learned Ist Additional District Judge, Bilaspur (C.G) in Civil Suit No.22-A/2017 in favour of the respondents / plaintiffs in respect of property situated at Juna Bilaspur and the lands situated at village Ranigaon, Sub-Tahsil Ratanpur, Tahsil Kota and Mouja Sirgitti Bilaspur whereby the decree is passed for partition and possession to the extent of 1/13 to the plaintiff Shankar Lal and other share-holders. The decree would not include the sale of lands made by Bhagwan Deen, Surja Bai and Pritamlal Loniya in respect of Khasra Nos. 500, 501 & 601 situated at Juna Bilaspur. In sum and substance, by judgment and decree the plaintiff and defendants have been held to be to be entitled to partition and possession to the extent of 1/13 in respect of the property situated at Juna Bilaspur as stated above and the land bearing Kh.No.1757 admeasuring 0.352 hectares situated at village Ranigaon Sub-Tahsil Ratanpur, Tahsil Kota and the property of Kh. No.811/1Dha, 811/16, 812/1ga, 813/1ga admeasuring 0.012 hectares. .

2. The brief facts of the case are that Shankar Lal Loniya (since deceased) who is now represented by his legal representatives i.e., wife Smt. Sudha Singh Chauhan (R-1), son Sashram Singh Chauhan (R-2) and daughter Niyati Chauhan (R-3) filed a suit claiming partition, declaration of title and possession.

3. In order to understand the status of parties to the lis, the genealogical tree would be necessary which is reproduced hereinbelow :

4. The aforesaid family tree would show the death of Bhagwandeen, who is grand father of the plaintiffs and defendants, took place way back on 25.10.1976. Bhagwandeen married twice. Surja Bai was the first wife and Ganga Bai was the second wife. Both of them are dead. Surja Bai had a son namely Pritam Lal who was defendant no.1 in the suit. Pritamlal also died in 2014 during the pendency of the civil suit. His first wife Sita Devi who was defendant no.5 in the suit died in Sept. 2014 and second wife Kanti Devi who was defendant no.8 also died in Dec. 2020. Preetam Lal had 3 sons from first marriage namely Ramsanehi who was defendant no.2, Bharatlal (Defendant no.3) and Pawanlal (Defendant no.4) and 5 daughters of Pretam Lal from first marriage namely Saraswati, Shashi, Triveni Devi, Savitri Devi Smt. Madhu were also arrayed as defendants 6, 7, 9, 10 and 11 respectively. During the course of trial Smt. Madhu, defendant no.11 died, as such, her legal heirs Prahlad Singh Chauhan, Kartik Chouhan and Harshit Chouhan were brought on record as defendants 11-A, 11-B and 11-C respectively.

5. From second wife of Preetamlal namely Kanti Devi, son Shanker was born who was plaintiff and during the pendency of the suit he died thereby his legal heirs Smt. Sudha Singh (wife) Saksham Singh (son) and Niyati Chauhan (Daughter) were arrayed as Plaintiffs 1(a), 1(b) and 1(c) whereas daughters of Pritam Lal & Kanti Devi namely Smt. Santoshi Devi , Saroj Devi, Pratima Devi and Smt. Priti were arrayed as defendants 12, 13, 14 and 15 respectively.

6. It is not in dispute that on 08.09.1958 Bhagwandeen purchased land bearing Kh.No.501/1 admeasuring 1.44 acres from Sheik Mohammad and Iqbal Mohmed. The lands are situated at Juna Bilaspur. Likewise, on 04.11.1963, another land of Kh.No.601 admeasuring 0.10 acres situated at village Juna Bilaspur was purchased. The land bearing Kh.614 admeasuring 0.04 acres at Juna was also purchased. Likewise, Kh.No.500 admeasuring 0.057 acres at Juna was purchased vide sale deed dated 04.11.1963 by Bhagwandeen thereby the total land at Juna Bilaspur was comprised of 2.15 acres. Out of 2.15 acres, part of it was sold by Surja Bai and Bhagwandeen during their lifetime and therefore, the suit property of 2 acres remained as on the date of litigation. After death of Bhagwandeen in 1976, names of his wife Surja Bai and Pritamlal were mutated in revenue records. On 04.04.1971 Preetamlal relinquished his right and executed a deed of relinquishment Ex.P-2 in favour of his mother Surja Bai. Thereafter, the name of his mother Surja Bai was solely recorded in revenue records. The plaintiff further pleaded that during the life time of Surja Bai (first wife), Gangabai was made as second wife by Bhagwandeen. On 22.09.1982 a partition was effected in between Surja Bai, widow of Bhagwandeen, son Preetamlal and second wife Ganga Bai. It was stated by the plaintiff that in respect of the lands situated at Juna Bilaspur bearing Kh. Nos. 601, 614, 500, 501, those lands could not be partitioned as Ganga Bai was not the legally wedded wife of Bhagwandeen and pleaded that Ganga Bai would not get any right to have a partition in such property.

7. The plaintiff further stated that with passage of time, defendant Preetam Lal Loniya (since deceased) sold an area of 5850 sqft of Kh.No.500, 501 on 02.12.1982. Subsequently on 08.03.1983 another part and parcel of land 2460 sqft was sold and thereafter, an area 6050 sqft was sold on 09.03.1983 and lastly an area of 4441 sqft was sold on 14.07.1983 to Ramayan Sharma,

8. The plaintiff further stated that Preetamlal Loniya being co-parcener was not the sole owner could not have relinquished the entire land and further the plaintiff pleaded the said property which was said to have bequeathed by a will by Surja Bai and Ganga Bai on 27.04.1987 by a registered will in favour of Ram Sanehi (D-2), Bharatlal (D-3) and Pawanlal (D-4), the same could not have been given effect too as Surja Bai and Ganga Bai were never acquired the ownership right over the said lands.

9. The plaintiff further states that Shanker Loniya had earlier filed a Civil Suit No. 85-A/2011 before the first Civil Judge, Class II, Bilaspur for declaration and permanent injunction which was dismissed as withdrawn with liberty to file afresh. The plaintiff pleaded that those properties at Juna Bilaspur is a property of the joint Hindu family, therefore, the Limitation Act would not apply for partition and possession. However, since in the month of April, 2011 defendants 1 to 4 tried to dispossess the plaintiff, the cause of action arose. Whereas, the suit property at Sirgitti Bilaspur and Ranigaon Tehsil Ratanpur were self acquired property of Preetamlal.

10. The plaintiff further states that the property sold by Preetamlal should be included in the share of the respondents and accordingly 1/15th share was claimed by way of partition and separate possession.

11. The defendants 2 to 4 all sons of Preetamlal namely Ramsanehi (D2), Bharatlal (D-3) and Pawanlal (D-4) along-with daughters Saraswati (D-6), Sahashi (D-7), Triveni Devi (D-9), Savitri Devi (De10) and Madhu (D-11) denied the allegations of the plaint. It was stated that though the plaintiff pleaded that the property was copercenery property and the part of the land was sold to Ram Sharan Sharma by 4 different sale deeds in 1982 and 1983, the purchaser was not arrayed as a party to the suit. The defendants further stated that claim for the entire suit property claiming partition and possession by plaintiff Shankar Lal and defendants Santoshi Devi (D-12), Saroj Devi (D-13), Pratima Devi (D-14) and Priti (D-15) the daughters could not be granted as they were not the legitimate off-spring of Preetamlal, therefore, they would not get any right as Kanti Devi, the mother of plaintiff was never legally married to Preetamlal.

12. On the basis of pleading, the learned Additional District Judge framed six issues and held that the property at village Juna Bilaspur is the ancestral property of plaintiffs and the defendants (both) whereas the property of Tahsil Kota (Sub-Tahsil Ratanpur) and Mauja Sirigitti was self-acquired property of Preetam Lal. Accordingly, the finding was that after death of Preetam Lal, the plaintiff would be entitled to their share and since some of the parties died during pendency of civil suit, a decree for partition and possession to the extent of 1/13 was allowed over all the 3 properties situated at Juna, Bilaspur; Ranigaon Sub-Tahsil Ratanpur, Tahsil Kota and Mauja Sirigitti (Bilaspur). The suit for partition and separate possession having been decreed in favour of plaintiffs, the instant appeal has been preferred by the sons and daughters who were born from first wife of Preetamlal namely Sita Devi.

13. The learned counsel for the appellant/defendants would submit that it is not disputed that plaintiff Shanker is son of Kanti Devi who was not legally married to Preetamlal and the status of plaintiff along with his sister could not have claimed for partition. He further submits that as per The Hindu Succession Act 1956 after death of Bhagwandeen, two widows namely Surja Bai and Ganga Bai both would get one unit of share to be divided in between them along with son Preetamlal. He further submits that after execution of relinquishment deed by Preetamlal in favour of his mother Surja Bai (first wife of Bhagwandeen), Surja Bai became absolute owner and Ganga Bai, who also held a share along with Surja Bai as per Section 10 of the Hindu Succession Act, 1956 and they entered into family arrangements by execution of partition deed whereby property of Juna Bilaspur was partitioned amongst (i) Surja Bai, (ii) Ganga Bai & (iii) Preetam Lal. It is further submitted that:-

i) by such partition Surja Bai got part of Khasra No.501/1, Kh. No. 500 & Kh. No.601, total area of 0.312 Hectares. It is further stated that Surja Bai had sold part of land on 13/07/1984 to one Mulk Raj.

ii) Likewise, Ganga Bai got a land of Kh. No.501/1 & 500 total 0.256 Acres.

iii) By such partition, Preetam Lal got an area of Kh. No.500 & 501/1 total admeasuring 0.256 Acres. It is stated that Preetam Lal also executed 4 (four) sale deeds in favour of Ramnarayan Sharma and part of land remained which was in the name of Preetam Lal.

14. It is further stated that the rest of the owners of the land, Surja Bai and Ganga Bai executed a WILL in favour of Ramsanehi, Bharat Lal and Pawan Loniya. It is contended that the said WILL having been proved by Ex. P/9, the entire property fell to the share of Ramsanehi, Bharat Lal and Pawan Loniya after death of Ganga Bai on 22/12/1988 and Surja Bai on 21/12/1990. It is submitted that the plaintiff cannot claim any right in respect of properties of Juna Bilaspur. It is further submitted that the parties to whom the part of properties were sold, were not made party, as such the suit was liable to be dismissed for non-joinder of parties.

15. He further submits that admittedly, Kanti Devi (second wife of Preetamlal) , through whom the plaintiffs are claiming was not a legally wedded wife and as per section 16(3) of the Hindu Marriage Act, the right would only confine to properties of the parents and the child from void or voidable marriages would not get any right over property of Juna Bilaspur. Therefore, granting right over the entire property including that of co-parcenery property cannot be sustained and thus the judgment of the court below is required to be interfered as the parties would not get any right over the entire property. He further submits that an application has also been filed under Order 41 Rule 27 CPC wherein the WILL dated 15th November, 2013 is stated to have been executed by Preetam Lal in favour of wife Sita Devi and her sons thereby the property has devolved on them and those documents may be taken on record as additional evidence. It is stated that the said application along with copy of WILL requires adjudication as it goes to the root of matter, which would decide the right of the parties to hold the share and the documents may be taken on record to hold that the property stands devolved on the propounder to the exclusion of the other.

16. Per contra, learned counsel for the respondents would submit that inference and scope of Section 96 of CPC in appeal would be a limited one. He would submit that if the relinquishment was made by Preetamlal in favour of his mother Surja bai, then how he can get back by partition. Therefore, the transaction inter-se between the parties would show the documents were created to defeat the legitimate right of the parties. He would submit that for the sake of argument even if the contention of the appellants are admitted about the legitimate claim of the plaintiff, the same cannot be defeated as section 16(3) gives legitimacy to the children and right over the property. He relied on case laws reported in (2009) 15 SCC 184 [LQ/SC/2009/1565] (M. Yogendra Vs. Leelamma N) and (2011) 11 SCC 1 [LQ/SC/2011/476] (Revanasiddappa Vs. Mallikarjun) and would submit that the plaintiffs were entitled to claim a partition over the entire suit properties i.e. Juna Bilaspur, Sirgitti and of Mouja Rani Gaon, Tehsil Ratanpur. Therefore, it is stated that the order of learned court below is well merited which does not call for any interference.

17. Heard learned counsel for the parties. In the instant case, 3 sets of properties are involved wherein the partition and separate possession has been ordered by the trial Court. The suit properties comprises of (i) Juna Bilaspur bearing Kh.No.501/1, Kh.No.500, 601 & Kh.614. It is not in dispute that out of 2.15 acres, certain part of lands were sold by Surja Bai and Bhagwandeen during their lifetime. According to the evidence on record, after the property of Juna Bilaspur was partitioned in between Surja Bai, Ganga Bai and Preetam Lal, some part of property was also sold by Preetam Lal. So, the decree of partition & possession to the extent of 1/13th has been passed over remaining lands of Juna Bilaspur.

18. Indisputably, the property of Juna Bilaspur as per the evidence of the plaintiff was purchased by Bhagwandeen in the years 1958 and 1963. The land of Khasra No.501 admeasuring 1.44 acres was purchased from Shaikh Mohamad & others on 09/09/1958 and Khasra No.601 admeasuring 0.10 acres was purchased on 04/11/1963 from Indira Bai. According to PW-1, out of total land of 2.15 acres Surja Bai had sold some part of land and only 2.00 acres land remains which is described as suit land. Bhagwandeen had not executed any WILL who died in 1976. According to the defendants, Bhagwandeen had two wives namely Surja Bai and Ganga Bai. Therefore, on death of Bhagwandeen the property would devolve to the Class-I heirs as per Section 8 of HSA , 1956. For the sake of brevity the relevant part of Section 8 & clause (a) of HSA, 1956 is reproduced hereunder.

“Section 8. General rules of succession in the case of males.-- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--

(a) firstly upon the heirs, being relatives specified in class I of the Schedule;”

19. The Class-I heirs of schedule since includes son & widow, the son Pritam Lal and widows of Bhagwandeen, Surja Bai and other widow would get the property. By virtue of Section 10 of HSA, 1956 Rule 1, when there are two widows or more widows, all the widows will take one share. For the sake of brevity relevant Section 10 & Rule 1 of HSA, 1956 is reproduced hereinbelow:-

“Section 10. Distribution of property among heirs in Class I of the Schedule.--The property of an intestate shall be divided among the heirs in Class-I of the Schedule in accordance with the following rules:-

Rule 1.- The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.

Rule 2.- The surviving sons and daughters and the mother of the intestate shall each take one share.

Rule 3.- The heirs in the branch of each pre-deceased son or each predeceased daughter of the intestate shall take between them one share.

Rule 4.- The distribution of the share referred to in Rule 3--

(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters gets equal portions; and the branch of his predeceased sons gets the same portion;

(ii) among the heirs in the branch of the predeceased daughter shall be so made that the surviving sons and daughters get equal portions.”

So by virtue of applicability of it Preetam Lal would get a share along with the two widows.

20. The suit was filed in the year 2012. In the array of parties, one of the appellants is shown to be of 40 years of age. Admittedly, death of Bhagwandeen took place in the year 1976 and on that date of death of original owner, one of the appellants Ramsanehi being his grand son had already born. Therefore, the succession had opened. In a consequence, the doctrine of equal ownership of father and son in the ancestral property would be created. Ramsanehi being grandson of Bhagwandeen shall have a right by birth in respect of properties of Juna Bilaspur. Subsequently, after death of Bhagwandeen, the other male issues were born to Preetam Lal.

21. Mitakshara co-parcenary carries a definite conception. It is a body of individuals having been created by law unlike a joint family which can be constituted by agreement of parties. A Mitakshara co-parcenery is a creature of law. The Supreme Court in case of Hardeo Rai v. Sakuntala Devi and others (2008) 7 SCC 46 (para 19) has reiterated the principles laid down in S.B.I. Versus. Ghamandi Ram (1969) 2 SCC 33 [LQ/SC/1969/69] (SCC PP. 36-37, Para5) which reads as under:

“5. According to Mitakshara School of Hindu Law all the property of Hindu Joint family is held in collective ownership by all the coparceners in a quasicorporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for joint family members then living and thereafter to be born (see Mitakshara, Chapter I, pp. 1-27). The incidents of coparcenership under the Mitakshara Law are :

first, the lineal male descendants of a person upto the third generation, acquire on birth ownership in the ancestral properties of such person;

secondly, that such descendants can at any time work out their rights by asking for partition.

thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest;

fourthly, that as a result of such coownership the possession and enjoyment of the properties is common;

fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and

sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except insofar that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter.”

22. The concept of Mitakshara shows that a son has right by birth in his father's and grandfather's estate. In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father while in the self-acquired property of father, his rights would be unequal by reason of father having an independent power or predominant interest in the same. The aforesaid principles is laid down in case of C.N. Arunachala Mudaliar Versus C.A. Muruganatha Mudaliar AIR 1953 SC 495 [LQ/SC/1953/89] . The relevant extract of para 12 is reproduced hereunder:-

“(12) So far as the first ground is concerned, the foundation of the doctrine of equal ownership of father and son in ancestral property is the well known text of Yagnavalkya : vide Yagnavalkya Book 2, 129 which says :

“The ownership of father and son is co-equal in the acquisitions of the grandfather, whether land, corody or chattel.”

It is to be noted that Vijnaneswar invokes this passage in Chap. I Section.5 of his work, where he deals with the division of grandfather’s wealth amongst his grandsons. The grandsons, it is said, have a right by birth in the grandfather’s estate equally with the sons and consequently are entitled to shares on partition though their shares would be determined ‘per-stripes’ and not ‘per capita.”

xxx xxx xxx xxx

“Excepting what is gained by valour, the wealth of a wife and what is acquired by science which are three sorts of property exempt from partition.; and any “favour conferred by a father’.”

Chapter I, Section 4 of Mitakshara deals with effects not liable to partition and property “obtained through the father’s favour” finds a place in the list of things of which no partition can be directed: vide section 4, placitum 28 of Mitakshara. This is emphasised in sec. 6 of Chapter-I which discusses the rights of posthumous sons or sons born after partition. In placitum 13 of the section it is stated that though a son born after partition takes the whole of his father’s and mother’s property, yet if the father and mother has affectionately bestowed some property upon a separated son, that must remain with him. A text of Yagnavalkya is then quoted that “the effects which have been given by the father and by the mother belong to him on whom they are bestowed” : vide Yagnavalkya 2, 124.

23. The evidence would show that Preetamlal (since deceased) son of Bhagwandeen executed a relinquishment deed Ex.P/2 on 04/04/1977 in respect of his share. The relinquishment deed was in favour of his mother Surja Bai. The property comprised in such relinquishment deed is (i) Khasara No. 614 (ii) Khasara No. 500 (iii) Khasara No. 501/1 and 601 situated at Juna Bilaspur. It was for a total area of 2.05 Acres = 0.829 Hectares. The said relinquishment deed of entire property was without the consent from other coparceners, the grandson Ramsanehi, being minor represented by any next friend. Therefore, though the relinquishment was executed in favour of Surja Bai, the mother in respect of entire area of property solely by Preetamlal, it would not create any right in favour of Surja Bai exclusively of the undivided share of Preetamlal and which envelopes the other share of Ramsanehi.

24. The question which would fall for consideration is as to whether the entire relinquishment of share can be said to be nonest as Preetamlal executed relinquishment deed over and above his part of share. In order to find out the answer to the question, the principles laid down in Murugan Vs. Kesava Gounder (dead) through Legal Representatives (2019) 20 SCC 633 [LQ/SC/2019/355 ;] is followed wherein the Supreme Court has quoted excerpts of Salmonds on Jurisprudence, 12th Edn., at Para 15 which reads thus:

“15. Salmonds on Jurisprudence, 12th Edn., has noticed the distinction between valid, void and voidable in the following passage :

“…… A valid agreement is one which is fully operative in accordance with the intent of parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A voidable agreement stands midway between these two cases. It is not a nullity, but its operation is conditional and not absolute.”

25. In Murugan case (supra) at para 24 the Supreme Court reiterated the observations made in Gorakh Nath Dubey v. Hari Narain Singh (1973) 2 SCC 535 [LQ/SC/1973/226] and held that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. Therefore, the alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. Para 24 is relevant here and quoted below :

“24. We have noticed above that sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian at the instance of the minor or any person claiming under him. A document which is voidable has to be actually set aside before taking its legal effect. This Court in Gorakh Nath Dube v. Hari Narain Singh (1973) 2 SCC 535, [LQ/SC/1973/226] while making distinction between void and voidable document held : (SCC p. 538, para 5”

“5. … We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can case to have a legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the sub-matter of consolidation proceedings. …...” (Emphasis supplied)

26. By virtue of execution of relinquishment deed by Preetamlal in favour of his mother Surja Bai, Surja Bai would not become absolute owner in its entirety as Preetamlal could not have executed relinquishment deed over and above his share as on the date of relinquishment, his elder son Ramsanehi had born from first wife Sita Devi. Though the revenue records filed as Ex.P-10 would show that the name of Surja Bai stands recorded in revenue records, but it would not confer her with absolute right of ownership in respect of the property situated at Juna Bilaspur in view of the decision of the Supreme Court in Municipal Corporation, Gwalior v. Puran Singh AIR 2014 S.C. 2669 wherein the Court held that Khasra entries do not convey title of the suit property as the same is only relevant for the purposes of paying land revenue and it has nothing to do with the ownership.

27. The evidence advanced would further show that Surja Bai subsequently executed a partition deed on 22/09/1982, Ex.P-4, and kept a share of 0.77 Acres herself and gave a share of 0.64 Acres to Preetamlal and Ganga Bai, the second widow of Bhagwandeen. The plaint averments shows that by 1982, other grandson namely Bharat Lal Loniya had born and so as per plaint on calculating the same the date of birth would be of approximately 1977 and for Pawan Lal Loniya, approximate date of birth would be of 1980. They are the grandsons of Bhagwandeen. Therefore, in respect of property at Juna Bilaspur, the said property before partition would be an ancestral property in their land of subsequent child born i.e., the grand-son who came into being. In a result, by depriving the grandsons, division of property by Surja Bai, Preetamlal and Ganga Bai would not confer them with absolute right over and above their share in the property of Juna Bilaspur. So by partition the respective share-holder would not get specified share in the property of Juna Bilaspur.

28. Admittedly, the WILL was executed as proved as Ex.P-9 on 27/04/1987 whereby Surja Bai and Ganga Bai both bequeathed their shares in the property bearing Khasara No. 614, 501/1, 501/1, 601/1 (admeasuring 0.72) & Khasara No. 614 (area 0.04 decimal) along with superstructure & Khasra No. 500/3 & 501/4, (total area 0.64) which was recorded in revenue records were bequeathed in favour of Ramsanehi (D-2), Bharatlal (D-3) and Paramlal (D-4), their grandsons.

The effect of WILL would be that according to the wish of the testator the joint share held by both Surja Bai and Ganga Bai conferred on the beneficiaries, the grandsons. Since, Ganga Bai died on 22/12/1988 and Surja Bai died on 21/12/1990, their extent of share in property at Juna Bilaspur would devolve on their grandsons to the exclusion of others as per case of Murugan (Supra). With the death of Surja Bai and Ganga Bai, their entire undivided interests to the extent of their entitlement would be devolved on their grandsons, the beneficiaries. By such devolution of right in the property of Juna Bilaspur Ramsanehi (D-2), Bharatlal (D-3) and Pawan Loniya (D-3) would become the owners according to the last wishes of the testator in respect of share of Ganga Bai and Surja Bai.

29. Another question comes to fore is what would be the entitlement of plaintiff with respect to claim of personal share of property of Preetamlal in Juna Bilaspur. The properties are comprised as the ancestral property and secondly the self-acquired property at Village Ranigaon and Sirgitti. In order to find out the answer the status of plaintiff would be relevant, with respect to the family. With respect to the properties at Juna Bilaspur, Preetamlal had already executed a relinquishment deed (Ex.P-2) on 04/04/1977, thereby he divested himself out of his holding i.e. personal share in respect of his part of share in property in its entirety. So the question that arises for consideration is whether the plaintiff can claim the right over the Juna Bilaspur as co-parcener and as a son in personal self-acquired properties at Ranigaon and Sirgitti.

30. The statement of P.W.1 would show that Preetamlal was married to Sita Devi and during his life time without there being a separation or divorce as per the Hindu Marriage Act in the year 1970 Preetamlal married Kanti Devi. According to Section 5 of The Hindu Marriage Act, the marriage may be solemnized between two Hindus on fulfillment of condition that neither party has a spouse living at the time of marriage. For the sake of convenience, the relevant portion of section 5(i) of HMA 1955 is reproduced below:

“5. Conditions for a Hindu marriage. - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :-

(i) neither party has a spouse living at the time of marriage;”

31. From the first marriage of Preetamlal with Sita Devi, 3 sons and 5 daughters were born namely Ramsanehi (D-2), Bharatlal (D-3) and Pawanlal (D-4) and 5 daughters namely Saraswati (D-6), Shashi(D-7), Triveni Devi (D-9), Savitri Devi (D-10) and Smt. Madhu (D-11) since deceased now represented by legal heirs. Likewise, from “second marriage” of Preetamlal with Kanti Devi, plaintiff-Shankar and four daughters Santoshi Devi (D-12), Saroj Devi (D-13), Pratima Devi (D-14) and Priti (D-15) were born. Since the plaintiff Shankar has died during pendency of the suit, his legal heirs wife Sudha Singh, son Sasram Singh and daughter Niyati were arrayed as Plaintiffs. In respect of second marriage of Preetamlal with Kanti Devi, which took place in 1970, it cannot be held to be a valid marriage though children were born out of such marriage i.e. the plaintiffs gets legitimacy. When the children are born out of such void or voidable marriages, the status of legitimacy is conferred by Section 16 of the Hindu Marriage Act, 1955. For the sake of brevity, the entire section 16 is reproduced herein below :

“16. Legitimacy of children of void and voidable marriages-(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or subsection 2 shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”

32. Though section 16 has conferred the legitimacy to the children, what would be their right to the larger coparcenery has recently been laid down by the the larger Bench of Supreme Court in case of Revanasiddappa Versus Mallikarjun 2023 SCC OnLine SC 1087. While laying down the law, the Court held that section 10 of the Hindu Succession Act, 1956 which provides for distribution of property among heirs in Class I of the Schedule. Section 10 of the HSA 1956 provides for the divisions of “the property of an intestate” among heirs in Class I of the Schedule. The expression “property of an intestate” means property that belongs to the intestate. The explanation to subsection (3) of Section 6 provides for the ascertainment of the interest of a Hindu Mitakshara coparcener which is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death. The Court further lays down that share ascertained in terms of the Explanation to Subsection (3) of Section 6 would devolve on the basis of the principles enunciated in Section 8 and has to be distributed among the Class-I heirs in terms of Section 10. Para 54 of the judgment is reproduced herein below:

“54. Section 10 of the HSA 1956 provides for the division of “the property of an intestate” among the heirs in Class I of the Schedule. The expression “property of an intestate” means property that belongs to the intestate. The Explanation to sub-section (3) of Section 6 provides for the ascertainment of the interest of a Hindu Mitakshara Coparcener which is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death. That share as ascertained in terms of the Explanation to subsection (3) of Section 6 would devolve on the basis of the principles enunciated in Section 8 and has to be distributed among the Class-I heirs in terms of Section 10. Class-I of the Schedule is in the following terms :

“Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son; [son of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a pre deceased daughter; daughter of a predeceased son of a predeceased daughter; daughter of a predeceased daughter of a predeceased son].”

33. At para 55, the Court further held that for the purpose of distribution of property of deceased, Class I used the expression ‘son and daughter’. Para 55 reads as under:

“55. For the purpose of the distribution of the property of the deceased, Class-I uses the expression ‘son’ and ‘daughter’. The property which falls for distribution is the share of the deceased in the coparcenary property on the basis of a notional partition having taken place immediately prior to the death. The property to be distributed is that of the deceased. The explanation to sub-section (3) of Section 6 postulates that a notional partition has taken place immediately prior to the death of the coparcener and his interest is deemed to be the share that would have been allotted to him in such a partition. The legislature, in other words, has provided for the ascertainment of the share of the deceased on a notional basis. The expression ‘share in the property that would have been allotted to him if partition of the property had taken place’ indicates that this share represents the property of deceased. Where the deceased dies intestate, the property would devolve in terms of Section 8 and the distribution would be governed by the Rules specified in Section 10.”

34. As has been laid down by the Supreme Court in case of Revanasiddappa (supra), the Hindu Law recognises a branch of the family as a subordinate corporate entity, within the fold of the larger coparcenary comprising many such branches. However, even such branches can acquire, hold and dispose of family property subject to certain limitations. When Sections 16(1) & Section 16(2) of the HMA confer legitimacy on children from void or voidable marriages, subsection (3) has circumscribed the extent of the right to or in property that would be enjoyed by a person who has statutorily been conferred with legitimacy under sub-sections (1) & (2). The Supreme Court while interpreting section 16 in the above case (supra), at para 16 held as under:

“16. Section 16 was held to be intra vires. The Court held that Section 16 enacts a legal fiction : by a rule of ‘fictio juris’ the legislature has provided that children, though “illegitimate”, shall nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable. Interpreting the legal fiction in Section 16, the Court in Kanapravan Kalliani Amma (Smt) v K Devi (1996) 4 SCC 76 [LQ/SC/1996/887] observed that “illegitimate children, for all practical purposes, including succession to the property of their parents have to be treated as legitimate”. However, “they cannot….. succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents:

“82. In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.”

35. The Supreme Court in Revanasiddapa’s case (supra) had further dealt with the right of children born out of void marriage qua the coparcenary right. Paras 59, 60, 64 & 71 would be relevant and are quoted hereinbelow:-

59) We must clarify that it is true that the Hindu Law recognises a branch of the family as a subordinate corporate entity, within the fold of the larger coparcenary comprising many such branches. However, even such branches can acquire, hold and dispose of family property subject to certain limitations. The nature of property held by such a branch, until partitioned among the members of the branch does not cease to be that of a joint family property of all the coparceners of the branch. Now, since the child conferred with legitimacy under Section 16 is not a coparcener, the branch comprises the father and his children born out of the valid marriage. As such, the property, once partitioned from the larger coparcenary, and in the hands of the father, for his own branch, is not the father’s separate property, until the partition happens within the branch. It continues to be the coparcenary property in which the children from his valid marriage have joint ownership. Thus, in view of the restriction in Section 16(3), in this propertynot being the exclusive property of the fathera child covered by Section 16(1) and 16(2) is not entitled.

60) The above legal position is supported by a conjoint reading of Section 6, HSA and Section 16, HMA as well. It is important to notice that while Section 16(1) and Section 16(2) of the HMA confer legitimacy on children from void or voidable marriages, subsection (3) has circumscribed the extent of the right to or in property that would be enjoyed by a person who has statutorily been conferred with legitimacy under sub-sections (1) and (2). Such an individual is not to possess any rights in or to the property of any person other than the parents. Hence, in working out the share of such an individual who is entitled to the benefit of the statutory conferment of legitimacy by the two sub sections of Section 16, it is important to ascertain what exactly is the property of the parent which comes up for devolution by intestate succession under Section 6(3) of the HSA 1956. Where the parent is a Hindu Mitakshara coparcener, the Explanation mandates that his share in the property has to be ascertained on the basis of a notional partition having taken place immediately before his death. The share of the Hindu male coparcener which is ascertained on the basis of a notional partition immediately before his death would be distributed among his heirs in terms of Section 10 of the HSA 1956. The individual upon whom legitimacy has been conferred by Section 16(1) or Section 16(2) of the HMA 1955 would be entitled to a share in the property that would have been allotted to their parent assuming a notional partition immediately before the death of the parent. Such a construction would be in accordance with Section 6(3) and would harmonise it with the provisions of Section 16(3) of the HMA 1955.

64) The interplay between the provisions of Section 16(3) of the HMA 1955 and Section 6 of the HSA 1956 has been elaborately discussed in an illuminating judgment of a Division Bench of the Bombay High Court in Shantaram Tukaram Patil v. Dagubai Tukaram Patil. Justice R A Jahagirdar speaking for the Division Bench observed:

“21……..We have already held above that the legitimacy conferred by section 16 of the Hindu Marriage Act was there even prior to the 1976 amendment. Only it was extended to some more persons.The Hindu Succession Act is no doubt an Act which is later to the Hindu Marriage Act. One must proceed on the assumption that the Parliament was aware of the provisions contained in section 16 of the Hindu Marriage Act, an earlier law and despite this it-did not exclude the children who were made legitimate under section 16 of the Hindu Marriage Act from the class of legitimate heirs under the Hindu Succession Act. In fact one would assume that if the Parliament wanted to exclude the “legitimate children” of section 16 of the Hindu Marriage Act from the provisions of the Hindu Succession Act, it would have definitely provided for that effect. The legitimacy, therefore, created by section 16 of the Hindu Marriage Act must be read into as a part of the definition in section 3(1)(j) of the Hindu Succession Act. It would be unreasonable to suppose that section 3(1)(j) would nullify the effect of a provision contained in an earlier Act when either by express words or by necessary implication it does not do so.”

71. The amendments have built upon the structure of the HUF and calibrated it to facilitate the legislative intent of bringing about gender equality within the fold of the institution. But the legislature has not stipulated that a child whose legitimacy is protected by sub-section (1) or sub section (2) of Section 16 of the HMA 1955, would become a coparcener by birth. On the other hand, the express language used in sub-section (3) of Section 16 of the HMA 1955 is that the conferment of legitimacy shall not be construed as conferring any rights in or to the property of any person other than the parents. As we have already noted earlier, the very concept of a coparcener postulates the acquisition of an interest by birth. If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child. Holding that the consequence of legitimacy under subsections (1) or (2) of Section 16 is to place such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of subsection (3) of Section 16 of the HMA 1955 which recognises rights to or in the property only of the parents. In fact, the use of language in the negative by Section 16(3) places the position beyond the pale of doubt. We would therefore have to hold that when an individual falls within the protective ambit of sub-section (1) or subsection (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person.

36. Following the principles cited above, there is no hesitation to hold that though plaintiff was born out of void marriage of Kanti Devi and the legitimacy of the children is protected by sub-section (2) of Section 16 of the Hindu Marriage Act, 1955, it cannot not be construed that any right is accrued to them to claim the property of any person other than the parents. Therefore, in respect of the co-parcenery property, the plaintiff Shankar (since deceased) along with his sisters born from Kanti Devi would not stand on equal footing of the other coparceners. Consequently, the properties of Juna Bilaspur having not been acquired by Preetamlal as a self-acquired property and having relinquished his part of share, the plaintiff Shanker along with sisters would not be entitled to claim for partition and separate possession in respect of those properties.

37. With respect to property of Sirigitti and village Ranigaon Tahsil Ratanpur as discussed above, the plaintiff Shankar (since deceased) who was born out of second invalid marriage of Preetamlal with Kanti Devi as also the daughters namely Santoshi Devi (D-12), Saroj Devi (D-13), Pratima Devi (D-14) and Priti (D-15) who were born from such second marriage would be conferred with the status of children as per section 16 of the HMA, 1955 and they would be entitled to claim partition in respect of parental property of Preetam Lal of Sirgitti and Ranigaon. Therefore, the decree passed by the learned Additional Judge quantifying 1/13th share of partition of each of the parties to litigation which takes into sweep the property of Juna Bilaspur, property of Ranigaon, Tahsil Ratanpur and property of Sirigitti cannot be sustained and is liable to be set aside. Accordingly the finding to the extent that the plaintiff and other shareholders are entitled for the partition of 1/13th in the properties of Juna Bilaspur as also Sirgitti and Ranigaon is liable to be interfered and accordingly, the finding to this extent is set aside meaning thereby the decree for partition and separate possession in respect of properties at Juna Bilaspur to the extent of 1/13 right of parties cannot be sustained.

38. An application has been filed under Order 41 Rule 27 of the CPC before this Court wherein the copy of Will dated 15.11.2013 is enclosed to show that the properties of Juna Bilaspur bearing Kh.No.500/2 admeasuring 0.04 & Kh.No.501/3 area 0.17 = 21 decimals and properties of Mouja Sirgitti bearing Kh. Kh. No.811/1Dha, 811/16, 812/1Ga, 813/1Ga/2, 813/1ga total land 0.03 acres and properties of village Ranigaon Kh.No.1757 area 0.87 decimals and the plot of Transport Nagar admeasuring 450 sqft which were recorded in the name of Preetamlal have been bequeathed by Preetamlal in favour of first wife defendants Sita Devi (since deceased) and sons Ramsanehi, Bharatlal and Pawan Loniya. In the aforesaid application filed under Order 41 Rule 27 before this Court, a prayer has been made by the appellants to adduce additional evidence in respect of the Will. The Supreme Court in Mahavir Singh v. Naresh Chandra AIR 2001 SC 134 [LQ/SC/2000/1621] observed that Order 41, Rule 27 CPC envisages certain circumstances when additional evidence can be adduced. They are : (i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or (ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; or (iii) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The Court further held that the expression “to enable it to pronounce judgment: contemplates a situation when the appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands.

39. With respect to the property of Juna Bilaspur, it is no more res-integra that legitimacy of children born out of void or voidable marriage would not get any right except to that of parent. So leaving those properties of Juna Bilaspur and following the law laid down by the Supreme Court in Natha Singh Vs. The Financial Commissioner, Taxation AIR 1976 S.C. 1053 the true test to be applied in dealing with other properties i.e., of village Ranigaon and Sirgitti, is whether the appellate court is able to pronounce judgment on facts and materials before it, without taking into consideration the additional evidence sought to be adduced.

40. At this juncture when we examine the application under Order 41 Rule 27 wherein it is stated that the suit property includes an old house which is in possession of the appellants and 17 members were residing in the said house which is about 80 years old and it is in dilapidated condition and supporting part of it had become dangerous for living and maintenance was being carried out to avoid the loss of life or injury. However, because of objection raised by the respondents, the appellants could not continue the repair works and for want of maintenance, one wall of the house was collapsed on 20.04.2023 in mid-night due to heavy rain fall and the collapse of wall gave way into the store room of deceased Preetam Lal Loniya and while removing the debris, the appellants discovered an old storage box containing several personal items of deceased Preetamlal including old documents, Will, railway related ledger/ register , his clothes, pen etc. , for which the Photographs have been attached. It is stated that the Will dated 15.11.2013 came to fore which stresses upon subject matter of the present suit and is a notarized document which was executed by Preetamlal whereby the entire property was transferred in favour of his wife Sita Devi and her sons Ram Sanehi, Bharatlal and Pawan Loniya. The copy of the Will is also placed as Annexure D-2 for perusal. It is stated that subsequently they informed this event to the police station, Tarbahar vide letter dated 21.04.2023 vide Ex.D-3. Therefore, they may be allowed to take the documents especially the Will as additional evidence otherwise it would affect the substantial right of the parties. It was further stated that the Will dated 15.11.2013 could not be produced as evidence before the trial Court due to lack of knowledge of the appellants and they do not have access to it.

41. In reply to the aforesaid application, the plaintiffs have stated that the Will was never executed and the appellants have prepared the forged document and in order to defeat the interest of plaintiffs which exists in their favour by way of decree and the decree subsists after proper appreciation of evidence.

42. After going through the contents of Will, it appears that if it is accepted and found correct, it would have substantial effect to adjudicate the right of parties. The Supreme Court in Jagdish Prasad Patel (dead) through LRs Vs. Shivanath (2019) 6 SCC 82 [LQ/SC/2019/668] while discussing the provisions of Order 41 Rule 27 CPC laid down certain proposition that when the evidence was not available to the party despite existence of additional evidence and when the Court deems proper that the additional evidence would be necessary to remove the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Paras 29 and 30 are relevant and produced herein below:

“29. Under Order 41 Rule 27 CPC, production of additional evidence whether oral or documentary, is permitted only under three circumstances which are :

(i) Where the trial Court had refused to admit the evidence though it ought to have been admitted ;

(ii) the evidence was not available to the party despite exercise of due diligence; and

(iii) the appellate Court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents.

30. In Union of India v. Ibrahim Uddin (2012) 8 SCC 383, this Court held as under : (SCC pp. 167-168 & 170 Paras 36-37, 40 & 47)

36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy AIR 1963 SC 1526 [LQ/SC/1963/38] , Municipal Corpn., Greater Bombay v. Lala Pancham AIR 1965 SC 1008 [LQ/SC/1964/254] , Soonda Ram v. Rameshwarlal (1975) 3 SCC 698 [LQ/SC/1974/408] and Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601 [LQ/SC/1978/361] .).

37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali & Co. (1978) 2 SCC 493 [LQ/SC/1978/122] . * * *

40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realize the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.”

43. A perusal of the application and the documents annexed thereto would shows that the photographs have been attached along with a report made to the Police station to show that the house of their father in which the appellants were residing was very old and the mud wall of store room was collapsed and while cleaning the debris, they found the box of their father in which the old documents, Will, ledger books written by him, his clothes, pen etc., were found. Further perusal of the Will would show that the suit property which includes the properties of Juna Bilaspur and Sirgitti; and village Ranigaon SubTahsil Ratanpur have been bequeathed in favour of the sons and wife of Preetamlal.

44. The Will is of dated 15th November 2013. Prima facie reading of the Will would show that it has direct and important bearing on the main issue to pronounce the judgment on merits. If the authenticity of the Will is adjudicated it will have effect on the rights of the parties in respect of the properties for which parties are litigating. The Will is required to be proved under the provisions of The Hindu Succession Act and The Indian Evidence Act. Therefore, the evidence would be required to prove the Will in accordance with law, as the Will cannot be accepted to be an authenticate one on mere production. Accordingly, the application under Order 41 Rule 27 is allowed.

45. Since the finding of the trial Court is set aside with respect to 1/13th share of property in its entirety, we hold that the plaintiff is not entitled to claim partition in respect of the properties at Juna Bilaspur being co-parcener. Before any finding is given in respect of properties at Ranigaon and Sirgitti as the application under Order 41 Rule 27 has intervened whereby the personal properties of Preetam at Sirgitti and Ranigoan have been conferred by way of bequest in favour of first widow of Preetamlal namely Sita Devi ( since deceased) and their sons Ramsanehi (D-2), Bharatlal (D-3) and Pawan Loniya (D-4), which would have a material bearing on the rights of the parties, we deem it proper to send back the records of Court by which decree is passed to take evidence on Will and then send it to this Court back to record a finding in respect of Will and its effect.

46. In view of the foregoing discussion, the appeal is partly allowed and records are send back to the trial Court to record its finding on Will produced before this Court.

(i) The plaintiffs would not be held entitled to claim partition and possession of the properties purchased by Bhagwandeen bearing Kh. Nos. 500, 501/1, 601, 614 situated at Juna Bilaspur.

47. Accordingly, with the aforesaid findings and direction, the case is remitted back to the learned trial Court for adjudication on the validity of Will and send its finding on Will after giving the parties due opportunity to amend the pleadings and adduce evidence touching the Will and remit back the finding.

48. The Registry is directed to remit back the records to the trial Court in terms of the observation made above. The parties shall appear before the trial Court on 09.11.2023.