(1.) The appellant (original defendant no. 1) and respondent no. 1 (Original plaintiff) are the real brothers. The respondent nos. 2 to 4 are minor sons of respondent no.1.
(2.) The original plaintiff filed a suit being Special Civil Suit No. 184 of 1974 in the Court of the learned Civil Judge (S. D.) at Baroda inter alia alleging that one Bai Dahi widow of Vitthal Dalpat died leaving behind her a daughter Bai Adit The plaintiff and defendant No. 1 who are two sons of Bai Adit who also died leaving behind them plaintiff and defendant. Bai Dahi succeeded as widow to the estate of her husband under the erstwhile Baroda Hindu Law as there was no male issue. She was the full fledged owner and she executed her last testamentary instrument on 2nd August 1946 (Exh. 79). According to the plaintiff by a specific recital in the testamentary instrument the testator devised only life interest and not full ownership rights on the legatee Bai Adit and on her death her two sons the plaintiff and the defendant no. 1 are constituted the owners. Bai Dahi died on 28th August 1946 Notwithstanding the devise of life interest on Bai Adit the defendant no. 1 got her to make a will dated 20th October 1966 whereunder the said testatrix devised the estimate on the defendant no. 1 on the basis that it is her stridhan properties. According to the plaintiff the said will is null and void inasmuch as the testatrix had no disposing capacity to dispose of the suit property by will as her interest was limited one and not full ownership right. Therefore the said will being inoperative in law it does not and cannot extinguish the rights of the plaintiffs in the suit property under the will dated 2nd August 1946
(3.) The defendant no. 1 resisted the suit by filing a written statement exh.56. He denied that Bai Dahi executed a will on 2nd August 1946 and according to him Bai Dahi must be deemed to have died intestate and so Bai Adit as her heir succeeded to her estate. The defendants denied that by will Bai Dahi has devised only limited interest on Bai Adit. The defendant contends that even if Bai Dahi is legally proved the construction of will that it only conferred life interest on Bai Adit is not correct and is against the manifest intent of the testratrix. According to the defendant the testratrix Bai Dahi by her will constituted Bai Adit as full proprietary owner (Malik). Any recital in the will repugnant to the full ownership of Bai Adit are void and no such restriction can be placed on her right under the will; she is made the full owner. In substance defendant no. 1 denies all allegations and contentions raised by the plaintiff against the will of Bai Adit. Original defendant nos.2 to