S.M. DAUD, J.:---These appeals arise out of a suit for partition and separate possession and an application seeking a probate in respect of the Will of Chandrabhagabai. 2. The following genealogy will explain the relationship between the parties : Mahadu (died in 1962) | Wife Chandrabhagabai | (died on 27th December, 1976) | ------------------------------------------------ | | | | | | Namdeo (died on 24-3-1969) Jijabai | | | | | | Two wives | | | ----------------------- | | Indu Yamuna Properties A and B were ancestral in the hands of Mahadu, the other shares of that property being his brother Kisan. Kisan and Mahadu were separate. Property C is a self acquisition of Mahadu. After the passing away of Namdeo, Chandrabhagabai filed a suit against her daughters-in-law alleging that they were enjoying the suit properties to her to exclusion and that she had a 1/3rd share in properties A and B and a 2/3rd share in property C. She wanted her share to be separated and she placed in possession of the separated share. The daughters in-law Indu and Yamuna, denied that Chandrabhagabai had the share she was ascribing to herself. She was not entitled to any share inasmuch as her right to claim such a partition stood extinguished with the passing away of Namdeo. Jijabai who is joined as respondent No. 3 claimed a 1/9th share in properties A and B and a 1/3rd share in property C. Certain issues were raised and the trial Court passed a decree reading as follows : "1-A) It is hereby declared that in the properties mentioned in para 1-A and 1-B, the plaintiff has got 1/3rd share. 1-B) It is also hereby declared that the properties mentioned in para 1-C of the plaint, the plaintiff has got 2/3rd share. 1-C) It is ordered and decreed that the defendants Nos. 1, 2 and 3 shall put the plaintiff in possession of her shares declared above, by metes and bounds, and the plaintiff may execute the decree, as necessary 1-D) In the circumstances of the case, there shall be no order as to costs. Final decree accordingly (on payment of additional Court fee stamps if and as necessary)." The decree aggrieved Chandrabhagabai as also Indu and Yamuna. Chandrabhagabai filed First Appeal No. 117 of 1974 while Indu and Yamuna filed First Appeal No. 189 of 1974. Final decree accordingly (on payment of additional Court fee stamps if and as necessary)." The decree aggrieved Chandrabhagabai as also Indu and Yamuna. Chandrabhagabai filed First Appeal No. 117 of 1974 while Indu and Yamuna filed First Appeal No. 189 of 1974. During the pendency of the two appeals Chandrabhagabai died. Jijabai's husband Yeshwant @ Damu moved the probate Court claiming that Chandrabhagabai had left a Will bequeathing her entire property to Jijabai and that he had been appointed as the sole executor of the said bequest. This claim was contested by Indu and Yamuna. Jijabai who was impleaded to the probate proceedings admitted her husband's petition. Kisan the brother of Mahadu who was joined as defendant to the suit did not come forward to contest the same. The probate Court sustained the claim made by Yeshwant and that order is assailed in First Appeal No. 254 of 1984 by Indu and Yamuna. 3. Having heard Counsel in all the three appeals the following points arise for determination : 1. What share devolved upon Chandrabhagabai after the demise of Namdeo? 2. Whether Chandrabhagabai bequeathed her estate to Jijabai making her son-in-law Yeshwant a sole executor? 3. What interest do Jijabai, on the one hand and Indu and Yamuna get on the other in the properties A/B and C? 4. What order? My findings, for reasons given below, are: 1. 5½/9 share. 2. Yes. 3. Jija gets 7/9 and Indu and Yamuna together take 2/9th share in both properties. 4. See order. 4. It is contended by Mr. Page representing Indu and Yamuna in First Appeal No. 189 of 1974 that Chandrabhagabai had a right to seek partition and separate possession until the life-time of Namdeo. This right she did not exercise and during the life-time of Mahadu and Namdeo no partition had taken place. The effect of Namdeo's death was that her right to seek a partition stood extinguished. This right she did not exercise and during the life-time of Mahadu and Namdeo no partition had taken place. The effect of Namdeo's death was that her right to seek a partition stood extinguished. In support of this submission reliance is placed upon the first part of section 6 of the Hindu Succession Act, 1956 which reads as follows : "When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in Mitakshara coparcenar property, his interest in the property shall devolve by survivorship upon the coparcenar and not in accordance with this Act." The argument is that the coparcenary did not come to an end by the death of Mahadu. Its existence continued for Namdeo was alive and the property came to vest in him as the sole surviving coparcenary. But the proviso to sections 6 indicates differently. It says--- "If the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship." It is not disputed that Mahadu had left behind him two female relatives specified in class I of the Schedule. These were a widow and a daughter viz. Chandrabhagabai and Jijabai. That being the position, the first part of section 6 will not apply for the proviso is in the nature of exception to that part. Reliance is placed upon the following passage from Mulla's Hindu Law, Fifteenth Edition at page 928. The passage dealing with Explanation 1 to section 6 is thus worded :- "This explanation defines the expression "the interest of the deceased in the Mitakshara coparcenary property" and incorporat into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relative mentioned in Class 1 of the Schedule. Subject to such carving out of the interest of the deceased coparcenar the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption." Mr. Subject to such carving out of the interest of the deceased coparcenar the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption." Mr. Page on the basis of this passage submits that the coparcenary this time consisting only of Namdeo continued as before. Upon his death his widow took the property in its entirety for the mother had lost her right to claim a partition as a widow of Mahadu. Her right and that of Jijabai extending to no more than 1/9th each in the interest of Mahadu. It is not possible to accept this submission for it seeks to ignore the proviso altogether. The proviso and the Explanation to section 6 have a meaning. In the passage relied upon by Mr. Page the further words are to the effect that a statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existing and effect must be given to the inevitable corollaries of that state of affairs. Next at page 929 of the afore mentioned book there is an excerpt from the Supreme Court judgment in (Gurupad v. Hirabai)1, A.I.R. 1978 S.C. 1239 which is to the following effect :- "What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once from the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. That assumption, once made, is irrevocable. In other words, the assumption having been made once from the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must premeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages......All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated for one another and had received a share in the partition which had taken place during the lifetime of the deceased." Thus understood the position emerging at the time of death of Mahadu was that he in common with Namdeo and Chandrabhagabai had a 1/3rd share each in properties A and B. Upon his death there was a notional partition as effective as a real one which left Chandrabhagabai and Namdeo with their 1/3rd share coming to them on partition with Mahadu's 1/3rd going in equal proportions to the son, widow and daughter. At that time therefore Chandrabhagabai and Namdeo had a 4/9th share each and Jijabai a 1/9th share vis-a-vis properties A and B which were ancestral in the hands of Mahadu. As to Mahadu's self acquired property, upon his death the property went in equal shares to the son, widow and daughter. 5. The next stage is at the time of Namdeo's demise. Namdeo died leaving behind him two class of heirs both of whom fell in class 1 of the schedule. On one side were his widows and on the other side was his mother. Each took in equal degree i.e. they got 50% each in the 4/9th share that had come to him in properties A and B and his 1/3rd share in property C. At this stage the position was that Chandrabhagabai had a 4/9th share of her own and received a further accretion of 2/9th as an heir of Namdeo. The two widows together took 2/9ths while Jijabai continued with 1/9th only as she was not an heir of Namdeo. The two widows together took 2/9ths while Jijabai continued with 1/9th only as she was not an heir of Namdeo. Namdeo's 1/3rd interest in property C went in equal halves to his widows on the one hand and the mother on the other. The third stage and which is the really effective stage for the purpose of putting an end to the litigation, is, that after the death of Chandrabhagabai. 6. Yeshwant has set up a Will whereunder Chandrabhagabai is said to have bequeathed her entire estate to her daughter Jijabai. Indu and Yamuna deny any such a bequest has taken place and alternatively, plead that it was the result of Yeshwant and/or Jijabai taking advantage of the grief-stricken and unknowing Chandrabhagabai to obtain her thumb mark on the document said to be that lady's will. The burden of proof in respect of Wills is well-settled. Shortly stated, the propounder of the Will has to prove not only that it was, duly executed and attested as is required by the law, but also that it is genuine. If there are any suspicious features surrounding the Will the burden lies on the propounder to remove the suspicion. Yeshwant has examined himself, the attestants and a medical practitioner to show that the Will was duly executed by Chandrabhagabai. The Will is of the year 1969, whereas the evidence in relation thereto was given in the year 1979. The witnesses were testifying to events nearly 10 years after the same had taken place. All said and done the witnesses barring Dr. Kotbagi are not of unusual intelligence. The first circumstances in favour of the genuineness of the Will is its very naturalness. After the passing away of her son who moreover had died issueless, the only living relation in the world for Chandrabhagabai was her daughter Jijabai. Namdeo's widows apart from being barren had not been well disposed towards her. She had been compelled to file a suit for partition and separate possession against them. Chandrabhagabai was well stricken in years and knew that death was inevitable. The litigation that had to be or been set in motion was nowhere near the end. In fact, it had not even begun. In the circumstances nothing could be more natural than Chandrabhagabai wanting to make a bequest of her property to her daughter. Chandrabhagabai was well stricken in years and knew that death was inevitable. The litigation that had to be or been set in motion was nowhere near the end. In fact, it had not even begun. In the circumstances nothing could be more natural than Chandrabhagabai wanting to make a bequest of her property to her daughter. If nothing else the hatred against the daughters-in-law was so overpowering as to make her doing the best that she could do to deprive them of whatever benefit the law had unfortunately been conferred upon them. Mr. Apte argues that there is no consistency between the evidence of the attestants, the propounder and Dr. Kotbagi. As said earlier, one must not give undue importance to verbal inconsistencies where the naturalness of the transaction is over-powering. One of the witnesses viz. Shimpi has gone to the extent of saying that the testatrix did not affix her thumb mark to the Will in his presence. In fact, he had not gone to the place where the Will was executed viz. the dispensary of Dr. Kotbagi. The document was brought to his house and some woman claimed that it bore her thumb mark. This is sufficient to warrant an attestant to attest the document. Indu and Yamuna have led evidence to show that Chandrabhagabai had been so overcome by grief after the passing away of Namdeo that she became a recluse who shut herself up in a room and did not stir out of the place for almost a year. This story is incredible for we have the admission of Indu herself that Chandrabhagabai was staying in a room adjacent to a private temple dedicated to Shankar belonging to the family which temple was quite some distance away from the farm house of the family. Next is the testimony of Dr. Sayyed who also say that though Chandrabhagabai was much grieved at the passing away of her son, it was not as if Chandrabhagabai had lost her mind. A sound disposing mind requires no more than that the testator understand what is happening. To quote from (Banks v. Goodfellow)2, L.R. 5. Next is the testimony of Dr. Sayyed who also say that though Chandrabhagabai was much grieved at the passing away of her son, it was not as if Chandrabhagabai had lost her mind. A sound disposing mind requires no more than that the testator understand what is happening. To quote from (Banks v. Goodfellow)2, L.R. 5. Q.B. 549 Cockburn, C.J., had this to say on the subject :- "It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties that no insane delusion shall influence his Will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been done." Considered thus it is clear that the Will is genuine and was made with full understanding by Chandrabhagabai. She had the right to bequeath her property. The conclusion flowing from the foregoing discussion is that the challenge posed by Indu and Yamuna to Chandrabhagabai as also Jijabai fails. The decree passed by the trial Court suffers from some ambiguities and will therefore have to be modified which modification even otherwise is necessitated by the subsequent event of Chandrabhagabai's demise. Hence the order. O R D E R First Appeal No. 254 of 1984 dismissed. First Appeal No. 189 of 1974 dismissed. The cross-objection preferred by Jijabai in First Appeal No. 189 of 1974 is allowed. First Appeal No. 117 of 1974 is allowed. The decree passed by the trial Court is substituted by one reading thus :--- Jijabai has a 7/9th share in properties A and B and a 5/6th share in property C. Indu and Yamuna have a 2/9th share in properties A and B and a 1/6th share in property C. A preliminary decree for partition and separate possession in the above terms be drawn up. The division in respect of properties A and B has to be only in respect of 1/2 share of Mahadu in the said properties. The division in respect of properties A and B has to be only in respect of 1/2 share of Mahadu in the said properties. The division of property 1-A to be effected by the Collector or a Gazetted subordinate designated by him. Commissioner to be appointed for the partitioning by metes and bounds of properties 1-B and 1-C. Costs in both the courts as incurred Order accordingly. -----