JUDGMENT V.K. Agarwal, J. 1. This appeal is directed against the judgment and decree dated 16-2-1989 in Civil Appeal No. 21-A/89 by Fifth Additional District Judge, Bilaspur, whereby the plaintiff/respondent has been declared to be the owner of 1/3rd share of the suit lands, which are situate at Village Adbhar and Dhimani of Tahsli Sakti, District Bilaspur and directing that he is entitled to partition and possession thereof. 2. The relevant facts necessary for disposal of this appeal are that out of the suit lands bearing Khasra Nos. 31, 33, 68 and 112 total area 7.12 acres situate at Village Adbhar, while land bearing Khasra No. 367 area 3.47 acres is situate at Village Dhimani. 3. Undisputably the suit lands as above were the property of Budga. The said Budga had two sons namely Malik Ram and appellant No. 6 Bisahu Ram. Plaintiff/respondent Deo Prasad is son of Bisahu Ram and is thus the grandson of Budga. Appellants No. 1 to 6 are the L.R.S of Malik Ram, the other son of Budga. Budga died on 19-8-1975. 4. The case of the plaintiff/respondent was that the suit property was the self acquired property of Budga. It was also averred that Budga during his life time executed a gift deed (Ex. P-1) dated 22-6-1971 in plaintiffs favour and thereby gifted the land of Dhimani to him. On 25-3-1975 he executed a will (Ex. P-2) in favour of plaintiff/respondent, bequeathing the land, situate at Village Adbhar. The plaintiff/respondent therefore claimed title to the suit lands by virtue of above documents i-e. gift-deed (Ex. P-1) and will (Ex. P-2) of Budga. 5. The defendants resisted the suit. According to them the property was not the self acquired property of Budga, but was his ancestral property. Budga could not dispose of the suit property by gift and could not have bequeathed it. It was averred that the gift deed (EX. P-1) and the will (Ex. P-2) are void abinitio, and would not affect the rights of the defendants in the suit land. 6. The learned trial Court partly allowed the claim of plaintiff/respondent and held that the suit property was the ancestral property of Budga. It was averred that the gift deed (EX. P-1) and the will (Ex. P-2) are void abinitio, and would not affect the rights of the defendants in the suit land. 6. The learned trial Court partly allowed the claim of plaintiff/respondent and held that the suit property was the ancestral property of Budga. It was further held that there was partition of suit lands between Budga and his two sons Bisahu Ram and Malik Ram; in which land at Dhimani area 3.47 acres fell in the share of Budga, while lands at Adbhar feel in the share of his sons. It was therefore held that the suit land bearing Khasar No. 367 area 3.47 acres situate at village Dhimani could be validly gifted in favour of plaintiff/respondent. The claim of the plaintiff/respondent regarding the said land was therefore upheld and he was declared to be entitled to possession thereof. However, claim of plaintiff/respondent, regarding suit lands situate at Village Adbhar, which was allegedly bequeathed by Budga toy his will (Ex. P-2) was disallowed. 7. Appeal was preferred in the lower appellate Court by the appellants/defendants. The respondent/plaintiff filed a cross-objection. The learned lower appellate Court affirmed the finding of the trial Court that the suit property was ancestral property in the hands of Budga. It was further held that actual partition of suit lands did not take place between Budga and his two sons. The lower appellate Court held that the gift deed and will have been proved to have been duly executed by Budga. It was further held that Budga was entitled to one third share of the suit property at the time of his death and therefore he could dispose of his property to the extent of his 1/3rd share therein. Accordingly, the plaintiff/respondent was declared to be entitled to the suit property to the extent of 1/3rd share of Budga. It was further directed that the appellants/defendants were entitled to get the suit property partitioned and obtain possession of their share as above. 8. This appeal has been admitted on the following substantial question of law: Whether execution of Gift Deed and will by late Bishahooram in favour of respondent Deo Prasad his son, is valid when the property was found ancestral and joint, in view of para 258 of Hindu Law of Mulla ? 9. 8. This appeal has been admitted on the following substantial question of law: Whether execution of Gift Deed and will by late Bishahooram in favour of respondent Deo Prasad his son, is valid when the property was found ancestral and joint, in view of para 258 of Hindu Law of Mulla ? 9. In this appeal the finding of the trial Court that the suit property was ancestral property of Budga has not been challenged. Infact, the finding as above of the trial Court has also not been specifically set aside by the learned lower appellate Court. Moreover, the plaintiff/respondent though pleaded that the property was self acquired property of Budga, but he has failed to adduce any evidence to substantiate his case in this regard. Therefore, the finding of the trial Court that the suit property was ancestral property and formed Joint Hindu Family property of Budga and his sons-defendants Malik Ram and Bisahu Ram, appears to be wholly justified. 10. It may be noticed here that the learned trial Court held that there was partition between Budga and his two sons and that land situate at Village Dhimani fell in the share of Budga. Accordingly, he was entitled to gift the said land of Dhimani in favour of plaintiff/respondent. However, the above finding of the trial Court appears to be totally misconceived. It may be noticed in the above connection, that it was not the case of either of the parties, that there was partition of suit lands, between Budga and his two sons. In the absence of any pleadings whatsoever, in that regard, a new case of partition could not have been invented by the trial Court. 11. It further appears that the lower appellate Court also fell in error in holding that at the time of his death Budga was having 1/3rd share in the suit property, and on that premises in declaring the appellants/defendants to be entitled to such assumed 1/3rd share of Budga in the suit lands. It may be reiterated here that since there was no partition between Budga and his sons, the premises as above, on which the lower appellate Court, proceeded was obviously fallacious. 12. Therefore, the question that deserves consideration is as to whether Budga could dispose of the property by gift deed (Ex. P-1) dated 22-6-1971 or will (Ex. P-2) dated 25-3-1975, executed by him. 13. 12. Therefore, the question that deserves consideration is as to whether Budga could dispose of the property by gift deed (Ex. P-1) dated 22-6-1971 or will (Ex. P-2) dated 25-3-1975, executed by him. 13. In Thamma Venkata Subbama (dead) by L.R. v. Thamma Rattamma and others, AIR 1937 SC 1775. It has been observed: A gift by a coparcener of his undivided interest in the coparcenary property is void. The reason as to why a Coparcener is not entitled to alienate his undivided interest in the coparcenary property by way of gift is that an individual member of the joint Hindu family has no definite share in the coparcenary property. By an alienation of his undivided interest in the corparcenary property, a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. It has been held therein that according to the personal law of the Hindus, governed by Mitakshara School of Hindu Law, a coparcener can dispose of his undivided interest in the coparcenary property by a Will, but he cannot make a gift of such interest. It was further observed that, a coparcer can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other copaarceners and such a gift would be quite legal and valid. 14. It is not the case of plaintiff that the gift in his favour was made by Budga with the consent of other coparceners. Hence Budga could not gift his property. Accordingly, the gift deed (Ex. P-1) executed by Budga would not confer any title on plaintiff. The finding of the trial Court in that regard was not justified. 15. So far as the Will (Ex. P-2) is concerned the learned trial Court held that Budga was not competent to execute the will of his own undivided share of the coparcenary property. P-1) executed by Budga would not confer any title on plaintiff. The finding of the trial Court in that regard was not justified. 15. So far as the Will (Ex. P-2) is concerned the learned trial Court held that Budga was not competent to execute the will of his own undivided share of the coparcenary property. However, the learned lower appellate Court differing from the above finding was of the view that Budga could duly execute the Will and was competent to dispose of property thereby. Legally there appears to be no bar in executing will regarding his share in the coparcenary property. However, the question in the above context, in the instant case is, whether the Will (Ex. P- 2), allegedly executed by Budga, has been duly proved as per requirement of law? 16. The only witness examined to prove the Will (Ex. P-2) is Panchram (P.W. 3), who claims to be the attesting witness thereof. However, he states that Budga signed on that document in his presence. But it is not so. Infact, the Will (Ex. P-2) contains the thumb impression of Budga and not his signature. Moreover, Panchram (P.W. 3) does not state that he put his signatures in presence of Budga. Panchram (P.W. 3) also does not speak as to who was the other witness or whether he put his signature on the Will when it was executed. Therefore, the Will (Ex. P-2) has not been proved to be duly executed, by Budga, as per requirement of law. 17. Moreover, the defendants have led evidence to show that Budga was not in proper mental and physical condition prior to his death, when the Will was allegedly executed by him. Therefore, the authenticity of the Will (Ex. P-2) is highly doubtful. 18. In view of above, the plaintiff/respondent cannot acquire any interest in the suit property by virtue of Will (Ex. P-2) also. The finding in that regard, of learned lower appellate Court appears to be perverse and deserves to be set aside. 19. In view of the above, the plaintiff/respondent and appellants/defendants do not get any right, title or interest in the suit lands on the basis of either the gift deed (Ex. P-1) or will (Ex. P-2) allegedly executed by Budga. However, they are the grand sons of Budga, being the L.R.s of Malik Ram and Bisahu Ram respectively. 19. In view of the above, the plaintiff/respondent and appellants/defendants do not get any right, title or interest in the suit lands on the basis of either the gift deed (Ex. P-1) or will (Ex. P-2) allegedly executed by Budga. However, they are the grand sons of Budga, being the L.R.s of Malik Ram and Bisahu Ram respectively. Therefore they have equal share in the property. 20. Accordingly, it is declared that the plaintiff/respondent has 1/2 share in the suit property while the appellants/defendants have 1/2 share in the suit property. The impugned judgment and decree stands modified as above. Parties shall bear their own costs throughout in the circumstances of the case. Counsel's fee Rs. 500/-, if certified. Appeal allowed