Sumangala T. Pai v. Sundaresa Pai — 1990 DIGILAW 380 (KER)

Judgment :- Bhat,J. Plaintiff in a suit for partition is the appellant herein. 2. First defendant is the husband, plaintiff and fifth defendant are the daughters and defendants 2 to 4 are the sons of Indira Bai who died on 13-11-1981. First defendant died when the suit was pending in the trial court. Plaintiff filed the suit for partition of the moveable and immoveable properties belonging to Indira Bai and separation of her 1/6th share therein on the ground that Indira Bai died intestate. The suit was resisted by registered notice Ext.A8 demanding share. In the reply notice defendants set up a contention that Indira Bai had executed Ext.Bl unregistered Will dated 26-8-1981. According to the plaint, Will is not true and genuine and has been forged and fabricated with the sole object of defeating the claims of the plaintiff. After the death of the first defendant plaint was amended to state that plaintiff is entitled to fractional share in the share of the first defendant. Defendants 1 and 5 filed joint written statement. Defendants 2 to 4 also filed joint written statement. All the defendants set up Ext.Bl Will in answer to the plaintiffs claim. The trial court upheld Ext.Bl Will and dismissed the suit but without costs. 3. Schedule A to the plaint describes five items of immovable properties belonging to Indira Bai. Item(1) is 46 cents of land situated in Ernakulam Village which must obviously be a very valuable piece of land. Item (2) is a plot of land measuring 20 cents containing two houses and situated in Ernakulam Village, which also is a valuable piece of land. Item (3) is 6 cents of land in Cheranelloor, a few kilometers away from Ernakulam. Items (4) and (5) are two plots of dry land measuring 1.95 acres and 3 acres respectively situated in Puthencruz Panchayat; not far away from Ernakulam. Schedule B to the plaint gives a list of movables allegedly belonging to Indira Bai whose total value is given as Rs.6,66,925/-. According to written statements, item (3) of plaint B schedule is imaginary and the correct value of other items is only Rs.2,30,000/-. 4. If Indira Bai died intestate plaintiff is admittedly entitled to 1/6th share; so also each of the other heirs would be entitled to 1/6th share. According to written statements, item (3) of plaint B schedule is imaginary and the correct value of other items is only Rs.2,30,000/-. 4. If Indira Bai died intestate plaintiff is admittedly entitled to 1/6th share; so also each of the other heirs would be entitled to 1/6th share. Under the terms of Ext.Bl Will, ten cents of land in item (2) with two houses is bequeathed to the plaintiff and the other ten cents of land is bequeathed to the fourth defendant and the other items are bequeathed to the third defendant. The Will contains no bequest in favour of defendants 1, 4 and 5. The Will bequeaths all the movables to three sons in equal share. 5. There is no dispute that Indira Bai, her husband and her sons were living together. The father and the sons are engaged in jewellery business in Ernakulam Town. Evidently it has been a successful business. Plaintiff is married to a lawyer examined as P.W.2. Fifth defendant was married to a person working under the first defendant. It is in evidence that fifth defendant and her husband on account of misunderstanding with the first defendant started living separately. He was sick for a long time and ultimately died. Thereafter fifth defendant came to live with her father under his protection. She continues to live with her brothers. 6. Second defendant has been examined as DW-1. He has to get ten cents of land and one-third share in the movables under Ext.Bl. DW-2 is one of the attestors. He is a lawyer of this family. They speak in support of the Will. Plaintiff examined as P W-1 and her husband examined as PW-2 speak against the genuineness of the Will. 7. The evidence of DW-1 in chief-examination can be summarised as follows: Ext.Bl was executed after consulting DW-2. DW-2 was present when it was finalised. DW-1 was present when it was written on 26-8-1981. DW-1 saw Indira Bai signing in the presence of first defendant and DW-2 who were the attestors and the testator saw attestors also signing. He purported to identify the signatures in Ext.Bl as those of Indira Bai. After the death of Indira Bai parties took possession of the respective bequests. When plaintiff and fifth defendant came to their house for the obsequies, first defendant gave them copies of Ext.Bl. He purported to identify the signatures in Ext.Bl as those of Indira Bai. After the death of Indira Bai parties took possession of the respective bequests. When plaintiff and fifth defendant came to their house for the obsequies, first defendant gave them copies of Ext.Bl. Plaintiff bore enmity towards first defendant and did not attend his obsequies. 8. DW-1 gave the following material answers in cross-examination. First defendant had discussions with PW-2 about the Will one and a half months previously. DW-1 had discussions with DW-2 about the Will in the house of DW-2. First defendant consulted Indira Bai and prepared the Will. The draft was with the first defendant. DW-1 does not know where it is now. He does not know why Indira Bai executed the Will. It was DW-1 who got Ext.Bl written by the scribe on 26-8-1981. He took the draft with him to the scribe and the scribe had written the original. Neither the draft nor the original had been shown to DW-2 who was sent for only on the date of Ext.Bl. While first defendant's Will was attested by a family doctor and was registered, Ext.Bl was not so attested and was not registered though it was written by the same scribe. Scribe was not present when Ext.Bl was executed. There was no suggestion by anyone that Ext.Bl should be registered. On the other hand PW-2 said that it need not be registered. They did not consult DW-2 regarding registration. Indira Bai used to say that plaintiff had a grievance that the property given to her was not adequate. Indira Bai had gifted to plaintiff two houses in Ernakulam. 9. The substance of DW-2's evidence can be summarised as follows: He has a standing of twenty years at the bar. He was attending to the family litigation. He is the second attestor to Ext.Bl. He saw Indira Bai signing the document in the presence of himself and the first defendant and Indira Bai had seen the attestors signing. 10. DW-2 in cross-examination stated as follows: He did not know if his grandfather and the first defendant belong to the same family. First defendant did not ask for his legal advice even before Ext.Bl. First defendant had told him that some arrangements must be made. PW-2 and second defendant came to him to talk about preparing the Will one week after first defendant talked to him. First defendant did not ask for his legal advice even before Ext.Bl. First defendant had told him that some arrangements must be made. PW-2 and second defendant came to him to talk about preparing the Will one week after first defendant talked to him. PW-2 and second defendant showed him the draft and asked him if it was alright. DW-2 suggested that it was better to get more details written through the document writer. DW-2 has been looking after the family litigation since 1970. First defendant showed him the draft and that was approved by DW-2. There was no ill-feeling between first defendant and PW-2. His advice was not sought for the registration. He did not advise that PW-2 must attest the Will. He had attested the first defendant's registered Will also. It was registered at the insistence of the first defendant. 11. PW-1 deposed that first defendant had affection only for his sons and allergy to his daughters, she and her mother used to visit each other, her mother visited her one week prior to her death and never told her about the Will. No copy of the Will was given to her when she went to attend the mother's obsequies. After the death of her mother her brothers used to press her for executing a release deed. There were differences of opinion between her mother and first defendant. According to her, signatures found in Ext.Bl are not those of Indira Bai. She also indicated that the counsel representing defendants 1 and 5 was the junior counsel of DW-2. She denied having obtained possession often cents of land bequeathed to her. According to her this plot of land is in an interior area and contains two old houses. She admitted in cross-examination that her husband had kept one and a half kilograms of gold belonging to her in the house of the first defendant and the Central Excise Officers had seized it and ultimately it was released to her. She got only five to ten sovereigns of gold ornaments at the time of her marriage. The documents executed in her favour by the mother have been given by her to the Syndicate Bank. 12. PW-2, husband of the plaintiff, denied the truth of the evidence of DWs.1 and 2 that he was consulted in the matter of Will, Ext.Bl or that he had approved it. The documents executed in her favour by the mother have been given by her to the Syndicate Bank. 12. PW-2, husband of the plaintiff, denied the truth of the evidence of DWs.1 and 2 that he was consulted in the matter of Will, Ext.Bl or that he had approved it. In cross-examination he stated that he used to conduct some cases for the family when DW-2 was ill. In 1979 or so D W-1 had asked him to draft a Will and he did not remember if he had drafted any Will. Two days later when Indira Bai came to his house he informed) her of whatDW-1 told him and she said that there was no need for her to execute a Will. 13. It was argued before the trial court that Ext.Bl is an unnatural Will which no affectionate mother would have executed, that the purported signatures of Indira Bai seen in Ext.Bl differ materially from her signatures seen in Ext.A1 to A4, that D.Ws.1 and 2 are interested witnesses, interested in depriving the plaintiff of her legitimate dues and their evidence cannot be believed, that the explanation offered for non-registration of the Will cannot be accepted, that plain tiff had not been given sufficient property by Indira Bai and that Ext.Bl has not been acted upon. The trial court rejected all these arguments and found that DW-2 is a respectable witness whose evidence can be believed. The trial court also found that in wealth-tax proceedings Will had been acted upon. 14. We are unable to agree with the conclusion of the trial court that there is nothing unnatural in the terms of Ext.Bl Will. If Indira Bai died intestate, her husband, two daughters and three sons would have derived 1/6th share in her assets. She left very valuable properties, movables and immoveable. Immoveable properties consist of about 66 cents in Ernakulam village and nearly five acres of land not far away from Ernakulam village. Out of these properties ten cents of land with two houses is the bequest made in favour of the plaintiff and ten cents of land in Ernakulam village is the bequest made in favour of second defendant, and the remaining items of land are given to third defendant. Nothing is given to other heirs including the widowed daughter and other sons. The argument that plaintiff has been given sufficient property does not impress us. Nothing is given to other heirs including the widowed daughter and other sons. The argument that plaintiff has been given sufficient property does not impress us. The evidence is that plaintiff was given five to ten sovereigns of gold ornaments at the time of her marriage as also two houses in Ernakulam subsequently. But the houses were given by her mother of her own accord. There is no evidence at all to show that Indira Bai had given any property to her other daughter, who was perhaps more deserving and the two sons defendants 2 and 4. It is also not explained why she wanted to bequeath the bulk of her immoveable properties to third defendant to the exclusion of her daughters and other sons. It is not as if the mother had no affection towards the daughters or other sons. The evidence ofPW-1 is that the mother and plaintiff were visiting each other frequently. The trial court was in error in holding that there was nothing unnatural in the terms of Ext.Bl Will. The Will appears to us to be most unnatural. It is the duty of the propounders to explain this suspicious feature and in our opinion they have failed to do so. The lower court was in error in holding otherwise. 15. The Will is seen attested by Indira Bai's husband first defendant and their family lawyer D W-2. Undoubtedly there is formal evidence of execution of the Will, that is, Indira Bai signing the Will in the presence of the attestors and the attestors signing the Will in the presence of Indira Bai. Even if we accept this formal evidence the question is whether Indira Bai was a willing party to the Will and the terms thereof and she wanted to execute the Will and whether she had subscribed to the terms of the Will. There is evidence to show that a draft of the Will had been prepared. But there is no evidence to show as to who prepared the draft of the Will. Draft of the Will is not forthcoming. There is also no evidence to show that draft was prepared with the concurrence of Indira Bai and that contents of the draft were made known to her and that she had agreed to the same. But there is no evidence to show as to who prepared the draft of the Will. Draft of the Will is not forthcoming. There is also no evidence to show that draft was prepared with the concurrence of Indira Bai and that contents of the draft were made known to her and that she had agreed to the same. The only evidence is that the draft was with the first defendant and that was taken to the office of the scribe by DW-1. The original was written by the scribe in his office and that was taken to the house of Indira Bai. There is no evidence that original was read over to Indira Bai or that the terms and conditions of the Will were made known to Indira Bai or that she had agreed to the same. DW-1 in his chief-examination did not give any evidence to indicate that Indira Bai wanted a Will to be executed or was aware of the terms of the Will or wanted her properties to be disposed of in the manner recited in Ext.Bl. In cross-examination he stated that the first defendant had consulted Indira Bai and prepared the Will. This would suggest that the Will was got prepared by first defendant, who according to the plaintiff, was allergic to his daughters. It is clear that all was not well between the males in the house of the defendants. 16. There is evidence that plaintiff had a bus, evidently purchased under a hire purchase agreement in regard to which third defendant was the surety. When the bus was kept under repair, third defendant filed a suit for injunction restraining the plaintiff from removing the bus from that place. The suit was filed through DW-2. No injunction order was passed. It is in evidence that immediately thereafter DW-2 on behalf of third defendant filed another suit for the same relief without disclosing the filing of the first suit and once again failed to obtain injunction. Third defendant through DW-2 filed yet another suit. It is argued that DW-2 is a lawyer dealing with family litigation and therefore he must be interested in all the members of the family. But then on behalf of the third defendant he filed successive suits against the present plaintiff. The circumstances revealed that the daughters were not in the good books of the father. It is argued that DW-2 is a lawyer dealing with family litigation and therefore he must be interested in all the members of the family. But then on behalf of the third defendant he filed successive suits against the present plaintiff. The circumstances revealed that the daughters were not in the good books of the father. It was the father who allegedly consulted Indira Bai. There is no evidence that either the draft or the original of the Will was read over to Indira Bai. All that DW-2 would say was Indira Bai and attestors signed Ext.Bl. In the case of an unnatural Will like Ext.Bl one would expect better evidence on the side of the propounders to show that the testator had really subscribed to the terms of the Will. Such evidence is wholly lacking in this case. 17. Ext.A1 to A4 are said to be documents containing signatures of Indira Bai. Ext.A1 dated 23-6-1975 consists of copies of two plans of houses approved by the Town Planning Officer. Ext.A2 dated 27-11-1975 is yet another plan containing signature of Indira Bai. Ext.A3 is a plan for septic tank containing her signature. Ext.A4 is a copy of the option statement filed by the first defendant and Indira Bai before the Taluk Land Board on 6-7-1984. It is the evidence of PW-1 that these documents contain signature of Indira Bai. It was suggested to her in cross-examination that somebody else might have put the signature of Indira Bai in these documents and her answer was that she could not say. We have carefully scrutinised the signatures of Indira Bai in Ext.A1 to A4 and in Ext.B1. We find marked dissimilarity between the signature in Ext.B Ion the one hand and the signatures in Exts. A1 to A4 on the other. We are inclined to agree that the evidence is not sufficient to show that the signatures contained in Ext.A1 to A4 are really those of Indira Bai. Learned counsel for the respondent would argue that Indira Bai had executed gift deeds in favour of the plaintiff and the original gift deeds would contain signatures of Indira Bai and plaintiff failed to produce those documents. PW-1 has explained that those documents had been handed over to Syndicate Bank, The burden of proof is on the propounders of the Will and not on the plaintiff. PW-1 has explained that those documents had been handed over to Syndicate Bank, The burden of proof is on the propounders of the Will and not on the plaintiff. Undoubtedly there must be documents in the custody of the defendants containing signatures of Indira Bai. As Ext.A4 would show there must be documents containing her signature filed before the Taluk Land Board. Defendants could very well have taken steps to get those documents before the trial court. They did not do so. In other words, they gave no opportunity to the court to compare the signature in the disputed Will with the admitted signature of Indira Bai. They made no attempt to have the disputed signatures compared by an expert with the admitted signatures. Learned counsel for the respondents would place reliance on the decision of a learned single judge of this court in Saraswathy v. Bhavathy Ammal & another (1988 (2) KLT736). In that decision it is pointed out that the execution in the case of Will means and includes not only the testator affixing his signature or mark to the Will or some other person signing it in the presence of and under direction of the testator, but the whole series of acts of formalities like attestation etc. stipulated under S.63 of the Succession Act and a Will has to be proved by examining the attesting witnesses and where they cannot be found, by examining a witness who can identify the signature of the testator. The court pointed out that S.45 of the Evidence Act provides that when the court has to form an opinion on various matters including identity of handwriting, opinion of a specially skilled person on identity of handwriting is a relevant fact. The court took the view that in regard to execution of the Will, the court has to form a judgment from the evidence the propounders may let in following the procedure prescribed under Ss.68,69 and 71 of the Evidence Act and the court has no need to form an opinion on the question as to identity of the signature of the testator in a Will and expert opinion is not a relevant fact. It was argued before the learned single judge that the opinion of an expert may be relevant at least to test the veracity of the testimony of the testator but the argument did not find favour with the learned Judge. We find that the Supreme Court had occasion to consider this aspect in H. Venkitachala lyengar v. Thimmajamma (AIR 1959 S.C. 443). 18. In Venkatachala lyengar's case (AIR 1959 S.C. 443) the court referred to Ss.67,68,45 and 47 of the Evidence Act as also Ss.59 and 63 of the Succession Act and observed in the following manner: "Under S.67. if a document is allowed to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. S.68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law S.63 (Succession Act requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the provisions is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Will. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Will. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act." (emphasis supplied) The court further observed: "in dealing with the proof of Wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder." (emphasis supplied) Thus it can be seen that proof of the signature of the testator in a will is a vital matter which requires to be proved. It is true that the evidence insisted by law is that of the attestors. But that is not to say that other kinds of evidence is shut out by law. If there is anything suspicious in the signature, evidence of an attestor who attests the signature can certainly be corroborated or contradicted by expert opinion. Therefore we are unable to agree with the view taken in Saraswathy's case (1988(2) KLT 736) that evidence of an expert on signature or handwriting in a Will is not relevant. It is sufficient to say that in the present case defendants made no attempt to provide materials either for the court to compare the disputed signatures with admitted signatures or to secure opinion of an expert. 19. D.Ws.1 and 2 are no doubt interested witnesses. D.W.1, second defendant, is one of the propounders of the Will. It is sufficient to say that in the present case defendants made no attempt to provide materials either for the court to compare the disputed signatures with admitted signatures or to secure opinion of an expert. 19. D.Ws.1 and 2 are no doubt interested witnesses. D.W.1, second defendant, is one of the propounders of the Will. D. W.2 is the family lawyer of the first defendant. It is true as pointed out that P.W.2 was handling some cases of the family in the absence of D. W.2. D. W.2 filed successive suits against the plaintiff on behalf of the third defendant. We agree that the mere fact that they are interested witnesses is not sufficient to discredit their testimony. However we do not think the quality of their evidence is such as to satisfy the court that Ext.Bl was executed consciously and willingly by Indira Bai, particularly in the context of the unnaturalness in the bequests made in Ext.Bl. 20. The trial court took the view that Ext.Bl has been acted upon. This finding is based on Exts. B2 to B8. Exts.B2 and B3 are communications to defendants 2 to 4 by the Wealth Tax Officer. Those documents are really innocuous. Ext.BS is wealth tax assessment order passed against third defendant. This makes no reference to Ext.Bl Will. Ext.BS(a) is a copy of the statement submitted by third defendant under the Wealth-tax Act in relation to assessment year 1982-83. Under the head "moveable property" the statement refers to "moveable assets passed by the Will of late Sri. Indira Bai". Ext.B6(a) is a similar statement given by fourth defendant. Ext.B6 is wealth-tax assessment order passed against fourth defendant for the year 1982-83. This makes no reference to the Will. Ext.B? is the estate duty assessment order in relation to the estate of Indira Bai. The accountable person is shown as first defendant who is not a legatee under the Will. The fact that first defendant is shown as accountable person may militate against the Will. Ext.B?(a) is a statement submitted by the first defendant regarding the estate of his wife. This makes no reference to the Will. Ext.B?(b) is a communication by the Chartered Accountant engaged by the first defendant to the Assistant Controller of Estate Duty. This is an innocuous document. Ext.B7(c) is a notice of demand under the Estate Duty Act. Ext.B?(a) is a statement submitted by the first defendant regarding the estate of his wife. This makes no reference to the Will. Ext.B?(b) is a communication by the Chartered Accountant engaged by the first defendant to the Assistant Controller of Estate Duty. This is an innocuous document. Ext.B7(c) is a notice of demand under the Estate Duty Act. Ext.BS is a statement submitted by the second defendant under the Wealth-tax Act and is similar to Exts.B5(a) and B6(a). *Thus we see that while first defendant is shown as accountable person in relation to the estate of the deceased, the wealth-tax statements submitted by the three sons refer to a Will left by Indira Bai. These statements do not mention the date of the Will. Further, having set up a Will it is only to be expected that they will try to make use of the Will. Hence we are not able to agree with the trial court that the Will has taken effect after the death of Indira Bah 21. Ext.A18 is a letter sent by the plaintiff to the first defendant on 7-12-1982 complaining bitterly about the activities of her brothers, in particular third defendant in relation to the bus. By this letter plaintiff also demanded her share in the properties allotted by her mother. Ext.A19 is the reply sent by the first defendant. Adverting to plaintiffs demand for her share first defendant stated as follows: "Regarding your mother's estate share or any share, nobody has got any right to claim the same, so far as I am alive. Whatever your mother owned was completely through my earning resources and whatever gifts to her children or any other institutions given are completely with my knowledge and permission and nobody has any right to question the same. At the time of your marriage I have given you due share as ornaments, cash and 20 cents of land in S.R.M. Road. Actually I need not have given you anything after that. But believing that you, a daughter of mine, I gave 10 more cents even without anybody's instigation. While your mother was alive, you were accustomed to invite her in your house to squeeze money. And it is correct, you say, that her end was worried due to your pestering. Actually I need not have given you anything after that. But believing that you, a daughter of mine, I gave 10 more cents even without anybody's instigation. While your mother was alive, you were accustomed to invite her in your house to squeeze money. And it is correct, you say, that her end was worried due to your pestering. You are always craving for money and nothing else." It is significant to note that the father did not tell the daughter that the mother Indira Bai had left a Will. This also is a circumstance which has to be taken along with other infirmities surrounding the Will. 22. For the reasons aforesaid, we set aside the finding of the trial court upholding Ext.Bl as the last Will and testament of Indira Bai and hold that Ext.Bl is not proved to be the last Will and testament of Indira Bai. That being so, plaintiff is entitled to 1/6th share in the assets of Indira Bai. 23. On the death intestate of the first defendant, his 1/6th share would be inherited by his personal heirs including plaintiff. It is stated that first defendant left a registered Will. The original Will was not produced in the trial court. Ext.B9 is only a Photostat copy of the Will. The trial curt has given a finding that since the original has not been produced and proved, it must be held that the first defendant died intestate. After the death of the first defendant, plaint was amended claiming 1/5th share ins lead of 1/6th share. Defendants 2 to 4 filed an additional written statement setting up the registered Will allegedly executed by first defendant bequeathing his properties to the second defendant. The trial court did not frame a specific issue on the genuineness of this Will. In these circumstances the finding on issue No.6 that plaintiff is entitled to 1/5th share cannot stand and we set aside the same. An opportunity has to be given to the defendants to produce the registered Will and prove it in accordance with law. 24. Written statement of defendants 2 to 4 does not admit that all the items shown in plaint A and B schedules form part of the estate of Indira Bai. An opportunity has to be given to the defendants to produce the registered Will and prove it in accordance with law. 24. Written statement of defendants 2 to 4 does not admit that all the items shown in plaint A and B schedules form part of the estate of Indira Bai. They admit that among the items included in plaint A schedule only items (2) and (3), 40 cents in item (1) and 84 cents in item{4) belonged to Indira Bai. They also contend that item (3) of plaint A schedule is imaginary and dispute the correct value of other items included in plaint B schedule. In the light of these pleadings, the trial court should have framed a specific issue regarding the properties available for partition. The trial court did not frame an issue and did not record a finding. This controversy has to be decided. So also issue No.4 has to be decided. 25. In the result, we set aside the decree and judgment and remand the suit to the trial court for fresh disposal in accordance with law and in the light of the findings and observations contained in this judgment. As an heir of Indira Bai plaintiff is entitled to 1/6th share in the estate of Indira Bai. The trial court will decide whether plaintiff has inherited any share in the share of the first defendant in the estate of Indira Bai. The trial court will also decide the controversies regarding first defendant's Will and portable assets of Indira Bai and pass a preliminary decree after giving an opportunity to both sides to adduce further evidence. The appeal is thus allowed, but in the circumstances without costs. 26. Learned counsel for the respondents prayed for certificate under Article 133(1), read with 134(A) of the Constitution of India. We are not satisfied that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court, Prayer is declined.