K. A. SWAMI, J. ( 1 ) R. F. A. No. 197/1982 is preferred against the judgment and decree dated 19-4-1982 passed by the learned xi additional city civil judge, Bangalore in o. s. No. 436/1976 (old)/o. s. No. 1176/1980 (new ). R. f. a. No. 198/1982 is preferred against the judgment and decree dated 19-4-1982 passed by the very same judge in o. s. No. 1266/1976 (old)/o. s. No. 2673/1980 (new ). ( 2 ) O. S. No. 1266/1980 (old)/o. s. No. 2673/1980 (new) was first filed in thecourt of the munsiff, Bangalore city whereas o. s. No. 436/1976 (old)/o. s. No. 1176 of 1980 (new) was filed in the court of the civil judge, Bangalore city. Both the suits will be, hereinafter, referred to with the new numbers. ( 3 ) THE suit o. s. No. 1176/1980 was filed by the appellant in r. f. a. No. 197/1982 for partition and separate possession of his share in the suit properties against the respondents who were the defendants in the said suit whereas 2673/1980 was filed by the defendants in o. s. No. 1176/1980 against the plaintiff therein for a declaration of title and possession of a portion of item No. 3 of the property described in the schedule to o. s. No. 1176/1980. As o. s. No. 2673/1980 related to one of the items of suit properties concerned in o. s. No. 1176/1980 and it depended upon the decision in o. s. No. 1176/1980, it came to be transferred to the civil judges court and clubbed with o. s. No. 1176/1980. When both the suits were pending the Bangalore city civil courts act came into force. As a result thereof both the suits came to be statutorily transferred to the city civil court and they came to be numbered as o. s. No. 1176/1980 and o. s. No. 2673/1980 respectively. ( 4 ) AS already pointed out o. s. No. 1176/1980 was a suit for partition and separate possession of the share of the plaintiff in the suit schedule properties. He is the appellant in r. f. a. No. 197/1982. He is also the appellant in r. f. a. No. 198/1982. The trial court has partly decreed the suit o. s. No. 2673/1980. The suit o. s. No. 1176/1980 has also been partly decreed. He is the appellant in r. f. a. No. 197/1982. He is also the appellant in r. f. a. No. 198/1982. The trial court has partly decreed the suit o. s. No. 2673/1980. The suit o. s. No. 1176/1980 has also been partly decreed. The learned trial judge has held that there existed a joint family consisting of the plaintiff and defendants 1 to 3 and suit item No. 1 was a joint family property. In respect of the other suit items it was held by the trial judge that they were not the joint family properties. However, curiously enough the learned trial judge has not considered the business of the joint family as claimed by the plaintiff. Accordingly the learned trial judge has decreed the suit of the plaintiff in respect of item No. 1. He has also rejected the case of the plaintiff regarding the share of the moveables. Consequently, he has dismissed the suit in respect of rest of the properties in which the plaintiff has claimed his share. Hence the plaintiff has come up in appeal against the judgment and decree passed in o. s. No. 1176/1980 in so far it has refused share to him in the other suit properties. He has also come up in appeal against the judgment and decree passed in o. s. No. 2673/1980 because the trial court has held that he has no right, title and interest in a portion of item No. 3 of the suit property and has held his possession as unlawful and decreed the suit of the plaintiffs therein who are the defendants in the partition suit and has directed enquiry into mesne profits. ( 5 ) THE case of the plaintiff was that g. h. narasimhaiah was the propositus of the family. He had three sons, plaintiff, g. n. krishnappa and g. n. hanumanthappa; that narasimhaiah died in the year 1954 and g. n. krishnappa died during the pendency of the suit. After the death of narasimhaiah, the plaintiff continued as a member of the joint family along with 1st defendant and late g. n. hanumanthappa and acquired the suit items 3 and 4 and conducted the business as joint family business; that in spite of the demand made by the plaintiff, the defendants refused to give share; hence he approached the court for partition. 5. 1. 5. 1. The defendants denied the claim of the plaintiff and contended that there was no joint family as pleaded by the plaintiff and that the plaintiff separated from his father in the year 1932 when he was young and was not earning anything and he went away to shimoga and subsequently settled in mysore; that the suit schedule properties were not the joint family properties and they were the properties purchased out of their joint earnings. The defendants also further contended that narasimhaiah was only a nominal head of the family and his name was mentioned in some of the documents by the first defendant and his brother; that the first defendant and his deceased brother were enjoying the suit properties as the full owners thereof; that after the death of his father-narasimhaiah, the defendants are residing in the premises and the plaintiff had nothing to do with them; that in the year 1961 the plaintiff who retired from service, was economically in a poor condition, came over to Bangalore and requested the first defendant and his brother to permit him to stay temporarily in the carpentry shed in item No. 3 of the suit schedule property; that the first defendant though he was not willing but at the instance of their old mother allowed the plaintiff to stay in the shed; that the plaintiff refused to vacate the premises; that in september, 1972 the plaintiff vacated the premises and went to live with his son-in-law at nagappa road, seshadripuram, Bangalore; that he came back in february, 1973; that as the first defendant did not agree an attempt to occupy the premises by force was made; that in that connection the suit bearing No. 493/1973 was filed in the court of the i munsiff, Bangalore; that in the meanwhile with the help of the local police, the plaintiff got into the same illegally; that the said suit was withdrawn and the present suit for declaration of title and for possession was filed in o. s. No. 1266/1976 which, as already referred to, came to be numbered as o. s. No. 2673/1980. ( 6 ) THE plaintiff also amended his plaint and inserted para 6 (a) stating that the existing business at menaka theatre, kempegowda road, Bangalore-9 and such other business that are being carried on by the defendants in different places belong to the joint family and the said businesses are being carried on out of joint family funds. The defendants filed additional written statement denying the additional plea raised by way of amendment and contended that the catering business at menaka theatre and such other businesses which were being carried on did not belong to the joint family and the plaintiff had not contributed anything to the business. ( 7 ) THE trial court raised the following issues for determination: "1. Do defendants prove that the plaintiff separated from his father in the year 1932 when he was young and was not earning anything? 2. Whether the suit schedule properties are the joint family properties of the plaintiff and defendants or the self acquired properties of the 1st defendant and his brother hanumanthappa? 3. Is the suit hit by Section 10, CPC in view of the decision in o. s. No. 1266/1976 on the file of the first munsiff, Bangalore? 4. Do defendants prove that the plaintiff is in unlawful possession of the property item No. 3 of the plaint schedule? 5. What order or decree?" ( 8 ) THE plaintiff examined three witnesses including himself and relied upon 21 documents which were marked as exs. P. 1 to p. 21. On the contrary, the defendants examined 5 witnesses including c. k. jagadish, son of first defendant as d. w. 1 and vishnu kumar, defendant No. 3 as d. w. 5 and produced four documents which were marked as exs. D-1 to d-4. ( 9 ) THE trial court answered issues 1 and 3 in the negative and issue No. 2 in sofar it covered item No. 1 in the affirmative and in respect of the other items in the negative. Issue No. 4 was also answered in the affirmative. Accordingly, the suit was decreed only in respect of item No. 1. ( 10 ) AS far as the connected suit o. s. No. 2673/1980 is concerned, the trial court raised the following issues: "1. Is the court-fee paid sufficient and is the valuation correct? 2. Do plaintiffs prove that they are absolute owners of the schedule property? 3. Accordingly, the suit was decreed only in respect of item No. 1. ( 10 ) AS far as the connected suit o. s. No. 2673/1980 is concerned, the trial court raised the following issues: "1. Is the court-fee paid sufficient and is the valuation correct? 2. Do plaintiffs prove that they are absolute owners of the schedule property? 3. Do plaintiffs prove that defendant is liable to surrender possession on them? 4. Do plaintiffs prove that they are entitled to damages? 5. What relief?" it answered issues 1 to 3 in the affirmative and issue No. 4 in the negative. Accordingly, the suit o. s. No. 2673 was decreed in part. The plaintiffs therein were declared to be the owners of suit schedule property which formed part of item No. 3 concerned in the connected suit and the defendant therein was directed to vacate the suit schedule property and to give vacant possession of the same to the plaintiffs. However, claim of the plaintiffs for damages was dismissed. ( 11 ) IN the light of the contentions urged on both the sides, the following points arise for consideration in both the appeals, 1. Whether the daughters of g. h. narasimhaiah (sisters of plaintiff) were necessary parties to the suit? 2. Whether g. h. narasimhaiah, plaintiff, g. n. krishnappa and g. n. hanumanthappa constituted a joint family? 3. Whether the suit properties were the joint family properties? 4. Whether the defendants have proved that late g. h. narasimhaiah executed the will ex. D-l, dated 15-6-1952? 5. Whether the judgment and decree passed in o. s. No. 2673/1980 is sustainable in law? 6. To what share, if any, the plaintiff is entitled to? ( 12 ) POINT No. 1: the facts necessary for the purpose of deciding this point are not in dispute. G. h. narasimhaiah as already pointed out had three sons by name m. n. venkateshaiah (plaintiff), g. n. krishnappa (first defendant) and g. n. hanumanthappa (died before the filing of the suit on 15-3-1976, the father of defendants 2 and 3 ). Apart from the male issues g. h. narasimhaiah had also five daughters. One of the daughters by name krishnamma predeceased narasimhaiah. On the date of the suit only three daughters were surviving. Narasimhaiah was also survived by his widow Smt. Narasamma. It is also not in dispute that narasamma died in the year 1964. Apart from the male issues g. h. narasimhaiah had also five daughters. One of the daughters by name krishnamma predeceased narasimhaiah. On the date of the suit only three daughters were surviving. Narasimhaiah was also survived by his widow Smt. Narasamma. It is also not in dispute that narasamma died in the year 1964. This fact is admitted by P. W. 2 in her evidence. ( 13 ) SRI Seshagiri rao, learned counsel for respondents-1 (a) and 1 (b) contended that the widow of narasimhaiah died in the year 1964 long after the hindu Succession Act came into force; that on the date of her death she had a right to claim share in the joint family properties in the light of the Provisions contained in Section 8 (1 ) (b) of the Mysore hindu law women's rights Act, 1933 (mysore act 10/1933) (hereinafter referred to as the 'mysore act 10/1933) if the partition were to take place between her sons and that right was enlarged because of the Provisions contained in section 14 of the hindu Succession Act. Hence on the death of narasamma, her daughters were entitled to a share in the properties which could have been allotted to her if the partition had taken place during her life time, therefore, the daughters of narasimhaiah were necessary parties to the suit. ( 14 ) FOR the purpose of appreciating this contention, it is necessary to state mat the parties come from old Mysore area and the properties are situated in the old Mysore area. The Provisions of hindu women's right to property Act, 1937 were not applicable to old Mysore area. Mysore act 10/1933 alone governed the right of a female in the joint family properties. Therefore, it is necessary to refer to Section 8 of the Mysore act 10/1933 which reads thus: "8. (a) at a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to share with them. (b) at a partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them. (b) at a partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them. (c) sub-sections (a) and (b) shall also apply mutatis mutandis to a partition among other coparceners in a joint family. , (d) where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the right to shares of the classes of females enumerated in the above sub-sections. " 14. 1. The scope and ambit of Section 8 of the Mysore act 10/1933 has been considered by the Supreme Court in nagendra prasad and another v kempananjamma, AIR 1968 SC 209 . At para 7 of the judgment it has been held thus: "this example makes it clear that the scope of ascertainment of the females who are to receive a share under clause (d) must be very wide, because clause (d) mentions that when the joint family property passes to a single coparcener by survivorship, the right to shares is vested in all the classes of females enumerated in all the three clauses (a), (b) and (c ). That being the position, we do not think that clause (d) can be interpreted narrowly as giving a right to only those females who happen to be related to one or the other of the last two male coparceners in the manner laid down in clauses (a) and (b ). In fact, the language of clause (d) has to be interpreted as laying down that right to shares will vest in all females of the joint hindu family who would have possibly received the right to a share if at any earlier time there had been partition in the family in any of the three manners laid down in clauses (a), (b) and (c ). This intention can only be given effect to on the basis that clause (d) does not restrict itself to find out females on the basis of an assumed partition between the last two male coparceners. It is significant that clause (d) gives a right independently of a partition and we do not see why its scope should be restricted by assuming a partition. It is significant that clause (d) gives a right independently of a partition and we do not see why its scope should be restricted by assuming a partition. The reference to the earlier clauses in this clause must be held to be restricted to the sole purpose of ascertainment of the females falling under clauses (a), (b) and (c) and once they are ascertained, it has to be held that each one of them becomes entitled to a share under this clause. The object of clause (d) is to give to all females entitled to maintenance from the coparcenary property a right to claim a share in the joint family property instead of a right to maintenance and that is why reference is made in it to all females enumerated in clauses (a), (b) and (c ). Clauses (a) and (b) refer to four classes of females, viz. , the mother, the widow, unmarried daughter and the unmarried sister. All these four classes of females are within clause (d ). The actual share which a female becomes entitled to under clause (a), (b), (c) or (d) has to be ascertained with reference to sub-section (2) of Section 8. Further, in ascertaining the females to whom rights accrue to shares in the joint family property either on partition under clause (a), (b) or (c) or on passing of the property to a sole survivor under clause (d), effect has to be given to sub-section (3) of Section 8 in which the scope of the words "widow", "mother", and "son " is enlarged and which, in addition, lays down that the Provisions of this whole Section relating to the mother are to apply mutatis mutandis to the paternal grandmother and great grandmother. Consequently when classes of females entitled to shares under clause (d) are to be ascertained and it is to be found out whether a mother mentioned in clause (a) or clause (b) is entitled to a share, the persons included in the expression "mother" would be a "step mother" and, further, the provision conferring the right on the mother would also confer the right on paternal grandmother and great grandmother, because clauses (a) and (b), which relate to a mother are to be applicable mutatis mutandis to paternal grandmother and great grandmother also. It is clear that, on this interpretation of clause (d) read with clauses (a), (b) and (c) and sub-section (3) of Section 8, the decision given in the present case by the high court is correct and the respondent is a person entitled to a share as held by that court. As the widow of mandappa, a coparcener, she was clearly entitled to a one-fourth share. " (emphasis supplied) 14. 2. In Smt. Shankaramma and another v madappa and others, AIR 1977 kar. 188 , this court has considered the scope of Section 8 (a) (d) of the Mysore act 10/1933 with reference to Section 14 (1) of the hindu Succession Act. After referring to the earlier decisions of this court and also of the High Court of Mysore and of the Supreme Court in nagendra prasad's case this court has held thus: "in the present case, the plaintiffs are in a better position. Their possession was joint and actual. Their right to a share as observed by the Supreme Court in nagendra prasad v kempananjamma, AIR 1968 SC 209 , is independently of a partition, and not to be restricted by assuming partition. Therefore, the plaintiffs' interest in the family properties became absolute upon the coming into force of Section 14 (1) of the act and the sole surviving coparcener had no right to alienate it. The absolute property vested in a female member cannot be disposed of by the kartha of the family. " that was also a case where the property passed on into the hands of the sole surviving coparcener, therefore, it fell within the scope of clause (d) of sub-section (1) of Section 8 of Mysore act 10/1933. It was held that the right of a female was not dependent on the happening of partition, inasmuch as her right to share in the joint family property was certain and it was independent of partition. To put in short, right to share was vested in her. Therefore, it enlarged into absolute estate on the coming into force of the hindu Succession Act. The instant case does not fall under clause (d) of sub-section (1) of Section 8 of Mysore act 10/1933. On the date narasimhaiah died, i. e. , in the year 1954, the property devolved upon his three sons. Therefore, it enlarged into absolute estate on the coming into force of the hindu Succession Act. The instant case does not fall under clause (d) of sub-section (1) of Section 8 of Mysore act 10/1933. On the date narasimhaiah died, i. e. , in the year 1954, the property devolved upon his three sons. Again on the date when Smt. Narasamma died in the year 1964, all the three sons of narasimhaiah were alive. At no point of time the joint family property devolved upon the sole surviving coparcener. Therefore, at no point of time narasamma had any vested right. The right of narasamma to claim share in the joint family property was contingent upon an event of partition taking place. If the partition had taken place during the life-time of narasamma between her sons, i. e. , plaintiff, d. n. krishnappa and g. n. hanumanthappa, undoubtedly, she would have got a share as per Section 8 (1 ) (b) of Mysore act 10/1933. As no partition took place, she could not get any share. Therefore, on the date of her death, she had no interest in the joint family property which could devolve on her heirs. The right which depended upon the happening of an event of partition was not a vested right in the property. It was an imperfect right till the partition were to take place. As already pointed out, the partition did not take place during her life time. Of course, she had a right of maintenance. That right also perished along with her death. Therefore, on her death, there was no right or estate to be inherited or succeeded by, or to devolve upon, her heirs. 14. 3. However, Sri Scshadri, learned counsel for rcspondents-1 (a) and 1 (b), placed reliance on the decisions in Smt. Shankaramma and another v madappa and others, AIR 1977 kar. 188 ; M. V. Chockaungam filial and others v alamelu ammal and another, AIR 1982 Madras 29; arunkumar sanyal v jnanendra nath sanyal and another, AIR 1975 Calcutta 232; and raghunandan singli and others v rambalak singh and others, AIR 1964 Patna 206. 14. 4. It is already pointed out that shankaramma 's case was a case of sole surviving coparcener. Therefore, it cannot have any bearing on the case on hand. 14. 4. It is already pointed out that shankaramma 's case was a case of sole surviving coparcener. Therefore, it cannot have any bearing on the case on hand. In M. V. Chockalingam's case, a hindu widow inherited the share of her husband in the joint family property under Section 3 of the hindu women's right to property Act, 1937 which enlarged into an absolute right under Section 14 of the hindu Succession Act as the widow died in the year 1963. Therefore, this decision is not applicable to the case on hand. In arunkumar sanyal v jnanendra nath sanyal and another, AIR 1975 Calcutta 232, scope of Section 23 of the hindu Succession Act was considered. It is not necessary to consider this decision in detail because it has been dissented to by a division bench of this court in kariyavva and another v hanumantliappa mallurappa, 1984 (1) kar, l. j. 273. In kariyavva's case, it has been held that if the property devolves upon the sole surviving coparcener, the female heir would be entitled to claim partition because the Provisions contained in Section 23 of the hindu Succession Act would not be applicable. Therefore, it is clear that the decision in arun kumar sanyal's case is not of any assistance to the respondents. It is also not possible to agree with the view expressed in raghunandan singh and others v rambalak singh and others, AIR 1964 Patna 206 because it is directly in conflict with the view of this court in kariyavva's case. Therefore, it cannot at all be pressed into service by the respondents. In upendra nath das and another v chintamani devi and others, AIR 1963 Calcutta 22, what was considered was the right conferred under Section 3 (3) of the hindu women's right to property Act, 1937. It may be pointed out that the right conferred by Section 3 (3) of the hindu women's right to property Act, 1937 stands on a different footing inasmuch as under the said provision limited estate is conferred upon a hindu widow and that right cannot at all be compared with the inchaote or contingent right conferred under clause (b) of sub-section (1) of Section 8 of the Mysore act 10/1933. The right conferred under Section 3 (3) of the hindu women's right to property Act, 1937 was not a contingent right. The right conferred under Section 3 (3) of the hindu women's right to property Act, 1937 was not a contingent right. It devolved upon a widow on the death of her husband. There is no comparison of the right to conferred by Section 3 (3) of the hindu women's right to property Act, 1937 with the one conferred by clause (b) of sub-section (1) of Section 8 of Mysore act 10/1933. Thus we arrive at a conclusion that on the dale Smt. Narasamma died, she had no substantive right or in other words, she had no right capable of devolving upon her heirs in the joint family properties. Therefore, her heirs could not claim any interest in the joint family properties through her. As such the daughters of narasamma cannot be considered to be necessary parties to the suit for partition in question. Point No. 1 is answered accordingly in the negative. ( 15 ) POINT No. 2. The trial court has held that sri. G. H. Narasimhaiah, plaintiff,g. n. krishnappa and g. n. hanumanthappa constituted a joint family. The defendants have neither preferred an appeal nor preferred any cross-objection challenging that finding. In fact, the trial court has passed a decree for partition on the basis of the aforesaid finding in respect of item No. 1 of the suit properties. None of the defendants have come up in appeal against that decree. Therefore, we do not consider it necessary to examine this point afresh as the defendants have themselves accepted the finding. . Therefore, point No. 2 is answered in the affirmative. ( 16 ) POINT nos. 3 and 4:- the trial court has held that item No. 1 in the suit schedule properties is a joint family property. Item No. 1 is a house property bearing No. 488, situated at chikka marammagudi street, malur, kolar district. The defendants did not and do not dispute the correctness of this finding. Therefore, we are now required to consider only in respect of the other items of the suit properties. ( 17 ) WE have not been able to appreciate the reasoning of the trial court as to on what basis it has held that item No. 2 of the suit schedule properties is not a joint family property. The evidence on record pertaining to this item is the sale deed dated 22-5-1935 - ex. ( 17 ) WE have not been able to appreciate the reasoning of the trial court as to on what basis it has held that item No. 2 of the suit schedule properties is not a joint family property. The evidence on record pertaining to this item is the sale deed dated 22-5-1935 - ex. P. 5 standing in the name of Sri G. H. Narasimhaiah, the father of the plaintiff, g. n. krishnappa and g. n. hanumanthappa. The joint family left malur as long back as in the year 1929 and settled at Bangalore. The evidence also shows that the house at malur was leased to a tenant and it fetched a rent of Rs. 20/- to Rs. 35/- p. m. as stated by P. W. 1 during the course of his evidence. ( 18 ) P. W. 1 has stated in his evidence thus: "in the suit item 1 the house, one school teacher is there. He is residing as a tenant in that house. He was paying a rent of Rs. 20/- previously and at present he may be paying Rs. 35/ -. Since 32 or 33 years the said house has been rented out. " item No. 2 was purchased for a sum of Rs. 169/- eight annas on 22-5-1935 by narasimhaiah, item No. 2 is a vacant site bearing No. 52, revenue nos. 65-3 and 65-9 measuring 20' x 11' situated at bandireddypalya, ketamaranahalli, yeshwanthapura hobli. Now it forms part of the corporation of city of Bangalore known as ramachandrapuram and it bears municipal No. 21. Item No. 3 is a site with buildings measuring 35' x 70' and 70' x 70' bearing No. N-53, situated at 4th cross, narayanaswamy lyengar road, seshadripuram. The old number of the sites are 11 and 12. These properties were purchased on 6-4-1946 in the name of g. h. narasimhaiah, g. n. krishnappa and g. n. hanumanthappa as evidenced by the sale deed ex. P. 8. In respect of these properties, the defendants have tried to contend that it was the self-acquired property of g. n. krishnappa and g. n. hanumanthappa alone and the name of g. n. narasimhaiah was included nominally because he was the head of the family. ( 19 ) OF course, there is no evidence to show as to in what manner the consideration amount of Rs. ( 19 ) OF course, there is no evidence to show as to in what manner the consideration amount of Rs. 8,000/- was met by g. n. krishnappa and g. n. hanumanthappa. There is also no sufficient evidence to prove that this item of property was acquired with the aid and assistance of the joint family funds. Item No. 2, as already pointed out, was an open site and it continues to be an open site even today. There is no evidence to show that it yielded any income. The only property of the joint family which was yielding income was item No. 1. In the absence of any evidence to show that this property was acquired with the aid of the joint family funds, the only onclusion we can arrive at is that this property was acquired by g. h. narasimhaiah, g. n. krishnappa and g. n. hanumanthappa jointly. 19. 1. However, in order to claim this property exclusively, g. n. krishnappa and g. n. hanumanthappa have tried to put-forth a case that g. h. narasimhaiah executed a will dated 15-6-1952 bequeathing his share in this property in their favour. Therefore, at this stage itself we take up the point relating to the will. The will is marked as ex. D. 1. It is written on a plain paper. The defendants have examined the scribe of the will Sri H. R. Narasimha murthy as d. W. 4 and the attestor Sri Nanjundappa as d. w. 2. It is relevant to notice that there is enough evidence on record to show that narasimhaiah had a paralytic stroke four years prior to his death. He was not in a position to move about. He was dependent and he could not operate his right hand and right leg. P. w. 1, the plaintiff has stated thus: "from 1950, my father had a paralytic stroke. At the time my father had a paralytic stroke, I was at mysore. One kasturiranga iyengar was used to treat my father. Every day the boys were bringing the doctor to the house for treatment. My father was not cured. He suffered till 1954. My father was alive at the time of marriage of hanumanthappa in 1952. My father was taken in a car and was carried to the marriage hall my father had lost control over his right limbs, i. e. , right hand and right leg. My father was not cured. He suffered till 1954. My father was alive at the time of marriage of hanumanthappa in 1952. My father was taken in a car and was carried to the marriage hall my father had lost control over his right limbs, i. e. , right hand and right leg. My father died in the year 1954. I was informed about 4 days prior to his death that his condition was serious. Therefore, i came over to Bangalore. " (emphasis supplied) of course, in the cross-examination of the plaintiff it has been elicited that though narasimhaiah had a paralytic stroke he was in good mental condition till his death. It has also not been disputed that narasimhaiah had lost control over his right hand and right leg. No doubt it is admitted by P. W. 1-plaintiff that the testator was in a sound state of mind; but it is necessary to find out as to whether the will is free from all the suspicious circumstances which normally surround the will. The will was executed as long back as on 15-6-1952. The testator died in the year 1954. It has seen the light of the day only when d. w. 1 was examined. Immediately on the death of the testator, the will was not produced before the authorities who were concerned with the mutation of the properties. Under the will the testator is claimed to have bequeathed two properties, viz. , item nos. 2 and 3. It was all the more necessary for the defendants 1 and 2 to produce the will before the corporation of the city of Bangalore and have the names of the legatees mutated and that of the testator deleted on the basis of the will. This has not been done. The will has not been pleaded in the written statement. When the defendants based their exclusive title to the properties described in items 2 and 3 on the basis of the will it was all the more necessary for them to plead and produce the same along with the written statement. It was not done. There is no evidence on record and the will also does not state that the relationship between the testator and his wife narasamma was strained. On the contrary the evidence on record discloses that narasimhaiah lived with the testator till his last moment and served him. It was not done. There is no evidence on record and the will also does not state that the relationship between the testator and his wife narasamma was strained. On the contrary the evidence on record discloses that narasimhaiah lived with the testator till his last moment and served him. That being so, there was no reason whatsoever of Sri Narasimhaiah to disinherit his wife and leave her at the mercy of her children. No maintenance also has been provided in the will. Apart from this, it is also relevant to notice that defendant 1 who is the beneficiary/legatee under the will took part in getting the will executed by the testator inasmuch as he had gone to fetch the scribe and the attestor. D. w. 2 nanjundappa, attestor of the will has stated that hanumanthappa, the youngest son of narasimhaiah had come to his house and requested him to go over to his house as a will was to be executed by narasimhaiah. He has also further stated that he did not know whether narasimhaiah was suffering from paralysis at the time of his death. According to his evidence, he was regularly supplying milk to the house of narasimhaiah and to the hotels of defendants 1 and 2. He has stated that he was not aware of the fact that narasimhaiah was suffering from paralytic stroke, at the time of his death, eventhough narasimhaiah was suffering from paralysis for the last four years. The evidence of this witness cannot be relied upon as he has deposed that he was not aware of the fact that narasimhaiah was suffering from paralysis. Similarly the evidence of the scribe h. r. narasimha murthy-d. w. 4 does not inspire confidence. He has admitted that due to weak eye-sight he was not in a position to identify the signature of the executant. However, he could identify his own signature. He has further stated that hanumanthappa, the father of defendants 2 and 3 went to his house and took him to narasimhaiah. Though the has admitted that he knew the father of defendants 2 and 3 but, he has denied that he did not know that the plaintiff is the eldest son of narasimhaiah. We are not satisfied that narasimha murthy-d. w. 4 the scribe of the will has deposed the truth. The very appearance of the will also does not inspire confidence. We are not satisfied that narasimha murthy-d. w. 4 the scribe of the will has deposed the truth. The very appearance of the will also does not inspire confidence. To the bare eye it is apparent that the schedule to the will is written with a different ink. Further the name of venkataswamy occurring on page-1 of the will in the 5th line from the bottom and similarly the words "rfotftj sj^ia aotazto" appearing in the 5th line of the second page of the will are written with a different ink. For the reasons stated above, we are of the view that the propouuders of the will have not been able to remove all the suspicious circumstances surrounding the execution of the will. Therefore, we are of the view that the due execution of the will ex. P. 1 by the late narasimhaiah is not proved. The will also exhibits the conduct of the defendants. It goes to show that somehow or the other defendants have tried to deprive the plaintiff of his share in items 2 and 3. As item No. 3 property stood in the joint names of narasimhaiah, g. n. krishnappa and g. n. hanumanthappa and as it is not established that it was acquired by them with the aid of the joint family funds, it could be only treated as joint property of narasimhaiah, krishnappa and hanumanthappa. Therefore, on the death of narasimhaiah, the plaintiff was entitled to a share in the l/3rd share of narasimhaiah. Therefore, we hold that item No. 3 was the joint property of g. h. narasimhaiah, g. h. krishnappa and g. n. hanumanthappa. ( 20 ) THE next item of property to be considered is item No. 4. As far as item No. 4is concerned, it is a vacant site measuring 78 feet x 32 feet 28 1/2 bearing No. 1139, ii stage, rajajinagar, Bangalore-10. The evidence on record discloses that this property was allotted in the names of hanumanthappa and the father of defendants 2 and 3. There is no evidence adducd by the plaintiff to show that hanumanthappa and the father of defendants 2 and 3 applied for allotment of this property to the city improvement trust board, Bangalore for and on behalf of joint family and the joint family funds were utilised for payment of the amount fixed for allotment of the site. There is no evidence adducd by the plaintiff to show that hanumanthappa and the father of defendants 2 and 3 applied for allotment of this property to the city improvement trust board, Bangalore for and on behalf of joint family and the joint family funds were utilised for payment of the amount fixed for allotment of the site. The plaintiff in his evidence during cross-examination has stated thus: "item No. 4 of the suit schedule was allotted by the c. i. t. b. to defendants hanumanthappa and krishnappa. Soon after the allotment of the site, i came to know about the allotment of the site. I do not know for what amount the site was allotted to them. I do not know how much advance amount was paid by them to the c. i. t. b. i do not know in how many instalments that amount was paid by them. No amount was borrowed for the purpose of payment to the c. i. t. b. " this evidence of the plaintiff goes to show that no amount of the joint family was utilised for the purpose of acquiring item No. 4. Even the plaintiff himself has not stated in his evidence that any part of the amount paid for allotment of item No. 4 proceeded from the joint family funds. ( 21 ) THE last item of the property which has to be considered is the business. Narasimhaiah and all his sons except the plaintiff were residing together. In fact item No. 3 of the suit schedule properties which were acquired as long back as in the year 1945 under ex. P. 8, was acquired as already pointed out, in the name of three persons, viz. , narasimhaiah, hanumanthappa and krishnappa. Acquisition of this property in the name of three persons is also an indicative of the fact that all the three persons were together making a joint venture, as otherwise, it would have been acquired only in the name of narasimhaiah who was the head of the family or if the property was not to be the joint property acquired out of the joint venture, the sale deed would have been in the name of either krishnappa or hanumanthappa or in the name of both and not in the name of all the three. The plaintiff has also stated in his evidence in para 7 that his father was working as a supervisor in the construction work of sajjanrao temple and he left that job and joined the business with krishnappa and hanumanthappa. He has also further stated thus: "till the time my father was alive he was looking after all the financial affairs of the several business I have already mentioned above. Krishnappa, hanumanthappa were all residing with my father during this period. During that period I was in mysore. He has further stated thus: "krishnappa and hanumanthappa and my son raju were looking after the businesses at Bangalore at prabhath talkies and coffee house at jai hind talkies. " in para 23 of his evidence he has also stated that after the death of his father the financial affairs were attended to by krishnappa. It is also stated by him that hanumanthappa was running the canteen and his father continued to run the beedi shop with the help of a servant boy krishna brought from lakkur and the beedi shop was run by his father for 2 or 3 years from 1941; that as he could not manage the beedi shop it was sold away to one thimmaiah for about Rs. 600/ -. The plaintiff has also further deposed that he helped his brothers in getting the licence and also in getting the place in the cinema theatre for conducting the business. ( 22 ) ON the contrary, the evidence adduced by the defendants does not throw any light as to how and in what other manner they were able to start the business independently. At this stage, we may also notice the manner in which the defendants had brought into existence the will and tried to rely upon the same in the suit. That circumstance would also go to show that by some means or the other they intended to defeat the claim of the plaintiff. Thus, on taking into consideration all the facts and circumstances of the case and the evidence on record, we are of the view that the business conducted by krishnappa, hanumanthappa and narasimhaiah was the joint venture of all the three. The business was not the exclusive business of krishnappa and hanumanthappa. Thus, on taking into consideration all the facts and circumstances of the case and the evidence on record, we are of the view that the business conducted by krishnappa, hanumanthappa and narasimhaiah was the joint venture of all the three. The business was not the exclusive business of krishnappa and hanumanthappa. In the absence of any evidence to show that the business conducted was not the joint venture of krishnappa, hanumanthappa and narasimhaiah, but it was started as a joint family business with the aid of the joint family funds, it is not possible to hold that the business was a joint family business. However, evidence on record discloses that the business was started under the joint venture of krishnappa, hanumanthappa and narasimhaiah. The business in question as described in para 6 (a) of the plaint is a catering business at menaka theatre, Bangalore-9. Therefore, we are of the view that catering business at menaka theatre, Bangalore-9 has been the joint business of hanumanthappa, krishnappa and narasimhaiah and on the death of narasimhaiah it has been continued by krishnappa and hanumanthappa, and on the death of hanumanthappa and krishnappa it has been continued by their children. Accordingly, point nos. 3 and 4 are answered as follows: suit items 1 and 2 are proved to be the joint family properties. Suit item No. 3 and the business at menaka theatre, kempegowda road, Bangalore-9 are proved to be the joint properties of narasimhaiah, krishnappa and hanumanthappa. Suit item No. 4 is not proved to be the joint family property nor it is proved that narasimhaiah had any interest in the same. In fact, the said property is acquired after the death of narasimhaiah by krishnappa and hanumanthappa. Point No. 4 is answered in the negative. ( 23 ) POINT No. 5; in the light of the finding recorded on item No. 3 that it is the joint property of krishnappa, hanumanthappa and narasimhaiah, the plaintiff would be entitled to a share in it. Therefore, the finding recorded by the trial court that the plaintiff has no right, title and interest in the suit item No. 3 and therefore he has no right to remain in possession and as such he is a trespasser cannot be sustained. If that be so, the decree passed in o. s. No. 2673/1980 cannot also be sustained. Hence, point No. 5 is answered in the negative. If that be so, the decree passed in o. s. No. 2673/1980 cannot also be sustained. Hence, point No. 5 is answered in the negative. ( 24 ) BEFORE we consider point No. 6 we may also refer to one another contention of Sri Seshagiri Rao, learned counsel for respondents 1 (a) and 1 (b ). It is contended by him that as the plaintiff, while in the witness box has admitted that he has heard that there is a land belonging to the family near lalbagh near hombegowda nagar and as he has failed to include the same, the suit for partial partition is not maintainable. There is no plea raised by the defendants in their written statement that apart from the suit schedule properties there is any other property which has not been included. However, during the course of cross-examination they have tried to extract from the plaintiff as follows: "i have heard that there is a land belonging to the family near lalbagh. I do not know its details but, I have seen the land. It is near hombegowda nagar. " on the basis of this, it is contended that the suit is for partial partition. It is not possible to accept this contention. The plaintiff has stated that he does not know its details. He has only heard about it. No doubt he says that he has seen the land. If really there exists any such property belonging to the joint family, as long as it is not the case of the defendants that, that property is in the possession of the plaintiff nothing prevented the defendants to give the particulars of the property. In that event, the plaintiff would have included that property. Further, nothing also prevented the defendants to include that property. This contention, as already pointed out is not raised in the written statement nor sufficient evidence is placed on record to hold that there is another property belonging to the joint family which is not included, cannot, therefore be accepted. As long as particulars of the property are not furnished and no evidence is produced to show that there is another property which belongs to the joint family, it is not possible to hold that the suit is for partial partition. Therefore, the contention is rejected. As long as particulars of the property are not furnished and no evidence is produced to show that there is another property which belongs to the joint family, it is not possible to hold that the suit is for partial partition. Therefore, the contention is rejected. However, during the course of final decree proceedings, it is open to the defendants to produce necessary evidence to show that there exists the property referred to in para 42 of the deposition of P. W. 1 alleged to have been situated near lalbagh and near hombegowda nagar and it is a joint family property, and to have that property included in the suit and partitioned according to the shares of the parties. Point No. 6 ( 25 ) WE have already held that items 1 and 2 are the joint family properties. Joint family consisted of three sons of narasimhaiah including the plaintiff. Therefore, the plaintiff would be entitled to 1/3rd share in these two items of properties. We have also held that item No. 3 and the catering business at menaka theatre, kempegowda road, Bangalore-9 are the joint properties of g. h. narasimhaiah, g. n. krishnapa and g. n. hanumanthappa. Therefore, narasimhaiah had 1/3rd share in these properties on the date of his death. This 1/3rd share of narasimhaiah on his death has to be divided into three shares among the three sons because on the date of the suit the widow of narasimhaiah was no more. Thus the plaintiff's share in these two items of properties would be 1/9th. ( 26 ) AS item No. 4 is not held to be the joint family property, the plaintiff is notentitled to any share in it. ( 27 ) THE next question for consideration is as to the manner of accounting of the business. We have held that the business in question was a joint business of narasimhaiah and his two sons, viz. , krishnappa and hanumanthappa. The business continued till narasimhaiah died and thereafter also it has been continued. On the death of narasimhaiah, his l/3rd share in the joint business in the hands of his sons became the ancestral property. In other words, it became a joint family property. In that the plaintiff, as already held by us is entitled to l/3rd share. The business continued till narasimhaiah died and thereafter also it has been continued. On the death of narasimhaiah, his l/3rd share in the joint business in the hands of his sons became the ancestral property. In other words, it became a joint family property. In that the plaintiff, as already held by us is entitled to l/3rd share. Therefore, accounting of the business shall have to be made in the same manner as it is done in the case of joint family business in so far it relates to l/3rd share of narasimhaiah. The plaintiff has not claimed the profits prior to the date of the suit. When the share of narasimhaiah in the joint business after his death has become a joint family business in the hands of his children, therefore, the accounting has to be ordered from the date of its demand. In the instant case that date can be taken as the date of filing of the suit. ( 28 ) AT this stage, Sri Patil, learned counsel appearing for the appellant submitted that 1/9th share of the plaintiff in the entire business be determined as on the date of the suit and from that date on the amount quantified as representing 1/9th share of the plaintiff, interest at the rate of 12% per annum from the date of suit be awarded instead of directing giving of accounts from the date of suit till the date of payment. This is a very reasonable submission and it will avoid difficulties on the part of the defendants to account from the date of suit till the date of payment of the money. However, the respondents are not in a mood to agree to it. Therefore, we cannot issue a direction on the basis of the submission made by the learned counsel for the appellants. But still we make it clear that during the final decree proceedings it will be open to the parties to agree to the same. Consequently, it will have to be ordered that on quantification of 1/9th share of the plaintiff in the entire business as on the date of the suit, the accounts of the business shall be taken from the date of suit till the date fixed for payment. If the amount is not paid within the date fixed for payment, it will carry interest at the rate of 12% per annum till realisation. If the amount is not paid within the date fixed for payment, it will carry interest at the rate of 12% per annum till realisation. Point No. 6 is answered accordingly. ( 29 ) FOR the reasons stated above, both the appeals are allowed. The judgment anddecree of the trial court are set aside. O. s. No. 2673/1980 is dismissed with costs. In o. s. No. 1176/1980, there shall be a preliminary decree for partition and separate possession of 1/3rd share of the plaintiff in items 1 and 2 and l/9th share in item no. 3 and the catering business at menaka theatre, kempegowda road, Bangalore. The plaintiff is entitled to have his l/9th share in the catering business at menaka theatre, kempegowda road, Bangalore, determined as on the date of the suit. The plaintiff is entitled to taking accounts and the defendants are to give accounts from the date of suit till the date fixed for payment in respect of his l/9th share as determined as on the date of the suit. If the amount is not paid within the date fixed for payment, it will carry interest at the rate of 12% per annum till realisation. The immovable properties shall be got divided through a court commissioner as the immovable properties are not agricultural estates assessed to revenue to the state. In the facts and circumstances of the case, there will be no order as to costs. ( 30 ) AFTER we pronounced the judgment, Sri Seshagiri Rao, learned counsel appearing for respondents-1 (a) and 1 (b) made an oral application under article 134-a read with article 133 of the Constitution to grant a certificate that the case involves substantial question of law of general importance which needs to be decided by the Supreme Court. ( 31 ) WE are of the view that we have decided the appeals on the evidence on record and the findings recorded by us are pure findings of fact. Hence in our view, no such substantial question of law of general importance which needs to be decided by the Supreme Court arises in the appeals. Therefore, certificate is refused. --- *** --- .