JUDGMENT : D.M. Patnaik, J. - Plaintiff is in appeal against the judgment dated 10-4-1989 and decree dated 18-4-1989 of the Subordinate Judge, Chatrapur dismissing the suit for partition. Plaintiff's case is, his father Kelu Panda died in the year 1984 and his mother Parbati @ Pari Panda, predecesed his father in the year 1975. Defendant No.1 is his elder brother and defendant No.2 is her sister. On 17/19-2-1958 his father effected a partition of their joint family properties under registered deed (Ext.A). wherein 'Ka' schedule properties fell to the share of the father, 'Kha' schedule properties fell to the share of defendant No.1 and 'Ga' schedule properties fell to the share of plaintiff. On 15-5-1970 their father executed an unregistered settlement deed (Ext. B) giving some lands to the defendant No.1 and the plaintiff. On 29-5-1978 Kalu again executed registered Will (Ext. C) in respect of the properties in favour of the plaintiff and defendant No.1. It is further case of the plaintiff that Item Nos. I, 3 and 4 of.' A' Schedule land under Ext. C, the Will were no partitioned by metes and bounds. Item No.2 the property under Ext. C belonged to the mother being her stridhan could not have been subject matter of bequest by father. After death of father on 10-11-1984 when defendant No.1 demanded partition by metes and bounds, the latter having refused, the plaintiff filed the suit. 2. Defendant No.1 filed a written statement denying the fact that the properties of the family still remained joint. He pleaded that father had divided all the shares by metes and bounds under the Will and physically delivered the possession and therefore no suit for partition could be maintained. With regard to item No.2 under Ext. C. i,e. the property in the name of the mother, the defendant took the plea that they were not the stridhan Properties of the mother, but were purchased in her name by Kelu and therefore the latter rightly bequeathed the same under the Will, Ext, C. It is his further case that since the father had sold some of the lands of defendant, in order to make good the loss, he gave to defendant Ac. 0.41.05 cents of land under survey plot No. 346 in village Kajiama under item No.1 under the Nirupama Parra, Ext. T. 3. 0.41.05 cents of land under survey plot No. 346 in village Kajiama under item No.1 under the Nirupama Parra, Ext. T. 3. The trial court framed the following issues: (1) Whether the plaintiff has any cause of action to file the suit? (2) Whether the suit properties are the joint family properties of the parties and ate liable for partition? (3) Whether the plaintiff is entitled to the mesne profit? (4) To what other relief The learned Subordinate Judge recorded the following findings. The lands described under Item Nos. 1. 2, and 4 of Schedule-A, the properties included in the Will were not liable to be partitioned since the document evidenced a full-fledged partition between the two. Secondly, no effective decree could be passed in respect of the Kotha lands under item No.3 in the absence of proper description of the land in question and in the absence of the recorded villagers as parties to the suit; and thirdly, the Nirupama Patra (Ext. T) dated 15-10-84 was a forged document. 4 Mr. C. R. Nanda, learned counsel for the appellant advanced extensive argument on the issues decided against the appellant by the lower court particularly emphasizing the error of the lower court with regard to the finding that the Will (Ext. C) proved a complete partition of the property thereunder by metes and bounds. With regard to item No.2 of the Schedule-A of the property measuring total area Ac. 1.02 decimals. Mr. Nanda submitted that the finding of the lower court that those properties were purchased under sale-deeds (Exts. F, G and M) was the property of father Kalu Panda is wrong. According to Mr. Nanda, since admittedly the Record -of- Rights dated 19-3-1976 stood in the name of mother and that there is no material to hold that the property was purchased in the name of Kalu Panda by way of benami, the land is liable to be equally partitioned by metes and bounds among the heirs of the mother. Mr. B. N. Rath, however, countered the argument of Mr. Nanda, thereby supporting the judgment of the lower court. 5. Having heard learned counsel for the parties and on going through the impugned judgment and the materials on record, I accept the argument of Mr. Nanda that the Will (Ext.C) does not indicate a fulfledged partition of the properties by metes and bounds. Nanda, thereby supporting the judgment of the lower court. 5. Having heard learned counsel for the parties and on going through the impugned judgment and the materials on record, I accept the argument of Mr. Nanda that the Will (Ext.C) does not indicate a fulfledged partition of the properties by metes and bounds. The recitals that the parties will partition the properties in two equal shares and the first party would take from the eastern side and the second party from the western side and would enjoy the property will indicate the previous wish of the father that the sons would take half and half. A few lines thereafter it is dearly indicated that to the convenience of both, the Same should be partitioned as indicated above and both would enjoy (DUl BHAGARE BANTl UPAROKTA PRAKARE UBHAYA BYAKTl BHOGA KARIBE). On going through the recitals there is no doubt that the Will itself is in the nature of a document defining the specific share of the parties. A preliminary decree was legitimately to be passed on the basis of the document, for partition. But this is not a final partition. Therefore, finding of the lower court is not sustainable in the eye of law. 6. So far as the property of the mother is concerned, the lower court held that the father was competent to Will it away in favour of the plaintiff and defendant. This is not correct. The R. O. R. in respect of that property prove that the same stood in the name of the mother alone. In the absence of any material with regard to benami transaction, particularly since no issue has been framed on that score, the finding of the lower court that the property of the mother, on the basis of Willnama (Ext. C), should go to the plaintiff and the defendant alone is incorrect. The same has to be divided in three equal shares among the parties. Since the plaintiff seeks partition of the properties under Ext. C and the finding of the court that there has been partition by metes and bounds as under Ext. C), should go to the plaintiff and the defendant alone is incorrect. The same has to be divided in three equal shares among the parties. Since the plaintiff seeks partition of the properties under Ext. C and the finding of the court that there has been partition by metes and bounds as under Ext. C is set aside and it is held that the mother's property will be divided into three equal shares, the lower court is hereby directed to go for a final decree as per law, provided the plaintiff abandons his claim so far as 'Kotha' land is concerned, otherwise that has to be divided in presence of necessary parties in which case the court shall have to pass a preliminary decree. I feel it unnecessary to go into the details of the other points discussed in the body of the judgment which I feel would be an idle exercise. However, the lower court will be free to deal with the any such point afresh if raised by either of the parries provided the court finds them to be relevant to the fact of the case. But so far as Ext. C is concerned, the lower court shall proceed to deal with a final decree proceeding in the light of the observations made above. 7. In the result, the appeal is allowed. The lower court judgment is set aside. The case is remitted back to the lower court for disposal in the light of the observation made above. No cost. Appeal allowed. Final Result : Allowed