Judgment :- This suit is filed for partition. 2. This suit has arisen in this way: — The plaintiffs are the daughters of one R.K. Mannulal. The defendant is the son of Mannulal. Mannulals wife was Subadra Devi. Mannulal died intestate on 15.3.1992. Subadra Devi died on 9.11.1981. She was the absolute owner of ‘A’ Schedule immovables and ‘B’ Schedule movables. Subadra Devi died intestate. Therefore, the plaintiffs, defendant and Mannulal were each entitled to 1/7th share in Subadra Devis estate. Mannulal died on 15.3.1992. Therefore, the plaintiffs have acquired 1/42 shares in the estate succeeded by Mannulal from his wife and thus, each plaintiff is entitled to 7/42 share, i.e., 1/6th share in the ‘A’ Schedule properties and the defendant is entitled to 7/42 share. 3. Mannulal was the absolute owner of ‘C’ Schedule immovable and ‘D’ Schedule movables. After the demise of Mannulal, each of the plaintiffs is entitled to 1/6th share and the defendant is entitled to 1/6th share. Therefore, the plaintiffs have come forward with the instant suit for allotment of their 7/42 share in ‘A’ and ‘B’ Schedules properties and 1/6th share in ‘C’ and ‘D’ Schedules properties to each of the plaintiffs. The defendant was managing ‘A’ and ‘C’ Schedule immovables, and therefore, he should render accounts for the income from ‘A’ and ‘C’ Schedule properties. They also seek a permanent injunction restraining the defendant from alienating the properties. 4. In his written statement, the defendant had admitted that ‘A’ and ‘B’ Schedule properties belonged to his mother, but ‘B’ Schedule item No. 1 jewellery consists of two items of jewelleries, i.e. , (a) the family jewellery which was to be worn by incoming bride in the family during the marriage ceremony and replaced back to the jewel box after the marriage, and (b) the jewellery which was given to the bride by her parents and parents-in-law at the time of her marriage. According to the defendant, the plaintiffs as daughters of the family, had close nexus with their mother and have slowly dissipated the family jewelleries. The defendant admits the availability of item No. 2 of ‘B’ Schedule movables. According to the defendant, the plaintiffs as daughters of the family, had close nexus with their mother and have slowly dissipated the family jewelleries. The defendant admits the availability of item No. 2 of ‘B’ Schedule movables. According to him, ‘C’ and ‘D’ Schedule properties are allotted to the father in two partitions effected between the father and son on 29.3.1965 and 30.12.1969, but the father has bequeathed his share to the defendant under a registered Will dated 12.4.1990, and therefore, the plaintiffs cannot claim any share in ‘C’ and ‘D’ Schedule properties. He had also pleaded that item No. 3 of ‘C’ Schedule properties is a dwelling house, in which he is residing and the plaintiffs cannot seek partition of the s ame as per the provisions of Section 23 of the Hindu Succession Act. He had also pleaded that the plaintiffs have not paid the proper Court-fees. 5. The following issues were framed on the pleadings: — 1. Whether the defendant is entitled in law to rely upon an unprobated Will purported to have been executed by the parties father Mr. R.K. Mannulal in defence to the partition suit in respect of Plaint ‘C’ and ‘D’ Schedule properties? 2. Whether the defendant has any legal defence for partition of Plaint A to D Schedule properties and for accounting in respect of plaint ‘A’ and ‘C’ Schedule properties? 3. Whether the plaintiffs are in joint possession with the defendant? 4. Whether there has been a merger of the fathers estate and mothers estate and whether such a merger is valid in law? 5. Whether the suit has been properly valued for purposes of Court fee? 6. Whether the plaint averment that there was no love lost between the father and the son is true?7. Whether the averment that the father R.K. Mannulal was continuously ill, lacking the disposing state of mind from 1989 till his end is true? 8. Whether the plaintiffs are competent to allege that the father lacked disposing state of mind?9. Whether the plaintiffs are entitled to the relief of accounts? 10. Whether there is no cause of action for the suit? 11. To what relief. 6. The plaintiffs have examined the third plaintiffs husband Mr. 8. Whether the plaintiffs are competent to allege that the father lacked disposing state of mind?9. Whether the plaintiffs are entitled to the relief of accounts? 10. Whether there is no cause of action for the suit? 11. To what relief. 6. The plaintiffs have examined the third plaintiffs husband Mr. Harbia Singh Ahuwalia as P.W.1 and marked Exs.P.1 to P.6 documents, i.e., the registration copy of the partition deeds entered into between late Mannulal and the defendant on 29.3.1965 and 30.12.1969 as Exs.P.1 and P.2 respectively; Ex.P.3 copy of the Valuation Certificate given by Bapalal & Co. Jewellers regarding the existence of ‘D’ Schedule item No. 2 movables; Exs.P.4 and P.5 Income-tax returns relating to the estate of their later moth er; and Ex.P.6 a letter from the defendant to his father written on 26.3.1986. 7. The defendant examined himself as D.W.1 and marked Exs.D.1 letter from the plaintiffs to the defendant written on 7.4.1992, Ex.D.2 legal notice from the defendant to the plaintiffs issued on 16.4.1992 with five postal acknowledgements. Ex.D.3 legal notice from the counsel for the plaintiff to the defendant issued on 9.4.1992, and Ex.D.4 reply dated 21.4.1992. 8. Issue No. 1 : — It is not in dispute that ‘A’ and ‘B’ Schedule properties are the absolute properties of late Subadra Devi, the mother of the plaintiffs and the defendant, who died intestate. It is also admitted that ‘C’ and ‘D’ Schedule properties are the absolute properties of the father, which had been allotted to him in the family partitions effected under Exs.P.1 and P.2. The case of the defendant is that the father has left behind a registered Will dated 12.4.1990 under which he had bequeathed his share in his wifes estate and also the half share allotted to him in the earlier partition in favour of the defendant. In other words, according to the defendant, the fathers 1/7th share in ‘A’ and ‘B’ Schedule properties and the entire extent in ‘C’ and ‘D’ Schedule properties had been bequeathed by his father in favour of the defendant. Several circumstances had been pleaded by the defendant as to why the father thought it fit to bequeathe the properties to him and also the plaintiffs have raised several pleas as to how the father would not have executed a Will in favour of his son. Several circumstances had been pleaded by the defendant as to why the father thought it fit to bequeathe the properties to him and also the plaintiffs have raised several pleas as to how the father would not have executed a Will in favour of his son. Ex.P.6 letter would show how disrespectful the son had been in addressing the father by addressing him as “Mr. Mannulal” instead of “dear father” how he had been finding fault with the father, which would show that the father might not have bequeathed his share in favour of a recalcitrant son. The defendant, on the other hand, pleaded that under Exs.P.1 and P.2 the father has well provided for his married daughters for their maintenance, etc. and having given them enough properties, he had thought it fit that his share should be given to his son. Further, it was also pleaded that the plaintiffs were aware of the Will within one week of the death of the father. He had sent a xerox copy of the Will to his sisters, which had been acknowledged by the sisters under Ex.D.1. Ex.D.1 would go to show that the sisters disputed the genuineness of the Will. 9. I am not going to consider whether or not there is a valid Will and whether or not there is any love lost between the father and son, because they are the matters to be considered in the probate proceedings, if any. The only question that has to be considered is whether the defendant can set up the plea of bequest in the instant case. It is evident that the alleged Will had not been probated. 10. Section 213 (1) of the Indian Succession Act recites as under: — “213. Right as executor or legatee when established : (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted Letters of Administration with the Will or with a copy of an authenticated copy of the Will annexed.” 11. Mr. Mr. G. Subramanian, the learned senior counsel for the plaintiffs submitted that an unprobated Will cannot be acted upon for any purpose, that a person neither can raise a plea as a plaintiff and nor can he use it as a defence on the basis of a Will in a suit, in which, propertys rights are involved, unless probate of the Will has been obtained. 12. In Vaidurayamma v. Suryanarayana (1997 1 L.W. 49 = 1997 I M.L.J. 2), their Lordships M. Srinivasan, J. (as his Lordship then was) and S.S. Subramani, J. have pointed out that under the provisions of the Indian Succession Act, a Will which is not probated cannot be acted for any purpose. In paragraph 11 of the judgment, their Lordships have referred to an earlier judgment of this Court reported in Ganshamdoss Narayandoss v. Gulab Bibai (A.I.R. 1927 Mad. 1054 (F.B.), in which it has been held as under: — “Sec. 213 creates a bar to the establishment of any right under Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained, whether the right is claimed by the person as a plaintiff or defendant;” Their Lordships have also pointed out that this view has been accepted by the Supreme Court in Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose and others (A.I.R 1962 S.C. 1471). It would be thus evident that an unprobated Will cannot be used to enforce a right or in defence of a right. It is evident that an unprobated Will is a document non-est , which can neither be used as a shield nor as a sword. 13. In Naraindas Lilaram Adnani v. Narsigdas Naraindas Adnani (1995 Supp (1) S.C.C. 312), their Lordships of the Supreme Court have pointed out that an unprobated Will cannot be used by a party to get himself impleaded as an executor of the Will. It would be thus evident that no rights flow from an unprobated Will. 13. In Naraindas Lilaram Adnani v. Narsigdas Naraindas Adnani (1995 Supp (1) S.C.C. 312), their Lordships of the Supreme Court have pointed out that an unprobated Will cannot be used by a party to get himself impleaded as an executor of the Will. It would be thus evident that no rights flow from an unprobated Will. Though the learned counsel for the defendant had submitted that the defendant has taken all steps to have the Will probated, till this day, it appears, no such probate proceedings are pending, that would indicate that the Will, if any, is still an unpr obated Will and the Court cannot go into the aspect about the existence or not of the Will. I hold that the defendant, under law, is not entitled to rely upon the unprobated Will to claim exclusive right to his fathers 1/7th share in the mothers estate regarding ‘A’ and ‘B’ Schedule properties and he cannot claim exclusive rights to ‘C’ and ‘D’ Schedule properties. I answer Issue No. 1 accordingly. 14. Issue No. 2 : — So far as ‘A’, ‘C’ and ‘D’ Schedule properties and ‘B’ Schedule Item No. 2 properties are concerned, the defendant has not put forth any legal defence for partition apart from pleading that the fathers share had been bequeathed to him. So far as ‘B’ Schedule Item No. 1 jewels are concerned, it is the case of the defendant that the jewels consist of two items, namely, the family jewels which were given to the incoming bride to be worn at the occasion of the marriage and the jewels which were given to the bride by her parents and parents-in-law. So far as the second category jewels are concerned, the defendant has not raised such plea that ‘B’ Schedule properties contain the jewels given to his wife by his parents and parents-in-law at the time of the marriage. Regarding category No. 1 jewels, it is the case of the defendant is that the family jewelleries had been looted by his sisters and no family jewels are available. A Commissioner has visited the properties and has taken an inventory. The learned counsel for the defendant submitted that the Commissioners report cannot be accepted, as it had not been marked as a document. A Commissioner has visited the properties and has taken an inventory. The learned counsel for the defendant submitted that the Commissioners report cannot be accepted, as it had not been marked as a document. The learned counsel for the plaintiff submits that the Commissioners report is admissible as an evidence, without being it marked as a document. The learned counsel refers to provisions of Order 26, Rule 10(2), of the Code of Civil procedure, which recites as under: — “10(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.” It is thus evident that the Commissioners report can be admitted in evidence without it being marked as an Exhibit. The defendant had not filed any objections to the Commissioners report, nor had he sought for examination of the Commissioner as a witness. 15. So far as family jewellery is concerned, though the plaintiffs have not given any details, they pleaded that the mother had left behind jewellery weighing 1429 grams. Absolutely, there is nothing to show that the property is not available or that it has been looted by the sisters. The mother admittedly died on 9.11.1981. After the death of the mother, Income-Tax returns have been submitted to the concerned authorities as evidenced by Exs.P.4 and P.5 documents. Exs.P.4 and P.4 are the statements of assessable income for the year 1989-1990 and 1990-1991 relating to the assets of Subadra Devi, wherein in Annexure-VI, the jewels weighing of 1429 grams are referred to. It is thus evident that the jewels were available after the death of the mother. The defendant had not established that the jewels had been looted by the sisters. Anyway the question what are the jewels available has to be gone into at the time of final decree proceedings, because the instant partition suit is only to bring about a division of joint status among the parties. The defendant had not established that the jewels had been looted by the sisters. Anyway the question what are the jewels available has to be gone into at the time of final decree proceedings, because the instant partition suit is only to bring about a division of joint status among the parties. The other aspects have to be worked out at the time of the final decree proceedings. Suffice it mention that by producing Exs.P.4 and P.5, the plaintiffs have established that the mother had left behind jewels weighing 1429 grams and the defendant had not established that the sisters looted the jewels. 16. Though no specific issue has been framed, I consider, it would be expedient to deal with an objection raised by the defendant in his written statement regarding ‘C’ Schedule item No. 3 house. ‘C’ Schedule item No. 3 is described in the plaint as under: “House, ground and premises bearing Door No. 40, Nagappa Iyer Street, Triplicane, Madras, bounded on North by No. 9, Chinnathambi Street, South by Nagappa Iyer Street, East by Door No. 33, Nagappa Iyer Street, West by Door No. 31, Nagappa Iyer Street.” 17. According to the defendant, the Western half of this property is a family dwelling house; he is residing there as the privilege of male member and that as per the provision of Section 23 of the Hindu Succession Act, the plaintiffs who are his sisters cannot ask for partition of this property unless and until he chooses to divide the property. Section 23 of the Hindu Succession Act recites as under: — “23. Section 23 of the Hindu Succession Act recites as under: — “23. Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.” The object of the section is to prevent fragmentation and disintegration of a dwelling house at the instance of the female heir and also to avoid hardship that may be caused to the male heir. A question may arise whether the special restriction enacted in this section on the right of a female heir to demand actual partition of the family dwelling-house applies when there is only one male heir of the intestate under Class I of the Schedule. The words ‘until the male heirs choose to divide their respective shares therein’ may suggest that there must be at least two such male heirs if the restriction is to operate. The object of the special provision is to prevent female heirs and particularly a daughter of the intestate from creating a situation in which partition of the family house may entail a forced sale of it or otherwise cause hardship to the son or sons of the intestate where it may not be possible for the son or sons to buy off the share of the female heir who insists on actual partition of it. It is to be pointed out that there is nothing repugnant in the subject or context to prevent the operation of the rule laid down in Section 13(2) of the General Clauses Act to the effect that the plural shall include the singular and the restriction will apply even where there is only one male heir who does not choose to divide his respective share in the dwelling-house. It would seem that the right of a female heir to demand partition may be deferred and remain in abeyance under this section till the lifetime of the male heirs enumerated in Class I of the Schedule or the last survivor of them unless a partition of the dwelling-house is sought by any one of them before such time. The restriction will cease to operate on the death of the last of such male heirs of the intestate or where there are only one male heir and one female heir and the male heir chooses to sell his moiety in the dwelling-house. 18. The second defendant as D.W.1 admits that this property is an ancestral property. In his written statement, the defendant has specifically pleaded that he is residing in the western half of the property. It is not his case that the whole house is occupied by him. In the course of his evidence, he had stated “My fathers younger Jagannath Lala was also living in 40, Nagappa Iyer Street, Triplicane. I do not know in what capacity my uncle was residing in the property and his family still continues to reside in the property. They have their own separate ingress and egress to the prior portion of the property and separate meals. I do not know whether they were divided or not.” Such version would clearly go to show that the property bearing door No. 40, Nagappa Iyer Street is partly occupied by certain other persons. Presumably some partition was effected between Mannulals father and his brother, in which a share was allotted to Mannulals younger brother, who is in occupation of a portion of this property. When the dwelling house is not wholly in exclusive occupation of the second defendant, and when it is made clear that part of which is in occupation of some other person who does not come within the description of member of Mannulals family, it cannot be said that the second defendant can insist on the provision of Section 23 of the Hindu Succession Act and claim that the house cannot be subjected to partition till he elects to divide. I answer Issue No. 2 accordingly. 19. Issue Nos. I answer Issue No. 2 accordingly. 19. Issue Nos. 3 and 5 : — It is contended by the defendant that the plaintiffs are not in joint possession of the properties with the defendant and, therefore, the Court fee paid by them under the presumption that they are in joint possession, is not acceptable. The plaintiffs and defendant are all co-owners of the property. They are presumed to be in joint possession of the properties. The plea set up by the defendant is that after the demise of the father, the fathers estate vests in him as an executor of his Will and he has been in exclusive possession after the death of his father and, therefore, the plaintiff cannot be presumed to be in joint possession of the properties in view of the Will coming into force. I have already pointed out that the defendant had not probated the Will, for me to consider whether by virtue of the Will, he had exclusive title and exclusive possession for him to plead that the plaintiffs are not in joint possession and therefore, they should pay ad valorem Court fee on half of the market value of the fathers estate. I hold that the plaintiffs as co-owners are in joint possession of the properties and the Court fee paid is correct. 20. Issue No. 4 : — This issue had been wrongly framed. The learned counsel appearing for either side have not advanced any arguments on this issue. In paragraph No. 9 of the written statement, the defendant had pleaded that the father had several bank accounts, in which he or any of the plaintiffs were joined as ‘Either’ or ‘Survivor’ account. That by virtue of testamentary disposition, the ‘Either’ or ‘Survivor’ accounts become part of the estate of the deceased and thus merges into the bequest in favour of the defendant. Under Issue No. 1, I have already held that the defendant cannot set up the plea of bequest on the basis of an unprobated Will, and, therefo re, this plea falls to ground. 21. Issue Nos. 6, 7 and 8 : — In view of my finding under Issue No. 1 these issues do not arise for consideration in the instant proceedings. 22. 21. Issue Nos. 6, 7 and 8 : — In view of my finding under Issue No. 1 these issues do not arise for consideration in the instant proceedings. 22. Issue No. 9 : — The plaintiffs have pleaded that the defendant as a male member had been administering the estate of the parents and he is bound to render accounts. The only plea of the defendant is that by virtue of the bequest, he has become the exclusive owner and, therefore, he is not bound to render accounts. In view of the finding under Issue No. 1 this issue has to be answered in favour of the plaintiffs. 23. Issue No. 10 : — Under Issue No. 1, I have already pointed out that the plaintiffs have a right of inheritance to the estate of their parents. The plaintiffs have issued a legal notice to the defendant under Ex.D.3 on 9.4.1992 demanding partition. The claim has been refuted under Ex.D.4 reply notice. Therefore the plaintiffs have come forward with the instant suit. It cannot be said that there is no cause of action for the suit. 24. In the result, a preliminary decree is passed with costs. The costs to come out of the estate. Rendition of the accounts shall be considered by separate enquiry under Order 20, Rule 12, C.P.C.