JUDGMENT M.R. Verma, J.—This is plaintiffs suit praying for partition of the immovable properties, rendition of accounts and mandatory injunction. Their case, as disclosed in the latest amended plaint dated 29.10.1998, is that Shri Roshan Lal Butail died on December 4, 1984, leaving behind the plaintiffs and defendant No. 1 as his legal representatives. According to plaintiffs, said Roshan Lal Butail died intestate though some Wills allegedly executed by him are being set up by the defendants because he was afflicted with a severe attack of paralysis much before his death as a result of which his mental capabilities were very adversely affected rendering him incapable of making any Will with a sound and proper application of his mind. He could not even speak. At the time of his death, said Roshan Lal Butail (hereafter referred to as "the deceased") owned the following immovable properties : "(a) Ancestral plots at village Pragpur, Teh. Dehra, Distt. Kangra. (b) Ancestral property known as Block No. 99/3, New Butail Building, Shimla, a three storeyed multi suite building which had been allotted in partition to Shri Roshan Lal by his father late Shri Badri Dass Butail in family partition wThich took place between him, his brothers S/Shri Surinder Lal Butail and Rajinder Lalo Butail. (c) 2-1/2 storeyed building, bearing House No. S-340, Greater Kailash Part I, New Delhi, self acquired property of late Shri Roshan Lal." These properties are more specifically detailed vide Annexure A filed with the plaint. 2. The deceased also possessed moveable assets comprising cash, money lying in the banks and furniture etc. After his death, claim the plaintiffs, his entire estate devolved on the plaintiffs and defendant No. 1, plaintiff No. 1 having 5/16th share in the "joint family coparcenary property at Shimla and Pragpur" and l/4th share in the property at Delhi, plaintiff No. 2 having l/4th share in the suit properties and plaintiff No. 3 having l/16th share in the "ancestral joint family properties" and 1/ 4th share in the immovable property in New Delhi. The ancestral properties were coparcenary properties in the hands of the deceased in which all male members got share by birth and the parties to the suit are governed by Mitakshra School of Hindu Law in the matter of coparcenary property. The ancestral properties were coparcenary properties in the hands of the deceased in which all male members got share by birth and the parties to the suit are governed by Mitakshra School of Hindu Law in the matter of coparcenary property. Plaintiffs further claim to be in joint possession of all the properties left by late Shri Roshan Lal at the time of his death and also in exclusive physical occupation of top floor of the house in Delhi and a flat in the Middle floor of Block No. 99/3, Butail Building, Shimla. Since plaintiffs 2 and 3 are permanently settled in United States of America and plaintiff No. 1 had been in service as a teacher in a school at Halwara, defendant No. 1, by taking undue advantage of the situation procured a power of attorney from deceased Roshal Lal for realising the rents of the suit properties in 1984 and since then he had been realising the rents and has realised substantial amount of rents and has also withdrawn substantial amount from the accounts of the deceased but has failed to render accounts of the same despite demands by the plaintiffs, obviously with a dishonest/ mala fide motive of mis-appropriating the said amounts. He is further alleged to have realised substantial amount of premium for letting out a portion of the property in New Delhi and after the death of said Roshan Lal Butail, defendant No. ls attitude has been to grab almost whole of the property and oust the plaintiffs. Defendant No. 1 by making false and wrong representations to plaintiffs 2 and 3 managed to procure in his favour a General Power of Attorney for them for managing the affairs of the joint property left by late Shri Roshan Lal and on the strength of said power of attorney, collected substantial amounts and also asked plaintiff No. 2 to remit him amounts for managing the joint property When the plaintiffs came to know about the dishonest intentions of defendant, the power of attorney so executed was cancelled and the concerned banks were also advised not to allow any withdrawals of any amounts out of the amounts which stood deposited in the name of said Roshan Lal Butail. To protect their rights and interests in the joint properties left by said Roshan Lal, plaintiffs now do not want to keep the properties joint with defendant No. 1 who is trying to illegally grab the same by forging a Will and the income wherefrom is being illegally mis-appropriated by him, and want their share to be partitioned by metes and bounds and to be put in exclusive possession of their shares including the moveable assets. It is further claimed that lstridhan of plaintiff No. 1, i.e. golden ornaments, are also lying in the lockers, which is the exclusive property of plaintiff No. 1 and are liable to be delivered to her after the lockers taken by said Shri Roshan Lal Butail are ordered to be opened. Such ornaments consist of 5/6 gold rings weighing about 4 tolas, two pairs of gold ear rings, two pairs of gold buttons, 4 gold bangles and one gold chain. It is further the case of the plaintiffs that defendant No. 1 is liable to render true and correct account of income of joint properties and the moneys which he has withdrawn from the accounts of late Shri Roshan Lal Butail and pay to the plaintiffs their shares in such amounts with interest @ 18% per annum as he has used such amounts for his own exclusive use, thereby depriving the plaintiffs from user thereof. The plaintiffs have also claimed that their possession on top floor suite of the house in New Delhi and the rooms in the middle floor in the building at Lower Bazar, Shimla also deserves to be protected. Hence the present suit. 3. The defendants contested the claim of the plaintiffs. In their joint written statement, they raised the preliminary objections that the suit in the present form is neither competent nor maintainable; that the suit has not been properly valued for purposes of Curt fee and jurisdiction; that the plaint has not been verified in accordance with law; that the plaintiffs are estopped from filing the suit due to their acts, deeds, conduct and acquiescences; that the suit is bad for non-joinder of necessary parties; that the plaint lacks full and material particulars and that the suit is barred by the principle of res judicata. On merits, the status of the plaintiffs as the legal heirs of the deceased has been denied and it has been claimed that they have no right, title and interest in the estate left by the deceased which has devolved upon the defendants in accordance with the Will duly executed by the deceased on 18.10.1984. The allegations that the deceased was incapable of executing the Will due to the alleged illness have been denied and it has been claimed that he had a sound disposing state of mind till the date of his death. It has, however, been admitted that the deceased married plaintiff No. 1 sometime after the year 1942, after the death of his previous wife and mother of defendant No. 1 Smt. Sheela Devi. Plaintiffs 2 and 3 are also admitted to be the son and daughter of the deceased out of the wedlock with plaintiff No. 1. It is, however, claimed that plaintiff No. 1 deserted the deceased in the year 1965 whereas defendant No. 1 continued to serve him and used to look after him in the absence of plaintiffs 2 and 3 who were living abroad. Plaintiff No.1 did not join the company of the deceased for the rest of his life and did not even visit the house at the time of his death. The Will executed by the deceased on 4.10.1984 was in-fact at the instance of plaintiff No. 2 who took active interest in getting the Will prepared. However, after having realised the plans of the plaintiffs, the deceased revoked the said Will and executed the Will dated 18.10.1994 whereby he bequeathed his properties in favour of defendants etc. mentioning therein the special reasons for depriving the plaintiffs of any right in the property and also the reasons for giving the share in the properties to the defendants. As per the last Will so executed, the residential house situated in Greater Kailash devolved upon defendants 2 and 3 and the New 3utail Building at Lower Bazar, Shimla devolved upon defendant No. 1. Since plaintiffs 2 and 3 are permanently settled in United States of America, therefore, they were given six vacant residential plots of land situate at Pragpur. All moneys lying in the various banks have been given equally to the defendants etc. Since plaintiffs 2 and 3 are permanently settled in United States of America, therefore, they were given six vacant residential plots of land situate at Pragpur. All moneys lying in the various banks have been given equally to the defendants etc. after meeting the expenses, such as unpaid medical bills, taxes, funeral rites, estate duties and repairs of the buildings. Defendant No. 1 is the executor of the Will who has been empowered to distribute the allotted share amongst the persons who are the beneficiaries under the Will. It is further averred that on 8.7.1984, a notice was sent by one Dr. Kailash Nath Sood through his counsel Shri Ajay Kumar Sood, Advocate to plaintiff No. 1 and defendant No. 1 informing that he had in his possession a sealed envelop containing the Will of late Roshan Lal Butail. Later on Dr. Kailash Nath Sood handed over the said envelop to plaintiff No. 1. About the said envelop, plaintiff No. 1 took false stand that the envelop so delivered to her was empty whereas she knew that it contained the valid Will executed by the deceased on 18.10.1984 which is the last Will of the deceased. The claim of the plaintiffs in the suit properties has been denied and it has also been denied that they are in joint possession of the properties left by the deceased, except flat Nos. 9 and 10 which the plaintiff No. 1 had unauthorisedly occupied under some secret deal after the death of Shri Roshan Lal Butail. The claim of the plaintiffs for rendition of accounts has also been denied on the ground that they have no right to claim it and realisation of any premium or mis-appropriation of any amount, as claimed in the plaint, has also been denied. On the contrary, it has been claimed that a sum of Rs. 30,000 each had been paid to plaintiffs 2 and 3 after the death of Roshan Lal Butail out of the accounts of the deceased which were operated on either or survivor basis. Apart from the aforesaid amounts, a sum of Rs. 20,000 has been paid by defendant No. 1 to plaintiffs 2 and 3 in cash. 30,000 each had been paid to plaintiffs 2 and 3 after the death of Roshan Lal Butail out of the accounts of the deceased which were operated on either or survivor basis. Apart from the aforesaid amounts, a sum of Rs. 20,000 has been paid by defendant No. 1 to plaintiffs 2 and 3 in cash. After having received these amounts, the plaintiffs served notices for stopping the payment of any amount rendering defendant No. 1 handicapped either in making payment of the municipal taxes or in carrying out the repairs of the properties. The allegations of dishonest intention to grab the properties as alleged in the plaint have been denied and it is claimed that in-fact, even under the Will, he has got lesser share than he would have got otherwise. The obtaining of General Power of Attorney from plaintiffs 2 and 3 with mala fide and dishonest intention has also been denied. It is further claimed that one of the lockers of deceased with the State Bank of India, Parliament Street, New Delhi was in the name of the deceased and his niece Nirmala Devi Sood which was operated by either or survivor. Another locker in the Central Bank of India, Greater Kailash, New Delhi, was also in the joint name of Santosh Kumari and the deceased and thereafter this locker was transferred in the name of the deceased and defendant No. 1 and the wife of defendant No. 1 to be operated by either or survivor. The defendants have given the details of the Saving Bank Accounts of the deceased in the written statement. It is, however, claimed that these accounts were in the name of the deceased and defendant No. l . Out of the deposits in the account, a sum of Rs. 60,000, as already stated, was paid to plaintiffs 2 and 3 by defendant No. 1 and payments to meet other numerous expenses were made from these accounts which were operated by defendant No. 1 even during the life time of the deceased to meet day to day household expenses etc. The ornaments as claimed are stated to be not in the lockers. Hence the claim of the plaintiffs has been denied. 4. Plaintiffs filed replication wherein they denied the grounds of defence as taken in the written statement and re-affirmed the claim as made out in the plaint. 5. The ornaments as claimed are stated to be not in the lockers. Hence the claim of the plaintiffs has been denied. 4. Plaintiffs filed replication wherein they denied the grounds of defence as taken in the written statement and re-affirmed the claim as made out in the plaint. 5. On the pleadings of the parties, the following issues were framed: 1. Whether the properties in the suit are joint and ancestral properties qua the parties, as alleged in the plaint? OPP 2. Whether the plaintiffs and defendants are in joint possession of the suit properties, as alleged and if so in what capacity? OPP 3. Whether the plaintiff is entitled to a decree of partition and rendition of accounts, as prayed for, and if so, what are the shares of the parties in the suit property? OPP 4. Whether the defendant No. 1 has collected the rents/profits of the suit property as alleged in the plaint and is liable to account for the same? OPP 5. Whether the Istridhan of the plaintiff is in the locker of the deceased late Sh. Roshan Lal Butail or with the defendant No. 1 as alleged? OPP 6. In case issue No. 5 is proved in the affirmative, whether the plaintiff is entitled to a decree for mandatory injunction as prayed for by her? OPP 7. Whether late Sh. Roshan Lal executed a legal and valid Will on 18.10.1984 in favour of the defendant No. 1 and his sons as alleged in the written statement? OPD. 1, 4 and 5. 8. Whether the suit in the present form is neither competent nor maintainable as alleged? OPP-1. 9. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction and if so, what is the correct valuation thereof? OPD-1. 10. Whether the plaint has not been verified in accordance with law as alleged? OPD.-l. 11. Whether the plaintiff is estopped from filing the present suit on account of her own acts, deeds, conduct and acquiescence etc. as alleged? OPD-1. 12. Relief. 6. On 18.5.1999, the following additional issues were framed: 11-A. Whether the plaint lacks material particulars and the averments in the plaint are mutually contradictory and destructive, as alleged. If so, its effect? OPD. 11-B. Whether the suit is barred by the principles of res judicata, as alleged? OPD. 7. Parties led evidence. 8. as alleged? OPD-1. 12. Relief. 6. On 18.5.1999, the following additional issues were framed: 11-A. Whether the plaint lacks material particulars and the averments in the plaint are mutually contradictory and destructive, as alleged. If so, its effect? OPD. 11-B. Whether the suit is barred by the principles of res judicata, as alleged? OPD. 7. Parties led evidence. 8. I had heard the learned Counsel for the parties and have also gone through the records. 9. My issuewise findings are as follows: Issue No. 7 10. Since the findings on this issue will have direct bearing on the fate of issue Nos. 1 to 4, therefore, it is taken up first for decision. 11. It is defendants case that the deceased had executed the Will Ex. DW-5/A which is his last Will. It is by now well settled that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. However, in case there are suspicious circumstances, then the propounder has to further explain them to the satisfaction of the Court so as to render the Will acceptable as genuine. (See Prem Singh and another v. Padam Singh and others, (2000 (1) SLJ 721). 12. The Will Ex. DW-5/A, on the face of it, is executed by the deceased on 18.10.1984 and is attested by DW-5 Ramakant Sachdeva and one Mr. Ajit Ahuja, Advocate. It was contended by the learned Counsel for the defendants that in view of the statement of DW-5 Ramakant Sachdeva the due execution of Will Ex. DW-5/A by the deceased is fully proved and it is further proved in view of the statements of DW-5 and DW-6 (defendant No. 1 Madan Lai Butail) that at the time of execution of the Will the deceased was in a sound and disposing state of mind, thus capable of fully understanding the nature and effect of his acts. It was further contended that the Will Ex. DW-5/A in itself details the reasons for making it in the manner in which it has been made. 13. On the other hand, the learned Counsel for the plaintiffs had contended that there is no satisfactory evidence about the execution of Will which is surrounded by highly suspicious circumstances. It was further contended that the Will Ex. DW-5/A in itself details the reasons for making it in the manner in which it has been made. 13. On the other hand, the learned Counsel for the plaintiffs had contended that there is no satisfactory evidence about the execution of Will which is surrounded by highly suspicious circumstances. Such circumstances, as pointed out by the learned Counsel for the plaintiffs, are as follows: (i) The alleged Will is not signed but thumb marked by the deceased who was well educated. According to DW-6 the deceased did not sign any document etc. after November/December 1983 allegedly because of illness as he was suffering from paralytic attack. But the explanation is incorrect in view of the fact that documents Exs. DW-6/A, DW-2/A and Mark B, respectively dated 16.4.1984, 16.4.1984 and 25.5.1984, relied and produced in evidence by the defendants are signed by the deceased. Similarly, the documents relied upon and proved by the plaintiffs i.e. Exs. PW-3/B, PW-3/C and PW-5/B dated 22.5.1984,3.7.1984 and 2.4.1984 respectively are signed by the deceased. In case the deceased had signed these documents on the aforesaid dates as is the case of the defendants themselves and proved by the plaintiffs, then the version that the deceased stopped signing the papers in November/December 1983 is simply false and renders the thumb marked Will dated 18.10.1984 highly suspicious. (ii) The document relied upon and filed by the defendant vide list dated 5.12.1986 at Sr. No. 16 and the original whereof was produced I vide order dated 4.5.1987 on part B of the Court file on the same day by the counsel for defendant No. 1, is a special power of attorney purporting to have been executed by the deceased thereby constituting defendant No. 1 his special power of attorney and was executed on 18.10.1984, the day when the Will Ex. DW-5/A was also allegedly executed and Mr. Ajit Ahuja, Advocate is common witness of these documents. The special power of attorney executed on the same day was handed over to defendant No. 1 but the defendant claims to have found the Will at the later stage after the death of the testator, in his records and till then he was unaware of the existence of the alleged Will. The special power of attorney executed on the same day was handed over to defendant No. 1 but the defendant claims to have found the Will at the later stage after the death of the testator, in his records and till then he was unaware of the existence of the alleged Will. Had the Will been executed on 18.10.1984 when special power of attorney was also executed, it could be handed over to defendant No.l alongwith the special power of attorney, more-so when according to the alleged Will he was appointed to execute the Will or he could be at least informed of the execution of the Will which is not the case here. Therefore, the Will appears to be a fabricated piece of evidence. (iii) The copy of special power of attorney aforesaid is not the true copy of the original inasmuch as the original bears the affixed stamps at first page alongwith two seals of Notary, second page bears one stamp of Notary and the last page also bears the stamp and attestation dated 22.10.1984 by the Notary whereas these stamps and attestation are altogether missing in the photo copy of the special power of attorney filed by the defendants. Thus this document appears to be manipulated and if so, same can be the case of the Will. (iv) Defendant No. 1 acting as General Attorney in Case No. 52/ 2 of 1984 on 1.3.1985 filed on application Ex. DX to bring on record the plaintiff Nos. 2 and 3 and himself as legal representatives of the deceased and supported the application by his affidavit Ex. DY and filed power of attorney Ex. DZ. Similarly, in case No. 43/2 of 1984 he filed an application Ex. DZ-1 dated 26.2.1985 to bring on record the aforesaid persons as legal representatives of the deceased and also filed Vakalatnama Ex. DZ-2 dated 26.2.1984 as General Attorney of plaintiff Nos. 2 and 3, and thereby admitted two of the plaintiffs as legal representatives of the deceased. Had there been any Will in his favour as claimed now, he would have applied to bring him alone on record as legal representative of the deceased in the said cases. DZ-2 dated 26.2.1984 as General Attorney of plaintiff Nos. 2 and 3, and thereby admitted two of the plaintiffs as legal representatives of the deceased. Had there been any Will in his favour as claimed now, he would have applied to bring him alone on record as legal representative of the deceased in the said cases. (v) Defendant No. l(DW-6) in his statement has not disclosed the date on which he detected the Will in the records of the deceased, but in the written statement it has been averred vide para 2 that the Will was traced "somewhere in the month of April/ May 1985". Defendant No. 1, however, had admittedly paid Rs. 30,000 each by cheques Exs. PW-6/D and PW-6/E to plaintiffs on 15.12.1984 and cash Rs. 20,000 after settling the matter with them and on their request. If the Will was traced in April/May 1985, how could he settle the matter with plaintiffs 2 and 3 as claimed now. This also renders the version regarding the Will highly suspicious and improbable, more-so when the defendants did not care to inform other heirs of the deceased about the Will. (vi) The deceased immediately before his death, remained admittedly admitted in different hospitals/nursing homes and was ill for the last many years and had suffered paralytic attack and was suffering from second stage of carcinoma. Therefore, at the time of alleged execution of the Will, when he was under treatment and as can be gathered from the statement of defendant, was admitted in the hospital, he was not in a sound disposing state of mind. (vii) The attesting witnesses though have betrayed ignorance and denied any relation with defendant No. 1 through his wife but in the surrounding circumstances of the case, they cannot be said to be independent, reliable and trustworthy witnesses. 14. Before I proceed to examine the respective contentions for the parties, be it stated that Roshan Lal Butail died on 4.12.1984. The Will Ex. DW-5/A is dated 18.10.1994 and is stated to have been executed at his residence. On the face of it, this Will refers to an earlier Will dated 4.10.1984 executed by the deceased but was cancelled by this Will. At the material time, the deceased was admittedly under treatment and remained admitted in different hospitals, and was not attended to by any of the parties to the suit. On the face of it, this Will refers to an earlier Will dated 4.10.1984 executed by the deceased but was cancelled by this Will. At the material time, the deceased was admittedly under treatment and remained admitted in different hospitals, and was not attended to by any of the parties to the suit. It is also pleaded by and sought to be proved by producing DW-1 Dr. Kailash Nath Sood that he had also found closed envelope in the belongings of his father Dr. Jagat Ram Sood wherein "The Will of late Sh. Roshan Lal Butail" was written. DW-1 on advice by S/Sh. K.D. Sood and Ajay Kumar Sood, Advocates, gave a notice Ex. DW-1/A dated 8.7.1985 to plaintiff No. 1 and defendant No. 1 through Mr. Ajay Kumar Sood, Advocate about the finding of such envelope containing the Will of the deceased, intimating therein that Dr. Jagat Ram was a close friend of the deceased, and the envelope containing such Will would be opened in the presence of plaintiff No. 1 and defendant No. 1. They were further requested to get due authority from the other two children of the deceased who were in USA or to furnish their addresses to the Advocate. In response to this notice, defendant No.l vide reply dated 22.7.1984, Ex. DW-l/B informed Mr. Ajay Kumar Sood, Advocate that the deceased had executed his last Will dated 18.10.1984, therefore, any other previous Will stood cancelled and he (defendant No. 1) was, in no way, interested with the Will in possession of DW-1. For the plaintiffs, Smt. Chander Kanta, sister of plaintiff No. 1 took delivery of the said envelope vide receipt Ex. DW-l/C dated 27.7.1985. There is no evidence on the record about the date of death of Dr. Jagat Ram, the date when he might have received the envelope from the deceased and the date when it was found by DW-1. Therefore, it cannot be concluded whether the contents of the envelope, if any, came into being before or after the date of execution of Ex. DW-5/A i.e. 18.10.1984. There is further no evidence as to whether such envelope in fact contained a Will or not or not because the plaintiffs case is that the said envelope was empty. This aspect of the matter is thus required to be kept in view while appreciating the evidence. 15. DW-5/A i.e. 18.10.1984. There is further no evidence as to whether such envelope in fact contained a Will or not or not because the plaintiffs case is that the said envelope was empty. This aspect of the matter is thus required to be kept in view while appreciating the evidence. 15. Now reverting back to the contentions of the parties on this issue, I proceed to examine the suspicious circumstances aforesaid on merits. Circumstance No. (i) 16. There is no dispute that the deceased was literate and thus capable of signing the documents. The Will Ex. DW-5/A is, however, stated to have been thumb-marked by him. The explanation given by DW-6 in this regard is that his father "has been signing papers till November/December 1983. Thereafter he did not sign any papers, documents and correspondence etc. but had been thumb marking the same." This explanation is belied not only by the evidence led by the plaintiffs but also by the defendants evidence on record. There is no dispute that the documents Exs. PW-3/B, PW-3/C and PW-5/B respectively dated 22.5.1984,3.7.1984 and 2.4.1984 relied upon and proved by the plaintiffs are signed by the deceased. Similarly the documents Exs. DW-5/A, DW-2/A and Mark B respectively dated 16.4.1984, 16.4.1984 and 25.5.1984 relied upon and produced by the defendants themselves are admittedly signed by the deceased. The dates of execution/signing of these documents by the deceased fully prove that he could sign the papers and documents even after November/December, 1983. Thus the explanation given for the defendants is incorrect. Therefore, the alleged thumb marking of Ex. DW-5/A by the deceased when he could sign, is a very strong suspicious circumstance against the due execution of the Will Ex. DW-5/A which the defendants have failed to satisfactorily explain. Circumstance No. (ii) 17. It is not disputed by the defendants that the deceased executed a special power of attorney dated 18.10.1984 in favour of defendant No. 1. On the contrary, defendants filed a copy thereof vide Sr. No. 16 of the "List of Documents under Order 7 Rule 13(1) CPC and also produced the original special power of attorney vide order dated 4.5.1987 (Part B of Court file). Evidently the Will Ex. DW-5/A and the said special power of attorney came into being on the same day i.e. 18.10.1984 and Mr. Ajit Ahuja, Advocate is a common witness of these two documents. Evidently the Will Ex. DW-5/A and the said special power of attorney came into being on the same day i.e. 18.10.1984 and Mr. Ajit Ahuja, Advocate is a common witness of these two documents. The special power of attorney admittedly came to be possessed by defendant No. 1 on being delivered to him, though he does not remember the date when he received it. Though as per the contents of Will Ex. DW-5/A, defendant No. 1 is the nominated executor of this Will but neither this Will was handed over to him despite opportunity nor he was informed about its execution. It was accidentally that he found it in the records of his father. The version thus casts a shadow of suspicion on the due execution of this Will. The suspicion is multiplied by the fact that defendant No.l admittedly was general power of attorney of the deceased and thus there was no reason to constitute him special power of attorney of the deceased. Why then this document which was executed on the same day when the Will was allegedly executed in the presence of one common witness came into being? There is no satisfactory explanation by the defendants and in the absence of such explanation, one of the legitimate inference can be that this document came into being only to show that the deceased was, on the relevant day, capable of executing the deeds and documents. If so, the suspicion about the due execution and genuineness of the Will Ex. DW-5/A is strengthened. Circumstance No. (iii) 18. It is apparent on a bare look on the photo copy of the special power of attorney and its original, that the original bears the stamps, stamps of and attestation by a Notary whereas it is not so in the copy. The plaintiff, however, cannot be permitted to take advantage of this circumstance for the simple reason that these documents were not put to the defendant (DW-6) with a view to get his explanation, if any, about the non-existence of photo prints of the stamps etc. on the photo copy. Circumstance No. (iv) 19. It is not disputed for the defendants that defendant No, 1 had filed the application dated 1.3.1985 Ex. DX to bring on record the legal representatives of the deceased in case No. 52/2 of 1984 before the Rent Controller, Shimla. on the photo copy. Circumstance No. (iv) 19. It is not disputed for the defendants that defendant No, 1 had filed the application dated 1.3.1985 Ex. DX to bring on record the legal representatives of the deceased in case No. 52/2 of 1984 before the Rent Controller, Shimla. In that application, the proposed legal representatives of the deceased are plaintiffs Nos. 2 and 3 and defendant No. 1. This application is supported by affidavit Ex. DY sworn by defendant No.1 who has further signed the Vakalatnama Ex. DZ. Similarly, in case No. 43/2 of 1984 he filed an application dated 26.2.1985 before the said Rent Controller to bring the aforesaid legal representatives on the record in place of the deceased and also filed Vakalatnama dated 26.2.1985 Ex. DZ-2 signed by him for self and as General Attorney of plaintiffs Nos. 2 and 3. These acts are sought to be explained by defendant No. 1 (DW-6) by stating that " I had submitted applications in two cases for bringing on record the legal representatives of my deceased father. These applications were submitted by me in the cases of Shri Khushi Lal and Ram Sarup. I filed these applications on my own behalf and on behalf of other legal heirs of my father. The witness voluntarily explained that he signed blank papers and handed over the same to the learned Counsel who due to some confusion filed application on my behalf and on behalf of other legal heirs which mistake was later on corrected. I have seen the original file case No. 2/2 of 1984, titled R.L. Butail v. Khushi Ram, and the application dated 1.3.1985 under Order 22 Rule 3 CPC supported by an affidavit. These were duly signed by me. The certified copy of the application, affidavit and power of attorney are Exts. DX, DY and DZ, respectively. Similar type of applications alongwith affidavits and power of attorney were submitted by me in another case titled Roshan Lal Butail v. Ram Sarup. The case of Ram Sarup was withdrawn by my lawyer, in my absence. The learned Counsel did so without my instructions. I do not know the outcome of case No. 52/2/84 titled Roshan Lal Butail v. Khushi Ram, in the Court of Rent Controller, Shimla. The case of Ram Sarup was withdrawn by my lawyer, in my absence. The learned Counsel did so without my instructions. I do not know the outcome of case No. 52/2/84 titled Roshan Lal Butail v. Khushi Ram, in the Court of Rent Controller, Shimla. It is incorrect to suggest that by the order of the Rent Controller, defendants 1 to 3 were brought on record as legal representatives of late Shri Roshan Lal Butail. I cannot remember when I had submitted the application for correcting the earlier application put in by me to bring on record the legal representatives of deceased, Shri Roshan Lal Butail. I also cannot give the approximate date for filing the application. I do not have any record with me pertaining to that application. I did not ask anything from my lawyer as to what happened to my applications. I cannot now say whether the application for correction of the earlier application preferred to bring on record the legal representatives was given in both cases. S/Sh. M.M. Vaid and Balwant Kukreja were my counsels in the aforesaid cases. The case of Shri Piare Lal Gupta has been decided. I cannot give even the approximate date of the decision of that case. I filed revision against that decision, but I cannot tell even the approximate date of the filing of the revision. My lawyer might be knowing. It is correct that Shri Balwant Kukreja was my counsel in the aforesaid case at the time of its decision. Ext. DW-5/A, the Will was found by me in the record of my father. I cannot give the approximate date, when this Will was found by me. I cannot tell even the approximate date when I found this Will after the death of my father. I did not inform defendants 2 and 3 in writing that the Will has been found by me. However, I orally informed them. I cannot give the approximate time when I informed them orally about the Will. I went to Delhi twice or thrice in between 6.10.1984 till the death of my father." 20. It is evident from the above quoted portion of the statement of DW-6 that he has parried to give answers to the material questions. However, I orally informed them. I cannot give the approximate time when I informed them orally about the Will. I went to Delhi twice or thrice in between 6.10.1984 till the death of my father." 20. It is evident from the above quoted portion of the statement of DW-6 that he has parried to give answers to the material questions. The result is that there is no evidence to prove that while filing the aforesaid applications he was not aware of the execution of and existence of the Will Ex. DW-5/A. In case he had no such knowledge at that time, he ought to have stated so on oath and prove it which he has failed to do. The counsel to whom he gave signed blank papers and who conducted the case has not been produced nor any other evidence has been led to corroborate the statement of DW-6. The fact remains that Vakalatnama Ex. DZ-2 was signed by defendant No. 1 for self and as general attorney of plaintiffs 2 and 3. In any case, if he was acting in good faith having no knowledge of Ex. DW-5/A, there is no explanation as to why plaintiff No. 1, admittedly widow of the deceased, was not proposed as one of the legal representatives in the said application. This, coupled with the admitted fact that he did not disclose in writing to the plaintiffs that the deceased had executed a Will Ex. DW-5/A and his remaining silent over the matter for a pretty long time, is yet another suspicious circumstance surrounding the Will Ex. DW-5/A which circumstance has also not been satisfactorily explained. Circumstance No. (v) 21. It is case of the defendants that after the death of the deceased, defendant No. 1 paid Rs. 30,000 each to plaintiff Nos. 2 and 3 by cheques Exs. PW-6/D and PW-6/E dated 15.12.1984 and also paid cash in the sum of Rs. 20,000 after settling the matter with them. However, from this, it cannot be inferred that these payments were made pursuant to the Will Ex.DW-5/A. The parties to this transaction admittedly are brothers and sister and heirs of the deceased. After the death of the deceased, their arriving on such settlement cannot be necessarily based on the contents of the Will Ex. DW-5/A. This circumstance, therefore, cannot be said to be a suspicious circumstance as claimed for the plaintiffs. After the death of the deceased, their arriving on such settlement cannot be necessarily based on the contents of the Will Ex. DW-5/A. This circumstance, therefore, cannot be said to be a suspicious circumstance as claimed for the plaintiffs. Circumstance No. (vi) 22. It is not in dispute that the deceased suffered first paralytic attack in 1971-72. In the cross-examination of DW-6, an attempt appears to have been made to show that the deceased was suffering from second stage of carcinoma presumably on the basis of the contents of the special power of attorney dated 18.10.1984 allegedly executed by the deceased in favour of defendant No. 1 and wherein there is reference to this fact. DW-6 has betrayed lack of knowledge in this regard. There is no cogent and reliable evidence on the record to hold that the deceased was suffering from second stage of carcinoma but it cannot be disputed even in view of the statement of DW-6 that the deceased remained admitted in the hospitals. In the words of DW-6 "It is correct that in September 1984 my father was admitted in Jeevan Nursing Home, Delhi. My father was shifted to Holly Family also after 2/3 months from Jeevan Nursing Home. I do not recollect whether my father was admitted in any nursing home in May 1984 also. "What clearly emerges from this statement is that in September 1984 the deceased was admitted in Jeevan Nursing Home. After 2 or 3 months, he was shifted from Jeevan Nursing Home to Holly Family. It simply means that on admission in Jeevan Nursing Home in September 1984 the deceased remained admitted there for two or three months and was then shifted to Holly Home. Taking into account the admitted period of admission of the deceased in Jeevan Nursing Home, he would have been shifted therefrom to Holly Home in the end of October, 1984 or November, 1984. Thus, at least during the months of September and October 1984 the deceased remained admitted in these nursing homes. There is no explanation whatsoever as to how the deceased could have executed the Will Ex. DW-5/A at his residence on 18.10.1984 when during this period he was admitted in the nursing homes. Therefore, this circumstance also is highly suspicious rendering the due execution of the Will Ex. DW-5/A as claimed by the defendants highly improbable. Circumstance No. (vii) 23. There is no explanation whatsoever as to how the deceased could have executed the Will Ex. DW-5/A at his residence on 18.10.1984 when during this period he was admitted in the nursing homes. Therefore, this circumstance also is highly suspicious rendering the due execution of the Will Ex. DW-5/A as claimed by the defendants highly improbable. Circumstance No. (vii) 23. On the face of it, the execution of Will Ex. DW-5/A appears to have been attested by DW-5 Ramakant Sachdeva and Mr. Ajit Ahuja, Advocate. The latter has not been produced. DW-5 has stated about the execution of the Will DW-5/A at the house of the deceased. Statement of DW-6 has already been discussed hereinabove from which it appears that on the date of alleged execution of the Will Ex. DW-5/A the deceased was admitted in the nursing home and thus he could not execute the Will at his house. This renders the statement of DW-5 as unacceptable and unreliable. There is yet another factor which makes it impossible to believe that the so called attesting witnesses of the Will are dis-interested witnesses. No doubt, when a person is to execute a document like Will he will seek assistance of near relations and persons of confidence. However, if such persons are doubted of any interest in the beneficiary, then their statements may have to be read with caution. The plaintiffs have cross-examined the material witnesses i.e. DW-5 and DW-6 in order to show that they are nearer in relation to defendants, than the other parties. They have shown ignorance of any relation with defendant No. 1. Their admission of relation, if made, could not be so adversely viewed as the manner in which they have replied the questions deserves to be viewed. DW-5 claims that his father and the deceased were close friends and he used to consider him as his uncle and they were on visiting terms. He has Stated that he is residing in Delhi since his childhood and has further stated as follows: "I do not know the name of the wife of Shri Butail. Nor I know the name of father-in-law of defendant No.l. The name of my wife is Mrs. Monika Sachdeva. Shri Dwarka Dass is my father-in-law. Shri Dwarka Dass had three brothers. One of them is Sh. K.D. Manaktala. But I do not know the names of the other two. Nor I know the name of father-in-law of defendant No.l. The name of my wife is Mrs. Monika Sachdeva. Shri Dwarka Dass is my father-in-law. Shri Dwarka Dass had three brothers. One of them is Sh. K.D. Manaktala. But I do not know the names of the other two. I am not related to Mrs. Savira Butail through any of my wifes relations. I do not know whether father of Smt. Savira Butail, wife of defendant No. 1, was the brother of late Sh. Dwarka Dass, my father-in-law. I had met Shri Ajit Ahuja, Advocate, for the first time at the house of Sh. Butail on the abovesaid date. Earlier I neither knew him personally nor had any professional dealings nor in any way I was acquainted with him. I only knew Sh. K.D. Manaktala, brother of my father-in-law, but I did not know any other relation of my father-in-law. I casually attended the marriages of my wifes relatives. From the talk which transpired between Shri Ajit Ahuja, Advocate and late Shri Butail (executant), I did not get any indication that said Shri Ahuja was in any way related to Mrs. Madan Butail, wife of defendant No. 1. I alongwith my father used to visit Shri R.L. Butail once after every 4 or 5 months. However, my father was a frequent visitor to that place. I do not know the background as to how close friendship developed in between my father and late Sh. Butail. But they were fast friends since my childhood. I do not not know where Shri R.L. Butail used to reside at Shimla. I also do not know telephone number of Shri R.L. Butail in the year 1983 at his residence located at Delhi. Excepting late Shri Butail, I do not know any other member of his family. Shri R.L. Butail as far as I know was staying for more than 30 years in Greater Kailash before his death. Shri Butail also used to visit us, but he had left visiting us for about ten years prior to his death. Shri R.L. Butail became paralytic since the year 1977-78. He used to move a little in the initial stage, but became totally confined to bed either in 1981 or in 1982. I do not remember whether said Shri R.L. Butail was or not admitted in any hospital in Delhi in September, 1984. Shri R.L. Butail became paralytic since the year 1977-78. He used to move a little in the initial stage, but became totally confined to bed either in 1981 or in 1982. I do not remember whether said Shri R.L. Butail was or not admitted in any hospital in Delhi in September, 1984. Nor I know whether he remained admitted in any hospital in the month of October 1984. As far as I remember, Shri Butail expired at his residence in Delhi in December 1984. I did not participate in his funeral procession nor in any other ceremony pertaining thereto like UTHALA. I also do not know defendant No. 1 Shri Madan Lal Butail. He contacted me for the first time one or 1-1/2 years back in connection with this case. My wife is not related to Shri Ajit Ahuja. My father had attended the funeral procession of late Shri R.L. Butail. On 18th October, 1984, when I visited Shri R.L. Butails house in Greater Kailash, I found one young boy and a nurse in addition to that of the maid servant at his residence. I cannot state the names of the said persons, However, the maid servant used to be called as Amma. I always met him at his residence. I have never signed any other document till date as a witness." 24. There are certain apparent improbabilities in the above statement of this witness. He knows the deceased but none of his other family members. His father-in-law has four brothers but he is not aware of the names of two of them. He is not even in a position to deny that father of the wife of defendant No. 1 is brother of his father-in-law. Despite claiming to be on visiting terms with the deceased, he is unaware whether the deceased ever remained admitted in any hospital due to his ailment. He is wrong when he states that the deceased was residing in Delhi for more than 30 years before his death in view of the statement of DW-3. He is wrong when he states that the deceased became paralytic since 1977-78 in view of the statement of DW-6. According to him the deceased was bed ridden whereas according to DW-6, he was not so. 25. He is wrong when he states that the deceased became paralytic since 1977-78 in view of the statement of DW-6. According to him the deceased was bed ridden whereas according to DW-6, he was not so. 25. Similarly DW-6 states as follows: "I had not met DW-5 Shri Ramakant prior to the date when I contacted him for giving evidence in the case, as has already been stated by me. Ramakants father had been visiting my father. I had been seeing Ramakants father visiting my father since 1975. Shri Shiv Dayal Arora is my father-in-law. I do not know how many brothers my father-in-law have. I do not know the close relations of my wife, such as, her paternal uncles, maternal uncles and her mothers sisters. I never participated in any marriage or other functions celebrated in the families of the aforesaid relations of my wife. I do not know if Mohini is the wife of DW-5, Shri Ramakant. It is incorrect to suggest that Mohini is the daughter of my wifes paternal uncle, Shri Dwarka Dass. I do not know whether S/Shri Dawarka Dass and K.L. Manaktala are the brothers of my father-in-law, Shri Shiv Dayal. I have met Shri Ajit Ahuja about 1-1/2 years back. Before that I never met him. He is not related to my wife. I do not know any Savitri Devi wife of Gajinder Nath. Shri Gajinder Nath Ahuja was not my wifes sisters husband (Sandu). I do not know whether he had died on 14th April, 1994. I do not know where Shri Ajit Ahuja was residing. My wife has two brothers and two sisters. The brothers are Raj Arora and Surinder Arora and sisters are Smt Suniti and Sadhana. Smt. Suniti had expired while Sadhna is alive. It is incorrect to suggest that the third sister of my wife was Smt. Savitri Devi whose son is Ajit Ahuja." 25. This witness is also feigning ignorance instead of denial of any relationships as suggested. It is improbable that a son-in-law will not know the brothers of his father-in-law and the close relatives of his wife. The manner in which these witnesses have answered the questions, particularly not specifically denying the suggestions, creates doubt about their truthfulness on this count. This witness is also feigning ignorance instead of denial of any relationships as suggested. It is improbable that a son-in-law will not know the brothers of his father-in-law and the close relatives of his wife. The manner in which these witnesses have answered the questions, particularly not specifically denying the suggestions, creates doubt about their truthfulness on this count. In any case, as already concluded in view of the statement of DW-6, it is not probable that the deceased was present in his house on 18.10.1984, their statements regarding lawful execution of Will Ex. DW-5/A cannot be accepted and relied upon. 26. As seen above, the suspicious circumstances Nos. (i), (ii), (iv), (vi) and (vii) have not been satisfactorily explained by the propounder of the Will Ex. DW-5/A. Therefore, the case law as laid down in Gun Prakash and another v. Bhola Nath (AIR 1997 HP 27) and Deep Ram and others v. Laxmi Nand and others (2000 (1) SLJ 754) and relied upon for the defendants is not applicable to the present case as the facts and circumstances therein and in this case are quite distinguishable, inasmuch as the alleged suspicious circumstances therein were different from those in this case and incapable of demolishing the genuineness of the Wills, subject matter of the said cases. On the contrary, the factum of valid execution of a Will cannot be determined merely by considering the evidence produced by the propounder, but it is open to the Court to look into surrounding circumstances and inherent improbabilities of the case to reach at a proper and just conclusion. Once suspicious circumstances surrounding the execution of the Will are noticed, and not satisfactorily explained by the propounder, the irresistible conclusion will be that the Will is not genuine and valid. 27. As a result of the fore-going discussions, it is held that the defendants have failed to prove that deceased executed a legal and valid Will on 18.10.1984 in favour of the defendants. This issue is accordingly decided against the defendants. Issue No. 1 28. The properties in suit are as specified in para 3 of the plaint. According to the plaintiffs, two of such properties viz. This issue is accordingly decided against the defendants. Issue No. 1 28. The properties in suit are as specified in para 3 of the plaint. According to the plaintiffs, two of such properties viz. (i) Plots in Pragpur and (ii) 99/3 New Butail Building, Shimla are "ancestral joint family properties" and were coparcenery properties in the hands of deceased and as per Mitakshra School of Hindu Law as applicable to the parties, all male members got share by birth and the third property viz. House No. S-340, Greater Kailash, Part I, New Delhi, was self acquired property of said Roshan Lal. In reply to para 3 of the plaint, the defendants in their written statement have not specifically denied the above claim of the plaintiffs but in para 5 of the written statement it has been denied "that there there was any alleged joint family coparcenery property situated at Shimla and Pragpur" and existence of any "joint family coparcenery" has been denied and it has specifically been denied that the properties in the hands of the deceased were "coparcenery properties". It is, however, not disputed that the house in Delhi is self acquired property of the deceased. Therefore, even in view of the pleadings of the parties, there is no dispute that the house in Delhi is the self acquired property of the deceased, therefore, not ancestral property. 29. Defendant No. 1 (DW-6) in his statement has stated that "the properties situate in Shimla and Pragpur were not self acquired properties of my father. He inherited these properties from my grand-father." In view of this clear and unambiguous statement of defendant No. 1 himself, there is no escape from the conclusion that the properties at Shimla and Pragpur were ancestral properties in the hands of the deceased. 30. The relationship inter se the parties is not in dispute. It is not the case of either of the parties that any partition ever took place between them or the properties in suit were ever partitioned. 31. In view of the above discussion, it is held that out of the properties in suit, the properties in Shimla and Pragpur were joint ancestral properties and the house in Delhi was the self acquired property of the deceased and after his death, these properties are now joint ancestral properties in the hands of the legal heirs of the deceased. In view of the above discussion, it is held that out of the properties in suit, the properties in Shimla and Pragpur were joint ancestral properties and the house in Delhi was the self acquired property of the deceased and after his death, these properties are now joint ancestral properties in the hands of the legal heirs of the deceased. This issue is accordingly decided in favour of the plaintiffs. Issue No. 2 32. The property in suit has already been held joint Hindu family property. The relationship inter-se the parties is not in dispute. There is no dispute that during the life time of the deceased, the parties to the suit and the deceased constituted a joint Hindu family. There is no pleading or evidence that after the death of the deceased, there was any partition between the parties. Even otherwise, the presumption is that a joint Hindu family continues to be joint unless the contrary is proved. It is also established on record and not disputed that plaintiff No. 1 and defendant No. 1 are in actual possession of the suit properties though the property at Pragpur is not in the actual use at present. Being members of a joint Hindu family and there being no partition or ouster of any member of the family, the possession of plaintiff No. 1 and defendant No. 1 over the suit property is for and on behalf of all the members of the family. It is though the case of the defendants that plaintiff No. 1 had deserted the deceased during his life time and plaintiffs Nos. 2 and 3 are living abroad since long but this does not legally mean that they had separated from the joint family or stood ousted from the suit property so as to say that they have ceased to have any right in the joint family properties in suit. 33. In view of the above, it is held that the parties are in joint possession of the suit properties, as members of an undivided joint Hindu family. This issue is accordingly decided in favour of the plaintiffs. Issue No. 4 34. Since the findings on this issue will have direct bearing on issue No. 3, therefore, taken up first for decision. 35. This issue is accordingly decided in favour of the plaintiffs. Issue No. 4 34. Since the findings on this issue will have direct bearing on issue No. 3, therefore, taken up first for decision. 35. PW-1 has stated that some part of the suit property is let out to the tenants and defendant No. 1 is realising rents and profits from the suit properties. She has further stated that the deceased had bank accounts in the State Bank of India, Greater Kailash, Part I Branch, New Delhi, the Central Bank of India, Greater Kailash, Part I, New Delhi and National Grindleys Bank, Shimla and had also hired lookers in aforesaid Central Bank of India and State Bank of India, Parliament Street, New Delhi. Defendant No. 1 (DW-1) has admitted in his statement that the deceased was holding bank accounts in different banks and that the deceased had hired two lockers also. He has not specifically denied that he is receiving the rents/benefits from the suit property. It is admitted by him that after the death of his father he had been making various payments on account of estate duty out of the bank accounts of the deceased. He has admittedly dealt with the tenants by filing eviction petitions and execution petitions against them. Further, he had admittedly paid some money to plaintiffs 2 and 3 also after the death of the deceased. Thus he has evidently been dealing with the income from the suit property, thereby defendant No. 1 has rendered himself liable to account for the money lying deposited in the bank accounts of the deceased at the time of his death and the income by way of rents and profits of the suit property. 36. It may be pointed out that defendant No. 1 has been dealing with the accounts/tenants etc. of the deceased, even during his life time. But he is not liable to render the accounts of his dealings during the life time of the deceased. However, he is liable to render such accounts for the period after the death of the deceased. 37. In view of the above discussion, it is held that defendant No. 1 has collected the rents and profits of the suit property and had dealt with the bank accounts of the deceased and is, therefore, liable to account for the same as aforesaid. 37. In view of the above discussion, it is held that defendant No. 1 has collected the rents and profits of the suit property and had dealt with the bank accounts of the deceased and is, therefore, liable to account for the same as aforesaid. This issue is accordingly decided in favour of the plaintiffs. Issue No. 3 38. The plaintiffs want to enjoy their shares in the suit property separately after partition thereof. In view of the findings on issue Nos. 1, 2 and 7, the suit properties are liable to be partitioned. In view of the findings on issue No. 4, the plaintiffs are entitled for a decree for rendition of accounts also. 39. The most material aspect of the issue, however, is as to what are the shares of the parties in the suit property. Since the Will propounded by the defendants has already been held to be not legal and valid Will, therefore, the shares of the parties in the suit will have to be ascertained in accordance with the law applicable to a case of intestate succession. The property at Delhi is the self acquired property of the deceased. Therefore, succession thereto and shares of the parties therein shall be governed by the provisions of Sections 8, 9 and 10 of the Hindu Succession Act (hereinafter referred to as "the Act"). 40. Since the plaintiffs and defendant No. 1, are widow, sons and daughter of the deceased, therefore, in view of the provisions of Section 8(a) of the Act, the property at Delhi shall devolve on them. In view of the provisions of Section 9 of the Act, they shall take this property simultaneously and to the exclusion of class II heirs. As per the provisions of Section 10, each of them shall take one share. Therefore, the plaintiffs and defendant No. 1 are entitled to l/4th share each in the property at Delhi. 41. In so far as the properties in Shimla and Pragpur are concerned, these have already been held ancestral properties. 42. It is well settled that the share which a coparcener obtains on partition of ancestral property, is ancestral property as regards his male issues. They take an interest in it by birth. 41. In so far as the properties in Shimla and Pragpur are concerned, these have already been held ancestral properties. 42. It is well settled that the share which a coparcener obtains on partition of ancestral property, is ancestral property as regards his male issues. They take an interest in it by birth. However, in so far as heirs other than the male issues are concerned, it is separate property and on the death of the holder, having no male issue, it will devolve on his other heirs by succession under Section 8 of the Act. Since the deceased had left behind male issues (sons) also, therefore, intestate succession to and shares in the properties in Shimla and Pragpur shall be governed by Section 6 of the Act. 43. Section 6 of the Act reads as follows : "6. Devolution of interest in coparcenary property.— When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in Class I of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.—For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2.—Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein." 44. When the proviso and Explanation 1 of Section 6 supra are read together, apparently, it is difficult to reconcile them in a manner which may admit of logically consistent answers and is bound to result in anomolous situations and varying consequences. When the proviso and Explanation 1 of Section 6 supra are read together, apparently, it is difficult to reconcile them in a manner which may admit of logically consistent answers and is bound to result in anomolous situations and varying consequences. However, the Honble Supreme Court in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others (AIR 1978 Supreme Court 1239) has interpreted and harmonised these provisions and has held as follows : "Before considering the implications of Explanation 1, it is necessary to remember that what Section 6 deals with is devolution of the interest which a male Hindu has in a Mitakshara coparcenary property at the time of his death. Since Explanation 1 is intended to be explanatory of the provisions contained in the Section, what the Explanation provides has to be correlated to the subject-matter which the section itself deals with. In the instant case the plaintiffs suit, based as it is on the provisions of Section 6, is essentially a claim to obtain a share in the interest which her husband had at the time of his death in the coparcenary to property. Two things become necessary to determine for the purpose of giving relief to the plaintiff; One, her share in her husbands share and two her husbands own share in the coparcenary property. The proviso to Section 6 contains the formula for fixing the share of the claimant while Explanation I contains a formula for deducing the share of the deceased. The plaintiffs share, by the application of the proviso, has to be determined according to the terms of the testamentary instrument, if any, made by the deceased and since there is none in the instant case, by the application of the rules of intestate succession contained in Sections 8, 9 and 10 of the Hindu Succession Act. The deceased Khandappa died leaving behind him two sons, three daughters and a widow. Two sons, daughter and widow are mentioned as heirs of Class I of the Schedule and, therefore, by reason of the provisions of Section 8(a) read with the 1st clause of Section 9, they take simultaneously and to the exclusion of other heirs. As between them the two sons, the three daughters and the widow will take equally, each having one share in the deceaseds property under Section 10 read with Rules 1 and 2 of that section. As between them the two sons, the three daughters and the widow will take equally, each having one share in the deceaseds property under Section 10 read with Rules 1 and 2 of that section. Thus, whatever be the share of the deceased in the coparcenary property since there are six sharers in that property each having an equal share, the plaintiffs share therein will be l/6th. The next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all, the plaintiff has l/6th interest in that share. Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mitakshara coparcener shall be deemed to be the sharer in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. One must, therefore, imagine a state of affairs, in which a little prior to Khandappas death, a partition of the coparcenary property was effected between him and other members of the coparcenary. Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son, (See Mullas Hindu Law, Fourteenth Edition, page 403, para 315). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenary property, the fourth being Khandappas wife, the plaintiff. Khandappa would have therefore got a l/4th share in the coparcenary property on the hypothesis of a partition between N himself and his sons. Two things are thus clear; one, that in a partition of the coparcenary property Khandappa would have obtained a l/4th share and two, that the share of the plaintiff in the l/4th share is l/6th, that is to say, l/24th. So far there is no difficulty. The question which poses a somewhat difficult problem is whether the plaintiffs share in the coparcenary property is only l/24th or whether it is l/4th plus l/24th, that is to say, 7/24th. The learned trial Judge, relying upon the decision in Shiramabai, AIR 1964 Bom. So far there is no difficulty. The question which poses a somewhat difficult problem is whether the plaintiffs share in the coparcenary property is only l/24th or whether it is l/4th plus l/24th, that is to say, 7/24th. The learned trial Judge, relying upon the decision in Shiramabai, AIR 1964 Bom. 263, which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred." Further held : "In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimants share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit ones imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenery property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition. The interpretation which we are placing upon the provisions of Section 6, its proviso and Explanation 1 thereto will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively. The Hindu Law of Inheritance (Amendment) Act, 1929 conferred heirship rights on the sons daughter, daughters daughter and sister in all areas where the Mitakshara law prevailed. Section 3, Hindu Womens Right to Property Act, 1937, speaking broadly conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family. The Hindu Succession Act, 1956 provides by Section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as a full owner thereof and not as a limited owner. By restricting the operation of the fiction created by Explanation I in the manner suggested by the appellant, we shall be taking a retrograde step, putting back as it were the clock of social reform which has enabled the Hindu woman to acquire an equal status with males in matters of property. Even assuming that two interpretations of Explanation I are reasonably possible, we must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years." 45. Even assuming that two interpretations of Explanation I are reasonably possible, we must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years." 45. In case G. V. Kishan Rao v. State of Andhra Pradesh, (AIR 1987 Andhra Pradesh 239), after taking into account Gurupads case (supra) and other decisions and provisions of the Act relevant to the subject, the Andhra Pradesh High Court held as follows: "15. From the foregoing, the emerging principle is that in a Mitakshara coparcenary property, irrespective of regional barriers, where-ever the Mitakshara is holding the field, when a male Hindu dies after the commencement of the Hindu Succession Act having at the time of his death an interest in a Mitakshara Coparcenary property, his interest in the property shall devolve by testamentary or intestate succession, as the case may be, and not by survivorship, if the deceased had left him surviving a female relative specified in Class I of the Schedule to the said Act. 16. Hence, Satyamma who is the widow of the late Gunde Rao will be entitled at first to a share equivalent to that of her each son. This is on the basis that just before the demise of her husband, if property is partitioned, it will be into five equal shares and so her husband, herself and three sons will be entitled to each l/5th share. Therefore, by fictional partition, she would be entitled to l/5th share as though partition has been effected between her husband and the three sons. Then she would again be entitled to 1 /6th share out of 1 /5th share of her late husband and, therefore, she will be entitled to 7/30th share." 46. In view of the above settled position in law and the findings on issue No. 4, it is held that the plaintiffs are entitled to a decree of partition and rendition of accounts and plaintiffs and defendant No. 1 shall be entitled to l/4th share each in the self acquired building of the deceased in Delhi and in the ancestral properties in Shimla and Pragpur, plaintiffs Nos. 1 and 2 and defendant No. 1 are entitled to 5/16th share each and plaintiff No. 3 shall be entitled to l/16th share. This issue is accordingly decided. Issue No. 5 47. 1 and 2 and defendant No. 1 are entitled to 5/16th share each and plaintiff No. 3 shall be entitled to l/16th share. This issue is accordingly decided. Issue No. 5 47. According to the plaintiffs, golden ornaments, the Istridhan of plaintiff No. 1 is lying deposited in the lockers of the bank taken by the deceased and such ornaments are 5/6 gold rings, two pairs of gold ear rings two pairs of gold buttons having 4 gold buttons in gold chain, 4 gold bangles and a gold chain as averred in the plaint. The defendants in their written statement has denied the existence of these ornaments in locker. PW-1, in her statement, has supported this version though the description of some of such ornaments as in the statement is not the same as in the plaint. It is further admitted by her that she had stated about the ornaments only on the basis of memory. It is also not in dispute that she was in service and in this connection remained posted at stations other than the place where the deceased was residing. She is now not in possession of any record to give correct details/description of the ornaments. What renders the claim about the ornaments as highly suspicious is the fact that in the initial plaint dated 21.7.1986, the particulars of the ornaments alleged to be kept in the locker were not given. This plaintiff filed amended plaint dated 6.5.1990. The particulars of ornaments were, for the first time, given in this plaint. Admittedly, plaintiff No. 1 has no record of these ornaments, then from where the description was given in the amended plaint after about 4 years of the institution of the suit is not explained. Vide replication dated 7.4.1999, plaintiffs have averred that the ornaments which plaintiff No. 1 received from her parents at the time of marriage were never made available to her and were kept in the locker and the plaintiffs "suppose" that they are lying in the locker. Be it stated that at the time of marriage between the deceased and plaintiff No. 1, when these ornaments are alleged to have been received by plaintiff No. 1 from her parents and retained by the deceased, the latter was residing in Shimla and even thereafter resided in Shimla, for considerable time and thus had no locker in Delhi. Be it stated that at the time of marriage between the deceased and plaintiff No. 1, when these ornaments are alleged to have been received by plaintiff No. 1 from her parents and retained by the deceased, the latter was residing in Shimla and even thereafter resided in Shimla, for considerable time and thus had no locker in Delhi. Simply because the plaintiffs "suppose" that the alleged ornaments are lying in the locker, it cannot be held that such ornaments are in existence and are in any locker. It is more so in view of the statement of DW-6 who had opened the locker and found no ornaments therein. Instead, he found a list of jewellery and newspapers kept therein. As per the contents of such newspapers, the deceased through his advocate had given notice disinheriting the plaintiff No. 1. Thus, there is no cogent and reliable evidence on the record to prove that the alleged Istridhan of plaintiff No. 1 is in a locker operated by defendants or in possession of the defendants. 48. In view of the above discussion, I hold that the plaintiffs have failed to prove that the Istridhan of plaintiff No. 1 is in the locker of the deceased or with defendant No. 1. This issue is accordingly held in the negative. Issue No. 6 49. Having failed to prove issue No. 5 above, the plaintiff No. 1 is not entitled to a decree for mandatory injunction as prayed for. This issue is thus held against the plaintiffs. Issue No. 8 50. This issue is based on the preliminary objection in the written statement that the plaintiffs have no right, title or interest in the suit property, therefore, they ought to have sued for declaration of their rights and since they are not in possession of the property in suit, therefore, the suit is not maintainable in the present from and it was contended so for the defendants. However, in view of the findings already recorded on issue Nos. 1 to 4 and 7 heretofore, the objection and contention cannot be sustained. It is, therefore, held that there is nothing wrong in the form of the suit which may render it not maintainable or not competent. This issue is accordingly held against the defendants. Issue No. 9 51. The plaintiffs have claimed three reliefs in this suit. 1 to 4 and 7 heretofore, the objection and contention cannot be sustained. It is, therefore, held that there is nothing wrong in the form of the suit which may render it not maintainable or not competent. This issue is accordingly held against the defendants. Issue No. 9 51. The plaintiffs have claimed three reliefs in this suit. There cannot be any dispute that when more than one separate reliefs have been claimed in a suit, each relief has to be valued separately and the same has been done in this case. 52. The relief for partition of joint Hindu family property has been valued at Rs. 6 lacs for the purpose of jurisdiction and a Court fee of Rs. 19.5 p. has been affixed. The valuation of the suit in a case of partition brought by a person in joint possession of the property, as the plaintiffs have already been held, will be the value of their share. The plaintiffs have put such value at Rs. 6 lacs which does not seem to be unreasonable. 53. A suit for partition of joint Hindu family properties by a member(s) of such family is governed for the purpose of Court fee by clause (vi) of article 13 of Schedule II of the H.P. Court Fee Act and not by Section 7(iv) (g) of that Act. Therefore, a fixed court fee of Rs. 19.5 paise is payable for the relief of partition as claimed herein and the same has duly been affixed. 54. The second relief prayed for in the suit is decree for rendition of accounts which has been valued at Rs. 5,000 and ad valorem court fee thereon has been paid. The valuation of a suit for rendition of accounts for the purposes of court fee and jurisdiction must be the same. The value of such suit for the purposes of Court fee is governed by Section 7(iv) (e) of the H.P. Court Fees Act according to which such value will be the amount at which the relief sought is valued in the plaint. The relief for rendition of accounts, as already stated, has been valued in the plaint at Rs. 5,000 and the same will be the value and has been stated to be so for the purpose of jurisdiction. Thus this relief has also been properly valued for the purposes of Court fee and jurisdiction. 55. The relief for rendition of accounts, as already stated, has been valued in the plaint at Rs. 5,000 and the same will be the value and has been stated to be so for the purpose of jurisdiction. Thus this relief has also been properly valued for the purposes of Court fee and jurisdiction. 55. The third relief claimed in the suit is mandatory injunction which has been valued at Rs. 200 for the purposes of Court fee and jurisdiction. The valuation of relief of injunction for the purposes of jurisdiction is governed by Section 8 of the Suits Valuation Act. Therefore, the value for the purposes of jurisdiction and Court fee will be the same. Valuation of relief of injunction is governed by Section 7(iv) (d) which provides that such value will be the amount at which the plaintiff has valued the relief. Thus this relief has also been properly valued. 56. The defendants on whom the burden of proving this issue lies, have not led any evidence to show that the value for the suit for the purposes of jurisdiction and/or Court fee is something other than the valuation made by the plaintiffs. 57. As a result, it is held that defendants have failed to prove that the suit is not properly valued for the purposes of Court fee and jurisdiction. This issue is accordingly decided against the defendants. Issue No. 10 58. Rule 15 of the Order VI CPC which provides for verification of pleadings reads as under: "Verification of pleadings.—(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." 59. The above provisions provide the mode of verifying the pleadings, the object being to fix responsibility for the statements the pleadings contain on the person verifying the same. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." 59. The above provisions provide the mode of verifying the pleadings, the object being to fix responsibility for the statements the pleadings contain on the person verifying the same. What is required is that (i) the pleading must be verified at the foot, by the party or one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case (ii) the verification must specify with reference to the paras of the pleading as to which contents are verified on the basis of personal knowledge of the person verifying and which are verified on the basis of information received and believed to be true and (iii) it must be signed by the person making it, and the time and place of signing it must be stated. 60. In the case in hand, the plaint is verified by plaintiff No. 1 and ail the aforesaid requirements are duly complied with. It is, therefore, held that the defendants have failed to prove that the plaint has not been verified in accordance with law. This issue is, therefore, held against the defendants. Issue No. 11 61. The case of the defendants is that plaintiff No. 1 had deserted the deceased during his life time and was not concerned with his affairs and properties and even did not care for him in his illness and plaintiffs 2 and 3 who are residing abroad since long had also received money from defendant and settled the matter with him. It is so stated by defendant No. 1 (DW-6). The bare allegations of desertion of and dispassionate attitude towards the affairs of a husband and not to render services to him while ill, will not constitute estoppel so as to deprive a wife from inheriting his property. It is not explained as to what was the settlement arrived at between the plaintiff Nos. 2 and 3 and defendant No. 1 on payment of money. This vague statement also does not constitute estoppel. It is not explained as to what was the settlement arrived at between the plaintiff Nos. 2 and 3 and defendant No. 1 on payment of money. This vague statement also does not constitute estoppel. In fact, there is no specific and cogent evidence on the record to prove any act, conduct, deed or acquiescence on the part of the plaintiffs which may amount to estoppel so as to debar them from filing the present suit. 62. In view of the above, it is held that the defendants have failed to prove that the plaintiffs are estopped from filing the present suit by their act, conduct, deeds, acquiescence etc. This issue is accordingly held against the defendants. Issue No. 11-A 63. It was contended that initially the suit was filed by plaintiff No. 1 and plaintiffs Nos. %2 and 3 were arrayed as defendants 2 and 3. However, by transposition and amendment at later stages, the said defendants were transposed as plaintiff Nos. 2 and 3 and Amit Butail and Anuj Butail were added as defendants 2 and 3 without making suitable consequential amendments in the body of the plaint with the result that in the pleadings and in evidence there are mistaken references to the parties particularly plaintiffs 2 and 3 as defendants 2 and 3 whereas defendants 2 and 3 are now different persons. A perusal of the latest plaint does not reveal any such major confusion/contradiction. Plaintiff Nos. 2 and 3, however, have been referred to as defendant Nos. 2 and 3 in the evidence. It is so because at the time of recording of evidence, they were not transposed as plaintiff nor the present defendants 2 and 3 were arrayed as such defendants. However, when the evidence is read keeping in view the orders of transposition/addition of parties, particularly the dates thereof, there cannot be any confusion in reading the pleadings and the evidence. 64. The plaintiff Nos. 2 and 3 when arrayed as defendants 2 and 3 did not file any written statement to controvert the claim of the plaintiff. They did not cross-examine any of the witnesses examined during the period they remained arrayed as defendants. Thus no contradiction in the plaint has occurred by their transposition or otherwise. Since they have not supported the Will as defendants and by virtue of their transposition they came to challenge the Will in question. They did not cross-examine any of the witnesses examined during the period they remained arrayed as defendants. Thus no contradiction in the plaint has occurred by their transposition or otherwise. Since they have not supported the Will as defendants and by virtue of their transposition they came to challenge the Will in question. Therefore, this situation cannot be read to make the plaint mutually contradictory and destructive. 65. It was contended for the defendants that though the plaintiff has pleaded that the suit property was joint Hindu family ancestral property and coparcenary property but the particulars of joint Hindu family and coparcenary have not been given in the plaint. The contention deserves to be rejected in view of the contents of paras 1, 3, 5 and 6 of the plaint which contain sufficient averments in this regard. 66. In view of the above, it is held that the defendants have failed to prove that the plaint lacks material particulars and is mutually contradictory and destructive. This issue is accordingly decided against the defendants. Issue No. 11-B 67. It was contended for the defendants that on a joint reading of copy of plaint, Ex. DA, copy of written statement Ex. DB, copy of replication Ex. DC and a copy of judgment Ex. DD will reveal that the matter regarding power of attorney dated 14.12.1984 stood finally decided between the parties and this constitute res judicata to the extent of similar controversy in this suit. 68. Be it stated that in the earlier suit No. 118/1 of 1986 decided vide Ex. DD on 23/12.1987 by the learned Sub-Judge (3), Shimla, plaintiffs Nos. 2 and 3 and defendant No. 1 only were the parties and plaintiff No. 1 and defendants 2 and 3 were not parties therein. A bare perusal of the judgment Ex. DD reveals that none of the issues in this suit were directly or substantially in issue in the said suit. Therefore, the decision vide Ex. DD does not, in any manner, create bar of res judicata to this suit. Accordingly it is held that the present suit is not barred by res judicata, therefore, this issue is held against the defendants. Issue No. 12 (Relief) 69. Therefore, the decision vide Ex. DD does not, in any manner, create bar of res judicata to this suit. Accordingly it is held that the present suit is not barred by res judicata, therefore, this issue is held against the defendants. Issue No. 12 (Relief) 69. In view of the findings given above:— (A) A preliminary decree for partition of the following properties by metes and bounds as per shares specified hereinbelow, is granted in favour of the plaintiffs and against the defendants: (i) Three storeyed building known as Block No. 99/3, New Butail Building, Lower Bazar, Shimla; (ii) Plots of land at Pragpur, Tehsil Dehra, District Kangra; (iii) 2-1/2 storeyed house No. S-340, Greater Kailash Part I, New Delhi; and (iv) Moveable assets comprising of money as may be determined under (B) hereinbelow. In the properties at (i) and (ii) above, the plaintiff Nos. 1 and 2 and defendant No. 1 shall be entitled to 5/ 16th share each and plaintiff No. 3 shall be entitled to l/16th share. In the properties at (iii) and (iv) above the plaintiffs and defendant No.l shall be entitled to l/4th share each. (B) A preliminary decree for rendition of accounts as on the date of death of the deceased i.e. 4.12.1984 and thereafter by defendant No. 1 in respect of the Bank Accounts and lockers of the deceased except those which were jointly operated with him by person(s) other than defendant No. 1 and the rents and profits realised from the properties at (A) above is also passed in favour of the plaintiffs and against the defendants and the amount as may be found divisible shall be shared by the parties as provided hereinabove subject to making good the deficiency, if any, in Court fee. 70. It is further provided that the parties or anyone of them, may, if so advised, apply for appointment of a Local Commissioner or Commissioners as the case may be, to carry out the partition and rendition of accounts vide (A) and (B) above. (C) The suit in so far it claims the relief of mandatory injunction is dismissed. 71. In the facts and circumstances of the case, there is no order as to costs. Appeal partly allowed.