JUDGMENT S. Sankarasubban, J. 1. These two appeals arc preferred against the Judgment and Decree in O. S. No of 1986 of the Sub Court, Kozhikode. While A. S. No. 645 of 1992 is file by defendants 1 and 2, A. S. No. 740 of 1992 is filed by defendants 4 and 5 The facts of the case are as follows: 2. The suit was filed for partition. Plaintiff is one Cherote Bharathi, According to her, plaint A and B schedule properties belonged to late Cherote Peravakutty. He had three sons and two daughters. The daughter were through his second wife Cherote Sreedhari. According to the plaintiff Cherote Peravakutty executed a Will No. 36 of 1975 by which he excluded his two daughters, defendants 4 and 5 from inheritance. He made provision for payment of monthly allowance of Rs. 100 to his second wife during his lifetime and right of residence in the family house situated in item No. 1 of A schedule to his second wife and two daughters. He bequeathed his properties to his three sons, defendants 1 and 2 and late Sukumaran @ Soman, the husband of the plaintiff. Soman died on 2nd August 1976 and Peravakutty died on 20th October 1975. On the death of Peravakutty his son, Sukumaran took 1/3 share of the properties of Peravakutty. The Will executed by Peravakutty was not questioned by his daughters or his widow and it was acted upon in various proceedings. On the death of Sukumaran, the plaintiff became the full and absolute owner of 1/3 share in the properties of deceased Peravakutty and she was in possession as coowner. Sukumaran had no other heirs except the plaintiff. The plaintiff was remarried on 12th September 1979 and she is now living with her second husband, Sudhakaran. The plaintiff was not given her 1/3 share in the assets of deceased Peravakutty by defendants 1 and 2. Item No. 1 of plaint A schedule property is having an extent of 75 cents with a two storied residential building. Item Nos. 2 and 3 are non residential building in which deceased Peravakutty had tenancy right. The plaintiff and defendants 1 and 2 are entitled to get the properties. Item No. 4 is garden land acquired by deceased Peravakutty and now it belongs to the plaintiff and defendants 1 and 2 as coowners. Item Nos. 2 and 3 are non residential building in which deceased Peravakutty had tenancy right. The plaintiff and defendants 1 and 2 are entitled to get the properties. Item No. 4 is garden land acquired by deceased Peravakutty and now it belongs to the plaintiff and defendants 1 and 2 as coowners. Defendants 1 and 2 recognised the rights of the plaintiff. Defendants 1 and 2 hired out portion of item Nos. 2 and 3 of A schedule and movables therein to one Ibrahimkutty to run a hotel by name 'SAMCO' as licensee. There are several items of movables, furniture and vessels in item No. 2 and 3 belonging to the testator. Even though the plaintiff demanded for partition, defendants 1 and 2 did not turn up. Hence, the suit was filed. 3. Defendants 1 and 2 filed joint written statement. According to them, it is not correct to say that late Sukumaran took 1/3 share over the properties of late Peravakutty. They further denied that the business, viz, Hotel 'SAMCO' is liable to be partitioned. Late Sukumaran had no interest in the hotel business. The plaintiff married subsequent to the death of Soman. So, she ceased to become entitled to shares of deceased Soman. The plaintiff is not entitled to get any share over the plaint schedule properties. The plaintiff has no possession over the plaint schedule properties. One Subramanian had leasehold right over item 2 and the property was not obtained by Peravakutty as lease. The suit is bad for nor joinder of Subramanian. The movables, furniture and fittings were sold so as to discharge the liabilities of the plaintiff's husband and the amounts realised were utilised for discharging this liability. It is further stated that if the court finds that the properties are liable to be partitioned the house situated in item No. 1 of plaint A schedule property will be reserved in favour of defendants 1 and 2 since they are residing in the building. 4. Defendants 3 to 5 filed separate written statement. They contended that it is incorrect that Peravakutty executed Will. He had not executed any Will on 11th October 1975 or any other date. Peravakutty was not capable of executing any document understanding the tenor of the same. He was suffering from cancer and bedridden and not capable of exercising his mental faculties. He could not read and understand anything. They contended that it is incorrect that Peravakutty executed Will. He had not executed any Will on 11th October 1975 or any other date. Peravakutty was not capable of executing any document understanding the tenor of the same. He was suffering from cancer and bedridden and not capable of exercising his mental faculties. He could not read and understand anything. He could not sign the same. 5. On the basis of the above pleadings as many as 11 issues were raised. The court below found that the plaintiff did not lose her right on remarriage. It found that the properties are partible and rejected the right claimed by the defendants in the house. It also rejected the contentions raised by defendants 3 to 5. It is against that these two appeals are filed. 6. In A.S. No, 646 of 1992, two contentions were urged; (1) that the lower court was wrong in holding that the plaintiff was entitled to a share in the property and (2) that the lower court was wrong in holding that defendants 1 and 2 are not entitled to reside in A schedule property. So far as A.S. No. 740 of 1992 is concerned, the contention urged is that even though the defendants have denied the execution of the Will, this question has not been considered by the court below. We shall first consider the appeal, A. S. No. 645 of 1992. 7. The first question to be considered is whether the plaintiff is entitled to succeed to the estate of her husband, Soman. Soman was one of the sons of Peravakutty. Peravakutty died on 20th October 1975. Soman died on 2nd August 1976. It has come in evidence that the plaintiff remarried on 12th September 1979. 7. The first question to be considered is whether the plaintiff is entitled to succeed to the estate of her husband, Soman. Soman was one of the sons of Peravakutty. Peravakutty died on 20th October 1975. Soman died on 2nd August 1976. It has come in evidence that the plaintiff remarried on 12th September 1979. Learned Counsel for the appellants brought to our notice S.2 of the Hindu Widow's Remarriage Act, which says as follows: "All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any Will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same". The case of the plaintiff is that by virtue of S.2, the property inherited by the plaintiff from her husband ceased to be her property. Learned Counsel for the respondents brought to our notice S.24 of the Hindu Succession Act, which states thus: "Any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried." Learned Counsel submitted that by the introduction of S.24 of the Hindu Succession Act, S.2 of the Hindu Widow's Remarriage Act stands repealed and disqualification which was on the Hindu Widow's Remarriage Act had been taken away by S.24 of the Hindu Succession Act. In Mayane's Hindu Law 13th Edition, it is stated thus: "This section lays down a disqualification for succession, against (i) the widow of a predeceased son, (ii) the widow of a predeceased son of a predeceased son, (iii) the widow of a brother of a Hindu intestate, if such widow has remarried on the date when the succession opens. In Mayane's Hindu Law 13th Edition, it is stated thus: "This section lays down a disqualification for succession, against (i) the widow of a predeceased son, (ii) the widow of a predeceased son of a predeceased son, (iii) the widow of a brother of a Hindu intestate, if such widow has remarried on the date when the succession opens. In a case where, on the date when the succession opens, the said widow did not remarry she succeeds to the property and her remarriage thereafter will not divest her of the property as under S.14 she would have obtained absolute rights in the property so taken" wide Chanda v. KHubala AIR 1983 Patna 33 According to us, after coming into force of S.24 of the Hindu Succession Act, the earlier law ceased to exist. A perusal of the Hindu Succession Act shows that on the death of a person, his widow takes the property absolutely along with her sons and daughters. S.24 of the Hindu Succession Act is only against the types of persons, who are particularly mentioned in that section. We agree with the reasoning expressed in AIR 1983 Patna 33. Learned Counsel for the appellants brought to our notice a decision of the Supreme Court in Velamuri Venkata Sivaprasad v. Kothuri Venkateswarlu 2000 (2) SCC 139 and contended that in spite of S.14 of the Hindu Succession Act, S.2 of the Hindu Widow's Remarriage Act has no operation. A perusal of the facts of the case will show that the argument advanced by the Counsel cannot be accepted. There, the widow remarried even before S.14 of the Hindu Succession Act came into force. It was in such circumstances it was held that she lost her right on the basis of S.2 of the Hindu Widow's Remarriage Act, So far as this case is concerned, according to us, S.24 of the Hindu Succession Act applies and the plaintiff is entitled to succeed. 8. The next question is regarding the residence in the bouse in item No. 1 of A schedule. 8. The next question is regarding the residence in the bouse in item No. 1 of A schedule. S.23 of the Hindu Succession Act says as follows: "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 tin's 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". So far as this section is concerned, it will apply only if there is into state succession. In this case, the plaintiff has claimed succession on the basis of Will. If that be so, the lower court was correct in holding that S.23 of the Hindu Succession Act is not applicable to defendants 1 and 2. But if the succession is not on the basis of Will, then defendants 1 and 2 will be entitled to the benefit of S.23 of the Hindu Succession Act. 9. The next appeal is A.S. No. 740 of 1992. The only contention raised is that the lower court has not considered the contention regarding the validity of the Will. The finding of the lower court regarding on this aspect is that the defendants were not serious in challenging the Will. According to us, this approach of the court below is not correct. In the written statement filed by defendants 3 to 5, in paragraph 6, it is stated as follows: "The averment that on 11th October. 1975 Cherote Peravakutty had executed a Will and the same was registered as a document No. 36 of 1975 at the Sub Registry Office, West Hill is incorrect and baseless. To the best of their knowledge these defendants submit that Peravakutty had not executed any Will on 11th October 1975 or on any other date and there was no occasion for the same. The further averments relating to the recitals in the Will are also incorrect and false. The averment that the testator excluded his daughters namely 4th and 5th defendant is incorrect. The further averments relating to the recitals in the Will are also incorrect and false. The averment that the testator excluded his daughters namely 4th and 5th defendant is incorrect. These defendants beg to state that Peravakutty was not capable of executing any document understanding the tenor of the same, much less a Will. Peravakutty was suffering from cancer and he was bedridden and was in the penultimate stage of his life. Peravakutty was not capable of exercising his mental faculties in those days in which he is said to have executed the Will. He could not read or understand anything much less the recitals in a document of the variety that is the Will. Peravakutty could not have signed the same. . . .These defendants further submit that the impugned Will is only a sham document". In the nature of the pleadings, according to us, the court below should have raised the issue regarding the validity of the Will and considered the matter. Copy of the registered Will is produced as Ext. A-l. According to us, there has been no proper proof of the Will in this case. 10. In the above view of the matter, the appeals are disposed of as follows: The case is remanded to the lower court to frame issue regarding the validity of the Will and to give an opportunity to the parties to adduce evidence regarding the same and decide the issue whether the Will is valid or not. The other findings in the Judgment arc upheld except the finding regarding the building house in item No. 1 of A schedule. If the court below takes the view that the Will is not valid, then the contention of defendants I and 2 regarding residence in the building house should be considered again.