JUDGMENT AND ORDER : 1. The plaintiff-respondents, namely, Shri Jiban Poddar, Sri Srijan Poddar and Sri Bijan Poddar instituted the suit being Title Suit No. 80 of 2006 for cancellation of the registered instrument under Section 31 of the Specific Relief Act, 1963. The defendant No. 1, the respondent No. 1 herein and Smt. Jayanti Poddar (Banik), the defendant-respondent No. 2, resisted the suit by filing their written statement and the Pro-forma-defendants No. 3, 4 and 5, the proforma-respondents No. 5, 6 and 7 herein supported the case of the plaintiffs. 2. Heard Mr. S. Saha, learned counsel appearing for the defendant No. 2, the appellant as well as Mr. P. Chakraborty, learned counsel appearing for the plaintiff-respondents No. 1-3 and Mr. P. Saha, learned counsel appearing for the pro-forma-defendant respondents, namely, Smt Mira Banik, Smt Bina Banik and Smt Rina Banik. 3. The suit was instituted for cancellation of the instrument being the Partition Deed No. 1-5510 dated 20.05.2004, executed by the plaintiffs and the defendants No. 1-2 in respect of the schedule-A land in the plaint. 4. The said partition deed (Exhibit-1) has created rights in favour of the plaintiffs and the defendant No. 1, who had bequest over the land and in favour of the defendant No. 2, the appellant in this appeal who was given a part of the schedule-A land over which, the said partition deed dated 20.05.2004 was executed by separating the share with specific boundaries etc. 5. The suit was instituted for declaration that the said partition deed dated 20.05.2004 is liable to be declared cancelled as the said partition deed is voidable and it had created a reasonable apprehension that if the instrument is left outstanding, it may cause serious injury. 6. The father of the plaintiffs was the owner in possession of land measuring 2 kanis 17 gandas of Mouja Bishalgarh appertaining to Old Khatians No. 4242, 4243/3, comprised in Old C.S. Plots No. 7765, 7766, 7767, 7768, 7785, 7786, 7787, 7770, 7776 and 7775 corresponding to the new C.S. Plots No. 661, 6613, 6618, 6617, 6600, 6601, 6602, 6598, 6599, 6614, 6611, 6612. By the Will dated 16.03.2000, those properties were bequeathed by late Sudhir Chandra Poddar, father of the plaintiffs and the other defendants regulating succession favouring his 4(four) sons as stated. By the Will dated 16.03.2000, those properties were bequeathed by late Sudhir Chandra Poddar, father of the plaintiffs and the other defendants regulating succession favouring his 4(four) sons as stated. The daughters of Sudhir Chandra Poddar were not given any share of the said property by the said testament. 7. It is the admitted fact that after the testator died, there was attempt to have the Will probated but for non-prosecution, the said petition seeking the probate was dismissed. In the year 2000, the defendant No. 1 instituted one suit being T.S. No. 07 of 2003 for declaration that the Will and testament dated 16.03.2000 was executed when the testator was in a disposing state of mind. 8. Further, in the said suit it has been prayed that the plaintiffs and the defendant No. 1, [the 4 (four) sons of Sudhir Chandra Poddar] have acquired exclusive right, title and interest over the suit land by excluding the defendants Nos. 2 to 5 of that suit. The plaintiffs contested the said suit being T.S. No. 07 of 2003 and finally by the judgment and decree dated 25.06.2006, the suit was dismissed. Against the said judgment and decree dated 25.06.2006 an appeal being T.A. No. 28 of 2003 was filed in the Court of the District Judge which in the course of time was transferred to the Court of the Addl. District Judge, Court No. 3, West Tripura, Agartala. That appeal was also dismissed. In this regard, there is no dispute. 9. Thereafter, according to the plaintiffs, the said partition deed was prepared without making the property partitioned among the 4(four) sons of the testator in accordance with their share as declared by the said Will. Three sons, the plaintiff-respondents, filed the present suit seeking cancellation of the said partition deed under Section 31 of the Specific Relief Act as according to them the said registered instrument is voidable in the eye of law as the Will as executed by their father, Sudhir Chandra Poddar, since deceased, has regulated the right of inheritance and no stranger except the said 4(four) sons can have any right by any other instrument except by operation of the Will. 10. 10. The defendant No. 1, the respondent No. 4 and the defendant No. 2, the appellant, made their utmost attempt to reset that suit in order to, as it appears before this Court on scrutiny of records, protect the interest of the defendant No. 2-appellant as by means of the said partition deed, the defendant No. 2 did set a share of the suit land, as described in the Schedule-A. The 3 pro-forma-defendants supported the case of the plaintiffs, by contending that the registered partition deed shall be declared liable to be cancelled and be delivered up as be highly detrimental to the interest of the 4(four) sons and being contrary to the intention of the testator. 11. The trial court framed 4 issues and the relevant issues are as under: “(ii) Whether the defendant No. 3 to 5 are legal heirs after testamentary disposition under section 30 of the Hindu Succession Act, 1957. (iii) Whether partition deed No. 1-5510 dated 20.05.2004 was validly executed and registered?” 12. It is to be noted that by the said partition deed No. 1-5510 dated 20.05.2004, the suit property has been divided the respective share and has been shown in the distinct schedule with physical boundaries and area of land. No question has been raised in this regard and hence there is no necessity to go into further details of these aspects of the matter. The trial court while deciding the issue No. 2 and 3 as reproduced above, has finally come to the conclusion that: “The last Will of the deceased Sudhir Ch. Poddar was duly registered and in the said Will deceased Sudhir Ch. Poddar expressed his last desire and intention regarding his landed property i.e. the suit land and therefore, the parties to his suit have no other option but to file a Probate case for giving effect to the last Will of deceased Sudhir CH. Poddar. But it is found from the evidence on record and the exhibited documents that before obtaining any Probate of the last Will of the deceased Sudhir Ch. Poddar, parties to this suit executed a registered partition deed in respect of the land which is the subject matter of the last Will of deceased Sudhir Ch. Poddar. Poddar. But it is found from the evidence on record and the exhibited documents that before obtaining any Probate of the last Will of the deceased Sudhir Ch. Poddar, parties to this suit executed a registered partition deed in respect of the land which is the subject matter of the last Will of deceased Sudhir Ch. Poddar. The parties to this suit have no authority and legal right to execute any partition deed amongst themselves in respect of the suit land denying and disobeying the last Will of deceased Sudhir Ch. Poddar in spite of having knowledge regarding existence of such Will. Moreover, the partition deed has also not been executed as per law. Admittedly, deceased Sudhir Ch. Poddar left his four sons and four daughters behind him as his only survivors and legal heirs at the time of his death. But surprisingly the plaintiffs and the defendants No. 1 & 2 executed that deed of partition excluding three other daughters of deceased Sudhir Ch. Poddar. There is no doubt that the defendants No. 3 to 5 of this suit being the daughters of deceased Sudhir Ch. Poddar are the legal heirs of Sudhir Ch. Poddar. But, after the testamentary disposition (registered Will of deceased Sudhir Ch. Poddar) under section 30 of the Hindu Succession Act, 1956 made by the Sudhir Ch. Poddar (now deceased), the defendants No. 2 to 5 are not to be considered as legal heirs of deceased Sudhir Ch. Poddar so far as the suit property is concerned which is also the subject matter of last Will of deceased Sudhir Ch. Poddar. However, the defendant Nos. 3 to 5 will be considered as legal heirs of deceased Sudhir Ch. Poddar only for the other properties of deceased Sudhir Ch. Poddar, which are not included to this suit property.” (Emphasis added) 13. Based on this finding, the partition deed dated 20.05.2004 has been declared liable to be cancelled and it has been so cancelled and delivered up by directing the District Sub-Registrar, Sadar, Agartala to make necessary entry in the Registration Book showing that the partition deed dated 20.05.2004 has been cancelled by the court by the said judgment dated 07.04.2011. 14. The solitary question that calls for consideration of this Court is that after death of the testator whether the title of the property devolved to the plaintiffs and the defendant No. 1 or not? 14. The solitary question that calls for consideration of this Court is that after death of the testator whether the title of the property devolved to the plaintiffs and the defendant No. 1 or not? An ancillary question that may arise is that if the property is devolved to 4(four) sons, whether the 4(four) sons had the competence to transfer a part of the suit property from their share to their sister, the defendant No. 2, the appellant or not? These are the points formulated by this Court for disposal of this appeal. 15. There is no dispute as regards the execution of the Will, even the defendant No. 2, the appellant has admitted it. Though initially she had raised certain questions about the genuiness of the said Will. But from the scrutiny of the evidence it is found that she had not made any endeavour to prove that the Will was not genuine. 16. Apart that, she was one of the signatories in the partition deed dated 20.05.2004. Her execution of the partition deed waives her objections and it has to be deemed that she had admitted thereby that the 4(four) sons had the title over the joint property left by their father and which is the bequest in the Will. Unless the said partition deed appears to be entirely unlawful and it cannot be liable to be declared voidable. 17. Having considered depositions and the records as produced in the evidence, this Court is of the view that the finding as returned by the Civil Judge, Court No. 2, Agartala is completely erroneous as it has not considered that very vital aspect of the matter. If the persons, the plaintiffs and the defendant No. 1 in the suit had according to the said judgment dated 07.04.2011, the exclusive title of the property left by their father by virtue of the Will they became undoubtedly the joint owners of the said property. Then how can it be said that they are not competent to transfer a part of their property, the bequest in the Will to their one sister, the defendant No. 2, the appellant herein, such reasoning is fallacious. 18. The only doubt that has surfaced is that whether a stranger who does not have any title can be made the party in the partition deed or not? 18. The only doubt that has surfaced is that whether a stranger who does not have any title can be made the party in the partition deed or not? Apparently though it may appear that she cannot partake but the Apex Court in the celebrated decision of Kale and Others vs. Deputy Director of Consolidation and Others, AIR 1976 SC 807 has observed that in an unregistered partition deed, if the person who had the pre-requisite title in their favour can include a third party in the family arrangement for purpose of partition of the property and that has to be held valid. In view of that decision of the Apex Court, this Court is of the view that there is no legality in execution of the partition deed inasmuch as, the registered instrument by itself is a substantive instrument of transfer and as such, the judgment and decree as passed by the trial court which is under challenge in this appeal cannot be sustained and accordingly the same is interfered with and set aside. For the same reason, the suit is liable to be dismissed and accordingly it is dismissed. 19. In the result the appeal stands allowed to the extent that the defendant No. 2, the appellant, in terms of the partition deed dated 20.05.2004 would be the owner of a part of the suit property as described in the partition deed dated 20.05.2004. 20. Draw the decree accordingly. Send down the LCRs forthwith.