JUDGMENT : DEVAN RAMACHANDRAN, J. 1. In the labyrinth of the large amount of materials, documents, evidence and pleadings on record, is presented a riveting issue, as to whether the transfer of property under a Deed of Trust amounts to a “gift” under the provisions of Section 122 and 123 of the Transfer of Property Act. 2. The relevance of this issue in this appeal is that the claim of the plaintiffs for partition hinges upon the validity of a Deed of Trust executed by their father, as per which, many of his properties were transferred to a Trust for the beneficial enjoyment of the beneficiaries under it; and they assert that since the said Deed has not been attested in the manner in which a Deed of Gift is to be done under Section 123 of the Transfer of Property Act, it is invalid and void in law. They thus predicate that the properties in question are partible, notwithstanding the Deed of Trust. 3. The appellants in A.S. No. 692/1996 are the plaintiffs in O.S. No. 106/1993, which was filed by them seeking partition of the properties of deceased Sondi Shankara Narayana Bhat (hereinafter referred to as ‘Late Bhat’ for ease), while the cross-objectors are defendants 1 and 5, who are the siblings of the plaintiffs and they support them. 4. It is admitted on both sides that late Bhat had 21 items of properties - which were all scheduled along with the plaint - which he obtained as per a final decree in O.S. No. 11/1961, which was also a partition suit filed earlier by his two sons, namely defendants 3 and 4 herein and thus that they were exclusively owned and possessed by them. 5. The plaintiffs, who are the daughters of Bhat, say that he died on 26.05.1990 and therefore, that the succession to his properties opened on that day. The plaintiffs state that late Bhat had 7 children: two from his first wife and the remaining from his second wife; and further explaining that defendants 3 and 4 are his children from his first wife, while defendants 1, 2 and 5 are his children from the second wife. They thus prayed that the suit be decreed, granting them 1/7th share each over the plaint schedule properties. 6. They thus prayed that the suit be decreed, granting them 1/7th share each over the plaint schedule properties. 6. Before the Trial Court, the third defendant filed a written statement conceding that items 17 to 21 are partible but that they are outstanding in a litigation initiated by late Bhat against the Government, namely O.S. No. 8/1975. He then asserted that except these properties, none of the others are partible because six among them had been transferred by late Bhat during his life time to a Trust settled by him under the name “Durgalaya Trust” (for short ‘the Trust’) with its primary objectives being to obtain religious and charitable benefits of its beneficiaries, with himself, the 6th defendant - who is his own brother - and Sri. I.V. Bhat, Advocate as the Trustees. He further stated that the remaining properties, save items 17 to 21, are also not available for partition because late Bhat had also executed Ext.B22 Will on 05.08.1975, being the same date on which Ext.B1 Trust Deed was executed, bequeathing them to the Trust after his lifetime. The third defendant thus took a specific stand that except item Nos. 17 to 21 in the plaint schedule, no other properties are available for partition. 7. The 6th defendant, who is the brother of late Bhat, also filed a separate written statement, however, adopting all the contentions of the third defendant. 8. The Trial Court, on the basis of the pleadings available on record, framed the issues as under: “1. What are the properties available for partition? 2. Whether the suit properties are Trust properties and a valid Trust has been created by late Shankaranarayana Bhat? 3. Whether the will dated 5.8.1975 is true, genuine and valid? 4. Whether the suit is bad for non joinder of necessary parties? 5. Reliefs and order as to costs?” 9. The suit was, thereafter, taken to trial and the husband of the 2nd plaintiff was examined as PW-1, while the third defendant was examined as DW-1 and the 6th defendant as DW-2. Exts.A1 to A10 were marked on the side of the plaintiffs, while Exts.B1 to B25 series were marked on the side of the defendants. 10. The suit was, thereafter, taken to trial and the husband of the 2nd plaintiff was examined as PW-1, while the third defendant was examined as DW-1 and the 6th defendant as DW-2. Exts.A1 to A10 were marked on the side of the plaintiffs, while Exts.B1 to B25 series were marked on the side of the defendants. 10. After the trial was completed, the Trial Court analysed the evidence available, as also the depositions of the witnesses and dismissed the suit, finding that since both Exts.B1 Trust Deed and B22 Will are genuine, none of the properties are available for partition. 11. It is this judgment and decree which is now assailed before me by the plaintiffs in the afore appeal; while defendants 1 and 5, through their Cross-Objection, support the plaintiffs and also seek that the same be set aside. 12. I have heard Sri. T. Krishnanunni, learned senior counsel instructed by Sri. P.S. Appu, appearing for the appellants in A.S. No. 692/1996, Sri. Krishna Prasad appearing for the Cross-Objectors and Sri. P.B. Krishnan, learned counsel appearing for the 3rd defendant. 13. Since the Cross-Objectors are fully supporting the appellants and since they also impel the same contentions in their Cross-Objections, as are projected in the appeal, it is without doubt that my answers in the appeal will cover the said Cross-Objections also. I, therefore, proceed to first decide the appeal on its merits and to then deal with the Cross-Objections as a corollary. 14. Sri. T. Krishnanunni, learned senior counsel, opened his submissions assailing the validity of Ext.B1 Trust Deed, contending that it has not been legally attested and that the attestor therein, namely the 6th defendant, being a beneficiary under the Trust, could not have been a valid attestor and therefore that the said Deed ought not to have been accepted by the Trial Court as being a forensically acceptable document. The learned senior counsel, in substantiation of this contention, invited my attention to Section 6 of the Indian Trusts Act, 1882 - the Trust in question being admittedly a private Trust - and tried to impress upon me that the creation of a Trust postulates the transfer of property into the name of the Trustees and therefore, that it requires to be registered under the provisions of the Registration Act, thus making it analogous to the execution of a gift by the owner of the property. To reinforce this assertion, the learned senior counsel read to me Section 122 of the Transfer of Property Act, which defines a “gift” and submitted that when existing movable or immovable properties are transferred voluntarily and without consideration by one person to another in any manner, such transfer construes the character of gift and therefore, that all such transfers can be executed only in the manner as prescribed under Section 123 of the Transfer of Property Act. 15. The thrust of the submissions of Sri. Krishnanunni thus, is that for a Trust Deed to be valid in law, it has to be executed in the manner of a gift and consequently, that it has to be attested by at least two witnesses. After saying so, the learned senior counsel submits that in the case at hand, though there are two attesting witnesses to Ext.B1 Deed, namely, the 6th defendant and his son, the document loses its legal validity because the 6th defendant is a Trustee under the Trust Deed and therefore, being rendered incapable of subscribing his signature to the Trust Deed as an attesting witness. 16. After urging the afore contentions regarding the Trust Deed, the learned senior counsel then went on to submit that the execution of Ext.B22 Will is shrouded in secrecy and that it is vitiated by various suspicious circumstances. He submitted that, therefore, the Trial Court could not have accepted Ext.B22 to be a valid Will and that the suit ought to have been decreed, allowing partition of all the plaint schedule properties. 17. As an alternate submission, Sri. T. Krishnanunni submitted that even if this Court is to find Ext.B1 Trust Deed and B22 Will respectively to be genuine, it is still manifest that the Trial Court has erred in not allowing the partition of items 17 to 21 of the plaint schedule properties since, concededly, they were available for partition, going by the written statements of the defendants. He thus prays that this appeal be allowed and the judgment of the Trial Court be set aside. 18. In answer to the afore submissions made on behalf of the appellants, Sri. P.B. Krishnan, learned counsel appearing for the third defendant, submitted that, by no stretch of imagination can a Trust Deed be equated or found analogous to a Gift Deed and that these concepts are completely distinct and independent of each other. 18. In answer to the afore submissions made on behalf of the appellants, Sri. P.B. Krishnan, learned counsel appearing for the third defendant, submitted that, by no stretch of imagination can a Trust Deed be equated or found analogous to a Gift Deed and that these concepts are completely distinct and independent of each other. He says that the only common factor in them is that there is a transfer of property but that the manner in which it happens are wholly different from each other and, therefore, that the transfer of property in the case of a Trust can never be construed to be a gift so as to attract the provisions of Section 123 of the Transfer of Property Act. He says that these aspects have already been decided affirmatively by various Courts and he relies on a Bench judgment of the Gujarat High Court in Suleman Isubji Dadabhai vs. Naranbhai Dahyabhai Patel and Others, AIR 1980 Gujarat 165. He then proceeded to argue that even assuming that a Deed of Trust requires to be attested as in the case of a Gift Deed, Ext.B1 herein would still be valid, since it has been attested by two witnesses, namely the 6th defendant and his son. He then countered the submissions of Sri. T. Krishnanunni, as regards the alleged incompetence of the 6th defendant to be an attesting witness, saying that it has been settled as early as in the year 1965 by the Hon'ble Supreme Court in Kumar Harish Chandra Singh Deo vs. Bansidhar Mohanty, AIR 1965 SC 1738 (V 52 C 297) that even a person who is part of the transaction can offer himself as the attesting witness; and, therefore, prays that the submissions of Sri. T. Krishnanunni on these aspects may not be accepted by this Court. 19. Sri. P.B. Krishnan, thereafter, submitted that even though the appellants make a vague allegation that Ext.B22 Will is shrouded in secrecy or that it is hit by vitiating circumstances, nothing specific has been mentioned in the evidence or even in the memorandum of appeal nor is any such discernible from the submissions of the learned senior counsel for the appellant. He then admits that, as regards item Nos. He then admits that, as regards item Nos. 7 to 21 are concerned, his client, having already admitted that they are partible, cannot resile from the same; and therefore, that to that limited extent, this Court may be justified in interfering with the judgment and decree impugned and to issue a preliminary decree making necessary allotment to the same in terms of the entitlement of the parties. He thus prays that this appeal be allowed only to the afore extent and that all the contentions of the appellants on the other issues be repelled. 20. I have considered the afore submissions and have also examined the documents marked in evidence, the testimonies of the witnesses, as also the pleadings on record. 21. As is indicated from the afore narrated facts, while the plaintiffs allege that all the properties of late Bhat are available for partition, defendants 3 and 6 make a specific assertion that except item Nos. 17 to 21 of the plaint schedule properties, none others are partible, since they are governed by Ext.B1 Trust Deed and Ext.B22 Will. Obviously therefore, the endeavor of this Court initially will be to find out if Exts.B1 and B22 are valid in law, for which purpose, I will now analyse the various submissions made on behalf of the appellants by Sri. Krishnanunni. 22. It is without doubt that the creation of a Private Trust is governed by Section 6 of the Indian Trust Act, 1882, the mandate of which is as under: “6. Creation of Trust - Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary and (d) the trust-property and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.” 23. It is inevitable from the above, that a Trust is created when the author transfers the property to the Trustee with the intention to create a Trust and therefore, there is certainly an element of transfer, implicit in the said transaction. It is inevitable from the above, that a Trust is created when the author transfers the property to the Trustee with the intention to create a Trust and therefore, there is certainly an element of transfer, implicit in the said transaction. The germane question is whether this transfer amounts to a gift inter vivos, as contemplated under Section 122 of the Transfer of Property Act, which defines it as below: “122 “Gift” defined - “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee. Acceptance when to be made - Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.” 24. It is ineluctable that if this Court is to find that a transfer of the trust-property under a Trust Deed is analogous to a transfer under a Gift Deed, then certainly the provisions of 123 of the Transfer of Properties Act will apply, which stipulates the manner in which a transfer under a gift is effected. This provision thus becomes vital for my consideration in this appeal and I, therefore, reproduce it as under: “123. Transfer how effected : For the purpose of making a gift or immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.” 25. Before I venture to analyse the legal parameters of these concepts, it will be fruitful for me to first refer to the Bench judgment of the Gujarat High Court in Suleman Isubji Dadabhai (supra) wherein these have been considered in great amount of detail, as is available from paragraphs 8, 10, 11, 12 and 13 thereof. Since these paragraphs are extremely long and instructive in its tenor, I deem it appropriate only to extract the following from it, which are absolutely essential and relevant for the purpose of my consideration: “8. Since these paragraphs are extremely long and instructive in its tenor, I deem it appropriate only to extract the following from it, which are absolutely essential and relevant for the purpose of my consideration: “8. Now, on a close and meticulous analysis of the definition of the “gift” given in Section 122, we find that in order that a transaction becomes gift, there must firstly be a transfer of an immovable property voluntarily and without consideration. Therefore, (i) there must be a transferor, (ii) there must be a transferee and (iii) the transfer must be accepted by or on behalf of the donee. No difficulty arises when the owner of an immoveable property gifts it to another person. But, can we say that the owner of an immoveable property can gift the property to himself? We are unable to conceive of a case where there can be a transfer of an immoveable property by a person to himself, except indeed in case of a trust, to which we are adverting shortly. As for example, there cannot be a sale of property by its owner to himself. Similarly, there cannot be mortgage of an immoveable property by the owner or the mortgagor to himself. Similarly, there cannot be the lease of a property from its owner to himself. Next, an owner of an immoveable property cannot exchange one property of his with another. Lastly, except in cases of trust, there cannot be a gift of an immoveable property by an owner to himself. 10.......Therefore, ordinarily, transfer of an immoveable property to oneself will be an exercise of futility in as much as he would not transfer anything nor he would transfer any rights of his - legal or beneficial - to a third party. It is impossible for us to conceive that a person can be a vendor and a vendee, a mortgagor and a mortgagee, a lessor and a lessee or a donor and a donee. Therefore, it is only in case of a trust that the concept of ‘transfer’ to oneself comes into play, particularly when the settlor appoints himself as the sole trustee. Therefore, it is only in case of a trust that the concept of ‘transfer’ to oneself comes into play, particularly when the settlor appoints himself as the sole trustee. When a settlor creates a ‘trust’ by settling some of his properties and appoints himself as the sole trustee, he bifurcates his dual ownership, retains in himself the legal ownership of the property and transfers beneficial or equitable ownership to those for whose benefit he has created the trust. In other words, in case of a trust, where the settlor appoints himself the sole trustee, he, in his capacity as the settlor, transfer the legal ownership of the trust property to himself in his capacity as the sole trustee and transfers equitable or beneficial ownership to the beneficiaries of the trust. 11. The next question which we are, therefore, required to answer is: does this concept of transfer to himself reflect upon the gift as defined by Section 122 of the Transfer of Property Act?” 12. In other words, if a person, in his capacity as the owner, transfers an immoveable property to himself in his capacity as the sole trustee, does he make a gift to his beneficiaries of that property within the meaning of Section 122 of the Transfer of Property Act? 13......Section 6 of the Trusts Act, in terms, contemplates the transfer of the trust-property except where the author of the trust or the settlor is himself the trustee. Therefore, within the meaning of Sec.6 of the Trusts Act, 1882, when the settlor or the author of the trust appoints himself as the sole trustee, there is no transfer. If the transaction amounts to a gift, there must be a transfer. But every transfer of a property to himself does not create a gift. Creation of a trust and transfer to it of the properties by a person is one more mode of transferring the property, independently of and dehors the gift. We say so because the gift requires the donor and the donee and acceptance by and on behalf of the donee. In addition, the donee must be an individual or an ascertainable class of persons. When a person creates a trust for the benefit of the members of the public, there is no ascertainable class of donees.” 26. We say so because the gift requires the donor and the donee and acceptance by and on behalf of the donee. In addition, the donee must be an individual or an ascertainable class of persons. When a person creates a trust for the benefit of the members of the public, there is no ascertainable class of donees.” 26. It is thus indubitable from the above views of the Hon'ble Gujarat High Court that while “transfer of property” has been defined under Section 5 of the Transfer of Property Act, the words “to himself” have been used only in the context of the creation of a Trust and of no other. I find complete favour with this view of the Gujarat High Court because, as rightly said in the said judgment, it is impossible to visualise a situation where one sells a property to himself; or mortgages a property to oneself; or leases it to himself or creates an encumbrance over it in his own favour, except when he settles a Trust with respect to the property. This is irrefutable because, when a Trust is created with himself as the sole or one of the trustees, there is a bifurcation of his legal and beneficiary ownership over the property, with him holding to himself the legal ownership over it, while transferring the beneficial ownership to the Trust. 27. However, this is in contradistinction with the concept of gift, wherein, an inter vivos transfer is effected in favour of another by the owner of the property without consideration, whereby both the legal and beneficial ownership are transferred. Hence, as correctly concluded by the Bench of the Gujarat High Court, it cannot be even construed for a moment that the transfer of property under a Trust Deed is the same as the transfer of property under a Gift Deed. Obviously therefore, the provisions of Sections 122 and 123 of the Transfer of property Act cannot apply and in fact, the afore opinion of the Gujarat High Court follows an earlier judgment in Durga Din and Others vs. Suraj Bakhsh, AIR 1931 Oudh 285, wherein also a similar exposition had been recorded. I am in complete affirmation with these views and I am, therefore, persuaded to accept it and follow it. 28. I am in complete affirmation with these views and I am, therefore, persuaded to accept it and follow it. 28. When I thus find that Ext.B1 Trust Deed cannot be equated to a Gift Deed under Section 122 of the Transfer of Property Act, obviously, the provisions of Section 123 of the said Act will not apply; and consequently, the said Deed, did not legally require to have any witnesses attesting it. Therefore, as rightly found by the Trial Court, since no attestation is necessary for the purpose of execution of a Trust Deed, the question whether defendant No. 6 is competent to attest it or otherwise would not be any relevant. However, since the learned senior counsel has raised this issue, I deem it appropriate to deal with it at least peripherally. 29. For this purpose, I do not have to labour much other than to read the judgment of the Hon'ble Supreme Court in Kumar Harish Chandra Singh Deo and Another (supra) wherein a clear distinction between the competence of a person who is a party to the transaction but not a party to the Deed, has been conclusively declared. The specific view of the Hon'ble Supreme Court in this regard is available in paragraph 4 of the said judgment, the relevant portions of which are extracted as under: “(4) In our opinion there is no substance in either of the contentions urged on behalf of the appellant. It is no doubt true that there were only two attesting witnesses to the mortgage deed, one of whom was respondent No. 1, that is, the lender himself. Section 59 of the Transfer of Property Act, which amongst other things, provides that a mortgage deed shall be attested by at least two witnesses does not in terms debar the lender of money from attesting the deed. The word “attested” has been defined thus in S. 3 of the Transfer of Property Act. Section 59 of the Transfer of Property Act, which amongst other things, provides that a mortgage deed shall be attested by at least two witnesses does not in terms debar the lender of money from attesting the deed. The word “attested” has been defined thus in S. 3 of the Transfer of Property Act. “attested in relation to an instrument means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” This definition is similar to that contained in the Indian Succession Act. It will be seen that it also does not preclude in terms of the lender of money from attesting a mortgage deed under which the money was lent. No other provision of law has been brought to our notice which debars the lender of money from attesting the deed which evidences the transaction whereunder the money was lent. Learned counsel, however, referred us to some decisions of the High Courts in India. These are Peary Mohan Maiti vs. Sreenath Chandra, 14 Cal WN 1046, Sarur Jigar Begum vs. Baroda Kanta, ILR 37 Cal 525 and Gomathi Ammal vs. V.S.M. Krishna Iyer, AIR 1954 Mad 126 . In all these cases it had been held that a party to a document which is required by law to be attested is not competent to attest the document. In taking this view reliance has been placed upon the observations of Lord Selborne, L.C. in Seal vs. Claridge, (1881) 7 QBD 516. “It (i.e. the attestation) implies the presence of some person, who stands by but is not a party to the transaction.” The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. “It (i.e. the attestation) implies the presence of some person, who stands by but is not a party to the transaction.” The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. No doubt, neither the definition of ‘attested’ nor S.59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it. It must, however, be borne in mind that the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed there is no prohibition in law to the proof of the execution of the document by that person. It would follow, therefore, that the ground on which the rule laid down in English cases and followed in India would not be available against a person who has lent money for securing the payment of which a mortgage deed was executed by the mortgagor but who is not a party to that deed. Indeed it has been so held by the Bombay High Court in Balu Ravji Gharat vs. Gopal Gangadhar Dhabu, 12 Ind Cas 531 (Bom) and by the late Chief Court of Oudh in Durga Din vs. Suraj Bakhsh, ILR 7 Luck 41 : AIR 1931 Oudh 285 (FB). In the first of these cases an argument similar to the one advanced before us was addressed before the Bombay High Court. Repelling it the Court observed” In (1881) 7 QBD 516, much relied upon by the appellant's pleader the old case of Swire vs. Bell, (1793) 5 TR 371, in which the obsolete rule was pushed to its farthest extent, was cited to the Court by Lord Selborne in delivering judgment said: What is the meaning of attestation apart from the Bills of Sale Act, 1878? The word implies the presence of some person who stands by but is not a party to the transaction. He then referred to Freshfield vs. Reed, (1842) 9 M&W 404 and said.” It follows from that case that the party to an instrument cannot attest it. The word implies the presence of some person who stands by but is not a party to the transaction. He then referred to Freshfield vs. Reed, (1842) 9 M&W 404 and said.” It follows from that case that the party to an instrument cannot attest it. Again in Wickham vs. Marquis of Bath, (1865) 1 Eq 17 at p. 25, the remarks of the Master of the rolls imply that if the plaintiffs Dawe and Wickham had not executed the deed as parties but had only signed with the intention of attesting, the provision of the statute requiring two attesting witnesses would have been satisfied.” A distinction was thus drawn in this case between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction and it was said that the latter was not incompetent to attest the deed. This decision was followed by the Chief Court of Oudh. We agree with the view taken by the Bombay High Court.” 30. It is, therefore, manifest that, in the case at hand, defendant No. 6 was not a party to Ext.B1 Trust Deed, but was only appointed as a Trustee under it and therefore, can be only construed to be a party to the transaction and not a party to the Deed as such. Ineluctably, therefore, his competence to sign the document as an attesting witness cannot be impeached, going by the afore extracted declaration of law by the Hon'ble Supreme Court in Kumar Harish Chandra Singh Deo (supra). 31. Further the factum of the Trust have been come into existence on the basis of Ext.B1 Trust Deed is incontestable because, as is limpid from Ext.B3, defendants 1 to 3 and the husband of 5th defendant were appointed as its Trustees on the death of Bhat on 23.08.1990, which fact they do not contest. Further, the order of the Kerala Agricultural Income Tax Appellate Tribunal, dated 23.12.1993, which has been marked in evidence as Ext.B18, would clearly show that all the parties have accepted the properties to be that of the Trust and that certain exemptions were claimed on such basis by late Bhat while he was alive. Further, the order of the Kerala Agricultural Income Tax Appellate Tribunal, dated 23.12.1993, which has been marked in evidence as Ext.B18, would clearly show that all the parties have accepted the properties to be that of the Trust and that certain exemptions were claimed on such basis by late Bhat while he was alive. These aspects are certainly clinching of the fact that the Trust had come into existence and that the properties covered by Ext.B1 had been transferred to it in beneficial enjoyment. 32. In the afore circumstances, the contentions of Sri. Krishnanunni, learned senior counsel against Ext.B1 can only fail and I, therefore, reject them as being without any merit. 33. That brings me to the second question as to whether Ext.B22 Will has been found correctly by the Trial Court to be a valid document. Apart from the assertions at the Bar by the learned senior counsel that this document is enveloped by several vitiating circumstances, nothing specific was contended before me and even though the entire Will was read in its whole, I couldn't find any compelling reason why this Court should find the said document to be non-acceptable. The evidence of DW-2 is affirmative to the extent that he saw the execution of the document; that it was prepared by a scribe as instructed by late Bhat; vetted by Sri. I.V. Bhat, Advocate; finally signed by the deceased in his presence, and these remain without any impeachment. The only question that I can see having been put to DW-2 on the side of the appellants in order to assail the validity of the Will is as to why Advocate I.V. Bhat was being named, with an insinuation that it is because he is now no more. This, however, by itself does not alter the nature or validity of Ext.B22 Will, since I cannot find any particular circumstance being established to hold that the same cannot be accepted in law. 34. When I say this, of course I am aware that the singular submissions of the learned senior counsel is that late Bhat was not in a proper mental frame or disposition at the time when Ext.B22 had been executed. When I evaluate this assertion, it is relevant that Ext.B22 Will was executed 45 minutes after Ext.B1 Trust Deed had been executed on 05.08.1975. When I evaluate this assertion, it is relevant that Ext.B22 Will was executed 45 minutes after Ext.B1 Trust Deed had been executed on 05.08.1975. The suggestion, of course, is that late Bhat was not in a proper mental disposition to execute either, because he had been under some treatment. However, DW-2 clearly explains that he was aware that late Bhat had been undergoing some treatment, but only with respect to his left hand; unequivocally adding that he was capable of full volition and mental status when these documents had been executed. In fact, the statements of DW-2 are bolstered by the fact that Ext.B21 deposition, made by late Bhat in O.S. No. 8/1975 before a competent Court on 05.07.1979, has been placed on record, wherein he has been examined as PW1 in the said suit. The said deposition, as is pellucid from the date it was made, is nearly 4 years after Exts.B1 and B22 had been executed; and it is, therefore, incomprehensible as to how the plaintiffs can impel a contention that late Bhat was not in a proper mental state at the time when the said documents were executed. I am, therefore, certain in my opinion that the Trial Court has found these aspects correctly in the judgment; and consequently, repel these contentions. 35. Once I thus conclude that Exts.B1 and B22 are valid, it becomes irrefutable that all items of the plaint schedule properties, other than items 17 to 21 becomes incapable of partition and, therefore, to that extent the Trial Court was right in having dismissed the suit. 36. That said, however, I fail to understand why the said Court did not grant a preliminary decree with respect to items 17 to 21, which admittedly are available for partition, but apparently subject to a litigation with the Government of Kerala in O.S. No. 8/1975. Though this Court has not been made aware whether the said suit has now concluded or as to its present stage, if it is still pending, it is indubitable that these properties are nevertheless available for partition and that the Suit, hence, ought to have been decreed to such extent. Though this Court has not been made aware whether the said suit has now concluded or as to its present stage, if it is still pending, it is indubitable that these properties are nevertheless available for partition and that the Suit, hence, ought to have been decreed to such extent. Since none of the parties contest this, even in this appeal, I deem it appropriate that I pass a preliminary decree with respect to these properties, based on the shares as are asserted by the parties, which are also without contest; and consequently, to allow this appeal to that limited extent. 37. Resultantly and for the reasons above, I allow this appeal; however, only to the limited extent of declaring that plaint schedule item Nos. 17 to 21 properties are partible and that the plaintiffs are entitled to 1/7th share each thereof, while defendants 1 to 5 are entitled to such share each individually. 38. Consequently, the plaintiffs are at liberty to move the Trial Court for partition of these items of properties by means and bounds, through an appropriate final decree application. 39. As an unavoidable corollary of my observations and findings herein, the afore Cross-Objections would stand dismissed. 40. Finally, in view of the rather singular circumstances involved in this appeal, I deem it appropriate not to make any order as to costs and to direct the parties to suffer their respective costs.