JUDGMENT : SACHIN SHANKAR MAGADUM, J. The captioned appeal is filed by the plaintiff challenging the judgment and decree passed in O.S.No.7122/2006 on the file of the XXXVIII Additional City Civil Judge, Bengaluru, wherein the suit filed by the plaintiff seeking partition and separate possession of her legitimate share is dismissed. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. The facts leading to the case are as under: The plaintiff namely Smt. Jaywanthi K.Kapadia and defendant Nos.1 to 8 are legal heirs of one A.Venilal. The plaintiff has specifically contended that she along with defendants constituted a undivided Hindu Joint Family. It is contended that plaintiff's father namely A.Venilal died on 23.04.1999 leaving behind plaintiff and defendants as legal heirs. It is the specific case of the plaintiff that her father Venilal was one of the son of propositus Ambaram Fakir Bhai, who died intestate on 04.12.1959. It is contended that plaintiff's father namely A.Venilal along with his brothers entered into a deed of settlement on 14.02.1951 and in the said settlement, the schedule 'A' properties were allotted to plaintiff's father share. At para 7 of the plaint, it is also contended that one Smt. Vichkore Ben, who is none other than sister of Venilal filed a suit for partition and separate possession in O.S.No.6/1960 (renumbered as O.S.No.22/1960) which ended in compromise. It is also stated at para 7 of the plaint that plaintiff's paternal aunt namely Smt.Vichkore Ben relinquished her share by receiving a sum of Rs.70,000/-and in the above said suit, the father of the plaintiff namely Venilal and his three brothers were jointly allotted 5/28th share in the properties which were the subject matter of the suit in O.S.No.6/1960 (renumbered as O.S.No.22/1960). On these set of pleadings, the plaintiff specifically contended that schedule 'B' properties which were the subject matter of O.S.No.6/1960 are also joint family ancestral properties. At para 8, the plaintiff specifically averred that the schedule 'C' properties were purchased by her father and mother out of joint family funds and as such, claimed that schedule 'C' properties are also joint family ancestral properties. The plaintiff has also specifically pleaded at para 9 of the plaint that her father's brother namely A.Thakurdas initiated final decree proceedings in FDP.No.10042/1981 arising out of the preliminary decree passed in O.S.No.6/1960 (renumbered as O.S.No.22/1960). The plaintiff has also specifically pleaded at para 9 of the plaint that her father's brother namely A.Thakurdas initiated final decree proceedings in FDP.No.10042/1981 arising out of the preliminary decree passed in O.S.No.6/1960 (renumbered as O.S.No.22/1960). In the said final decree proceedings, a dispute arose in regard to mode and manner of auction of shop premises bearing No.15/16, Commercial Street and premises bearing No.27(H), (E) and (F) situated at Hospital Road, Civil Station, Bengaluru. It is further stated at para 9 of the plaint that in the said proceedings, the plaintiff's father namely Venilal acquired 1/4th share in the above properties which are referred as schedule 'D' properties. The plaintiff has also further pleaded that her father's brother namely A.Krishna filed a suit for partition and separate possession in O.S.No.5783/1991 seeking 1/4th share in the suit schedule properties. During the pendency of the said suit, the father of the plaintiff died and accordingly, the plaintiff and defendants were brought on record as legal heirs. The suit filed by the uncle of the present plaintiff herein was decreed allotting 1/4th share jointly to the present plaintiff and the defendants. The said preliminary decree was questioned by Krishna and A.Narayan (brothers of Venilal) in RFA.Nos.563/2004 and 332/2004. At para 13 of the plaint , the plaintiff has specifically pleaded that the matter ended in compromise and accordingly, the parties to the appeal filed a compromise petition and in the said compromise petition, the legal representatives of late Venilal were allotted jointly 1/4th share. On these set of pleadings, the plaintiff specifically contended that all the suit schedule properties are joint family ancestral properties and after death of her father Venilal, plaintiff is entitled for 1/36th share in schedule 'D' properties and further she is entitled for 1/9th share in schedule 'A', 'B' and 'C' properties. It is also stated that since schedule 'D' properties were put to auction, she is entitled for 1/36th share of the consideration. On these set of pleadings, she requested the Court to effect partition by metes and bounds by quantifying her legitimate 1/9th share in schedule 'A', 'B' and 'C' properties and 1/36th share under the dividends of auctioned properties comprised in schedule 'D'. On receipt of summons, the defendants tendered appearance and contested the proceedings by filing written statement. On these set of pleadings, she requested the Court to effect partition by metes and bounds by quantifying her legitimate 1/9th share in schedule 'A', 'B' and 'C' properties and 1/36th share under the dividends of auctioned properties comprised in schedule 'D'. On receipt of summons, the defendants tendered appearance and contested the proceedings by filing written statement. The brothers of plaintiff who are arrayed as defendant Nos.1 to 3 filed written statement and stoutly denied the entire averments made in the plaint. The defendant Nos.1 to 3 specifically denied the averments made in para 4 of the plaint. The contention of the plaintiff that her father Venilal died intestate was specifically denied. At para 3 of the written statement, the defendant Nos.1 to 3 contended that Venilal died on 23.04.1999 leaving behind a Will in favour of defendant Nos.1 and 3. The defendant Nos.1 to 3 admitted the averments made in para 7, 8 and 9 of the plaint. The defendant Nos.1 to 3, however, stoutly denied the averments made at para 15 of the plaint. The defendant Nos.1 to 3 specifically denied the allegation that their father Venilal purchased ‘C’ schedule property at Bazaar Street out of the joint family funds. The defendant Nos.1 to 3 further specifically contended that plaintiff be put to strict proof of the same. At para 16 of the written statement, the defendant Nos.1 to 3 specifically contended that defendant No.2 had filed suit in O.S.No.10736/1989 against his father Venilal and the present defendant Nos.1 and 3 seeking partition and separate possession of his 1/4th share in the family properties which were allotted to their father Venilal under preliminary decree passed in O.S.No.6/1960 (renumbered as O.S.No.22/1960). Relying on the decree passed in O.S.No.10736/1989, the defendant Nos.1 to 3 contended that in the said suit their father Venilal was allotted 1/3rd share. It was further specifically contended by defendant Nos.1 to 3 that insofar as 1/3rd share of A.Venilal is concerned, there was a family arrangement wherein 1/3rd share of Venilal in items 1 and 2 of ’C’ schedule was allotted to the share of defendant Nos.1 and 3 and accordingly, a memorandum of family arrangement was later entered on 30.11.1997. The defendants also specifically contended that Venilal bequeathed his 1/3rd share in favour of defendant Nos.1 and 3 under Will dated 18.12.1997. The defendants also specifically contended that Venilal bequeathed his 1/3rd share in favour of defendant Nos.1 and 3 under Will dated 18.12.1997. It was also contended that their mother namely Smt. Jaya Venilal has affixed her LTM on the Will. The defendants further contended in the same paragraph that insofar as ‘C’ schedule properties are concerned, the same are purchased by their father and mother under registered sale deed on 30.01.1989. Their mother namely Smt. Jaya Venilal had half share in the suit schedule ‘C’ properties and she has bequeathed her half share under Will dated 18.12.1997 thereby bequeathing her half share in favour of defendant No.1. On these set of pleadings, the defendant Nos.1 to 3 specifically contended that there was severance during the life time of Venilal and insofar as Venilal's 1/3rd share is concerned, the same was bequeathed as per the Will dated 18.12.1997 and as such, no properties are available for partition. In the same paragraph, the defendants also contended that plaintiff cannot claim to be a co-parcener along with the defendant Nos.1 and 3. It was also contended that in view of the prior partition both under the documents and also in view of preliminary decree drawn in O.S.No.10736/1989, the plaintiff is not at all entitled to any relief in the present suit and the same deserves to be dismissed. Based on the rival pleadings, the Court below formulated the following issues: "1. Whether plaintiff proves that her father late Sri Venilal was the absolute owner of the suit schedule A, B, C properties and he was entitled to 1/4th share in suit schedule D properties? 2. Whether plaintiff proves that she is entitled to a share in the suit schedule properties and if so, to what share and in which of the suit properties? 3. Whether defendant Nos.1 to 3 prove that suit schedule C property was jointly purchased by their father late Sri Venilal, their mother late Smt.Jaya Venilal under registered sale deed dated 30.1.1989? 4. Whether defendant Nos.1 to 3 prove that their mother Smt. Jaya Venilal by executing a Will dated 18.12.1997 has bequeathed her 1/2 share in suit schedule C property in favor of defendant No.1? 5. 4. Whether defendant Nos.1 to 3 prove that their mother Smt. Jaya Venilal by executing a Will dated 18.12.1997 has bequeathed her 1/2 share in suit schedule C property in favor of defendant No.1? 5. Whether defendant Nos.1 to 3 prove that under the compromise decree passed in O.S.10736/89 partition was effected in all the properties belonging to their joint family, between him and his brothers and their father and each of them got 1/4th share in all the joint family properties? 6. Whether defendant Nos.1 to 3 proves that by executing a Will dated 18.12.1987 their father has bequeathed his share in suit schedule D properties in favor of defendant Nos.1 to 3? 7. Whether the valuation of the suit made plaintiffs for the purpose of payment of Court fee is proper and sufficient? 8. Whether plaintiff is entitled to the relief sought for? 9. What decree or order?" The plaintiff in support of her contention examined herself as PW.1 and to corroborate ocular evidence, relied on documentary evidence vide Exs.P-1 to P-10. The defendant Nos.1 to 3 by way of rebuttal evidence examined the defendant No.3 as DW.1 and defendant No.2 as DW.2. The defendant Nos.1 and 3 to establish the due execution of the Wills executed by their father and mother as per Exs.D-4 and D-7, examined DW.4 who is the attesting witness to the said Wills. The defendants also examined one independent witness as DW.3. The learned Judge having assessed the oral and documentary evidence and pleadings answered issue No.1 partly in the affirmative by holding that the father of the plaintiff namely A.Venilal was the absolute owner of schedule ‘A’ to ‘D’ properties. The learned Judge while answering issue No.3 has arrived at a conclusion that schedule ‘C’ properties were purchased by A.Venilal along with his wife Smt. Jaya Venilal. The learned Judge has come to conclusion that the parents of the plaintiff and defendants namely Venilal and Jaya Venilal had half share each in schedule ‘C’ properties. The learned Judge while dealing with issue No.4 and recasted issue No.6 has come to conclusion that defendant Nos.1 to 3 have established the due execution of Will executed by late Venilal as per Ex.D-4 and the Will executed by their mother as per Ex.D-7. The learned Judge while dealing with issue No.4 and recasted issue No.6 has come to conclusion that defendant Nos.1 to 3 have established the due execution of Will executed by late Venilal as per Ex.D-4 and the Will executed by their mother as per Ex.D-7. The learned Judge has recorded reasons that the defendants to remove suspicious circumstances have examined the attesting witness i.e., DW.4 and the evidence on record would clearly indicate that they have succeeded in establishing the due execution of the Wills executed by their father and mother. On these set of reasonings, the learned Judge has come to conclusion that schedule ‘A’, ‘B’ and ‘D’ properties were the absolute properties of Venilal and accordingly, their father Venilal has effected partition as per Ex.D-3 and insofar as schedule ‘C’ properties is concerned, the parents have bequeathed their properties and the defendants have succeeded by way of testamentary succession. The learned Judge has come to conclusion that since the properties are dealt with under partition deed as well as under the testamentary succession, there is absolutely no properties available for partition. Accordingly, has proceeded to dismiss the suit. 4. Learned counsel appearing for the plaintiff would vehemently argue and contend before this Court that the finding recorded by the learned Judge on issue No.2 suffers from serious infirmities and the same is contrary to the clinching evidence on record. Learned counsel would further vehemently argue and contend before this Court that the plaintiff's uncle namely Krishna had filed suit for partition against her father in O.S.No.5783/1991. He would submit to this Court that during the pendency of the suit, the plaintiff’s father namely A.Venilal died and the present plaintiff and defendants were brought on record as the legal representatives. The present plaintiff filed written statement vide Ex.P-2. He would further contend before this Court that the defendants who were also brought on record as legal representatives did not set up Will in O.S.No.5783/1991. On the contrary, one of the defendant in fact filed an affidavit stating that the plaintiff and defendants are entitled for 1/4th share of Venilal. He would further submit to this Court that the suit was decreed in part declaring that plaintiff and defendants are entitled for 1/4th share in the suit schedule 'D' properties. 5. On the contrary, one of the defendant in fact filed an affidavit stating that the plaintiff and defendants are entitled for 1/4th share of Venilal. He would further submit to this Court that the suit was decreed in part declaring that plaintiff and defendants are entitled for 1/4th share in the suit schedule 'D' properties. 5. Placing reliance on the decree in O.S.No.5783/1991 as per Ex.P-3, the learned counsel would vehemently argue and contend that the inter se rights insofar as entitlement is concerned was decided in O.S.No.5783/1991 and in the present suit all that was required to be adjudicated was as to what would be the share of the plaintiff out of 1/4th share held by her father Venilal. This clinching evidence is not at all dealt with by the learned Judge while attending issue No.2. The learned Judge has answered issue No.2 in the negative. The said finding is perverse and palpably erroneous and same is contrary to cogent and clinching evidence on record. Learned counsel would also submit to this Court that the judgment and decree passed in O.S.No.5783/1991 has attained finality, since the appeals filed in RFA.Nos.563/2004 and 332/2004 ended in a compromise and the preliminary decree passed in O.S.No.5783/1991 was not at all disturbed and the same would indicate that the preliminary decree passed in O.S.No.5783/1991 has attained finality. 6. The learned counsel would further vehemently argue and contend before this Court that the learned Judge has superficially proceeded to answer issue No.4 and recasted issue No.6 in the affirmative which deal with the Will executed by the parents of the plaintiff and defendants and also recasted issue No.5 which deals with the alleged memorandum of partition set up by the defendant Nos.1 to 3. Insofar as Wills are concerned, he would counter the reasons assigned by the learned Judge by specifically contending that the Wills were virtually given up by the defendant Nos.1 to 3 in O.S.No.5783/1991. 7. Relying on this material aspect, learned counsel would submit to this Court that the Wills are shrouded with suspicious circumstances. Insofar as due execution of the Wills is concerned, he would submit to this Court that the legatee has not placed on record clinching evidence indicating due execution. 7. Relying on this material aspect, learned counsel would submit to this Court that the Wills are shrouded with suspicious circumstances. Insofar as due execution of the Wills is concerned, he would submit to this Court that the legatee has not placed on record clinching evidence indicating due execution. From the several material aspects which would add up to the already existing suspicious surrounding of both the alleged Wills dated 18.12.1997 executed by the parents of the plaintiff and defendants as per Exs.D-4 and D-7, he would vehemently argue and take this Court to the Wills relied on by the defendants and submit to this Court that signatures of the parents are found on both the Wills and the pattern in which the signatures are secured would only indicate that the same were secured on blank stamp papers. He would further submit to this Court that though thumb impression is secured on Ex.D-4, the same is not at all identified. The similar pattern is also found in Ex.D-7 which is the Will alleged to have been executed by the mother of plaintiff and defendants. 8. Taking this Court to Ex.D-7, learned counsel would submit to this Court that the thumb impression is not at all identified. He would also submit to this Court that if Venilal has bequeathed his share, there was no need for his wife to sign all the pages on the Will executed by Venilal. Similarly in Ex.D-7 which is the alleged Will executed by the mother of plaintiff and defendants, the father of the plaintiff and defendants Venilal could not have affixed his signature on each page. If these material aspects are taken into account in totality, he would submit to this Court that defendant Nos.1 to 3 have concocted the documents styled as Will alleged to have been executed by the parents of the plaintiff and defendants. 9. The grievance of the plaintiff before this Court is that all this minute details which would have a bearing on the decision are totally ignored and discarded by the learned Judge while examining the validity and due execution of the Wills set up by the defendant Nos.1 and 3. 10. The learned counsel would vehemently argue and contend before us that the alleged family arrangement as per Ex.D-3 is unregistered. 10. The learned counsel would vehemently argue and contend before us that the alleged family arrangement as per Ex.D-3 is unregistered. Further, questioning the due execution, he would submit to this Court that this document is also concocted and the same is forthcoming from the manner in which the signatures of Venilal and his wife are secured on the alleged partition deed as per Ex.D-3. Learned counsel would further submit to this Court that the defendants are also laying a claim on the basis of the decree passed in O.S.No.10736/1989. He would submit to this Court that the plaintiff is not at all a party to the said suit and further in view of preliminary decree drawn in O.S.No.5783/1991, the earlier decree passed in O.S.No.10736/1989 to which the plaintiff is not a party cannot be looked into. All these material aspects are not at all dealt with by the learned Judge and thereby the judgment and decree passed by the Court below suffers from perversity and same is palpably erroneous and contrary to the clinching evidence on record. The dismissal of the suit by the learned Judge has resulted in miscarriage of justice and hence, would request this Court to re-appreciate the entire oral and documentary evidence and pass appropriate orders. 11. Learned counsel appearing for the plaintiff to buttress his arguments has relied on the following judgments: 1. M.N. Aryamurthi V M.L. Subbaraya Setty - 1972(4) SCC 1 2. Sri. J.T. Surappa and anr Vs Sri. Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and ors -2008 ILR (Karnataka) 2115 3. C.N. Arunachala Mudaliar Vs C.A. Muruganatha Mudaliar and anr - 1954 SCR 243 4. K. Laxmanan Vs Thekkayil Padmini and others -2009(1) SCC (Civil) 158 5. Sharanabasappa, Siddamma Pampanna and Siddanna Vs Shivakumar and ors -2007(32) R.C.R.(Civil) 909 12. Per contra, learned counsel appearing for the defendant Nos.1 and 3 would vehemently argue and contend before this Court that the judgment and decree passed by the Court below does not suffer from any infirmities. Learned counsel would submit to this Court that the plaintiff who is asserting her right by claiming to be the daughter of Venilal cannot maintain the present suit. Learned counsel would submit to this Court that plaintiff and the other sisters i.e., defendant Nos.4 to 8 cannot claim to be co-parceners. Learned counsel would submit to this Court that the plaintiff who is asserting her right by claiming to be the daughter of Venilal cannot maintain the present suit. Learned counsel would submit to this Court that plaintiff and the other sisters i.e., defendant Nos.4 to 8 cannot claim to be co-parceners. He would also rely on the Karnataka Amendment to Section 6 of the Hindu Succession Act, 1956 contained in Section 6A. Relying on this Karnataka Amendment, he would submit to this Court that the married daughter are excluded and thereby cannot assert and claim to be co-parceners. He would submit to this Court that plaintiff admittedly got married in May 1979 and further, it is also not in dispute that plaintiff's father died in the year 1999. He would further submit to this Court that since succession opened much prior to amendment to Section 6A of the Hindu Succession Act, the plaintiff cannot maintain the present suit seeking her legitimate share in the suit schedule properties. 13. Learned counsel would vehemently argue and contend before this Court that the clinching evidence on record clearly establishes that Venilal did not die intestate and the evidence on record clearly establishes that plaintiff's father has bequeathed his share in favour of defendant Nos.1 and 3 as per Ex.D-4. He would further vehemently argue and submit to this Court that the defendant Nos.1 and 3 have succeeded in establishing that schedule ‘C’ properties are self acquired properties of plaintiff's father and mother and accordingly, they have bequeathed schedule ‘C’ property in favour of defendant Nos.1 and 3. He would also submit to this Court that the oral partition which took place on 01.11.1997 was recorded in a subsequent family arrangement dated 30.11.1997 and the defendants have succeeded in establishing severance in the family by producing the family arrangement as per Ex.D-3. 14. Learned counsel would also submit to this Court that the defendants to establish the factum of partition have adduced clinching documentary evidence and the same is corroborated by ocular evidence of DW.3. Learned counsel would further contend before this Court that the plaintiff cannot rely on the affidavit in O.S.No.5783/1991 wherein one of the brother has admitted that brothers and sisters together have got 1/4th share which was allotted to their father Venilal. Learned counsel would further contend before this Court that the plaintiff cannot rely on the affidavit in O.S.No.5783/1991 wherein one of the brother has admitted that brothers and sisters together have got 1/4th share which was allotted to their father Venilal. He would submit to this Court that the learned Judge has rightly discarded the affidavit of defendant No.3 since there is absolutely no whisper in regard to this statement in the plaint. He would submit to this Court that in absence of pleadings, the contents of the affidavit cannot be looked into and even the ocular evidence in regard to the contents of the affidavit have no evidentiary value and same cannot be looked into. 15. Learned counsel would further submit to this Court that the preliminary decree in O.S.No.5783/1991 would not bind the defendants since the plaintiff was impleaded in the said suit only in a representative capacity and the same cannot be looked into to ascertain the rights of the plaintiff in the suit schedule properties. To buttress his argument, learned counsel has relied on the judgment of the High Court of Mysore rendered in Lakshmamma and Ors. vs. M.Jayaram reported in AIR 1952 Kant 114. 16. Heard the learned counsel appearing for the plaintiff and the learned counsel appearing for the defendants. We have perused the pleadings of the parties and have also gone through the entire oral and documentary evidence adduced by the respective parties. 17. On meticulous examination of the oral and documentary evidence, the following points would arise for consideration in this appeal: (1) Whether the finding of the Court below that the plaintiff is not entitled for 1/4th share in the suit schedule properties is perverse, palpably erroneous and contrary to the pleadings and evidence on record? (2) Whether the Court below was justified in holding that defendant Nos.1 to 3 have proved that the schedule ‘C’ properties are self acquired properties of A.Venilal and his wife Smt. Jaya Venilal? (3) Whether the defendant Nos.1 to 3 have proved the due execution of the Will dated 18.12.1997 as per Ex.D-4 executed by Venilal in favour of defendant Nos.1 and 3? (4) Whether the Court below was justified in holding that defendant Nos.1 to 3 have proved due execution of the Will by Smt. Jaya Venilal in respect of her half share in ‘C’ schedule properties in favour of defendant No.1? (4) Whether the Court below was justified in holding that defendant Nos.1 to 3 have proved due execution of the Will by Smt. Jaya Venilal in respect of her half share in ‘C’ schedule properties in favour of defendant No.1? (5) Whether the Court below erred in dismissing the suit and the same is contrary to the decree passed in O.S.No.5783/1991? Re: Point No.1: 18. The learned Judge while dealing with issue Nos.1 and 2 has come to conclusion that the father of the plaintiff and defendants namely A.Venilal was the absolute owner of schedule ‘A’, ‘B’ and ‘D’ properties. The plaintiff has filed the present suit by specifically contending that she along with defendants constitute an undivided Hindu Joint Family. At para 8 of the plaint, there is a specific contention by the plaintiff that even schedule ‘C’ properties are joint family ancestral properties and was acquired by their father by utilizing joint family funds. Though plaintiff no where in the plaint has referred that the suit properties are co-parcenery properties but the same has to be gathered from the pleadings, oral and documentary evidence lead in by the parties. At para 15 of the written statement, the defendant Nos.1 to 3 have stated as follows: “15. Regarding the 1/4th share of Venilal, the said Venilal and his 3 sons (defendants 1 to 3) constituted a Hindu Undivided family. The daughters of Venilal including the plaintiff had been married during 1974 to 1982. In fact the plaintiff was married in May 1979. Therefore, the daughters of Venilal could not be regarded as co-parcenors along with the defendants 1 to 3 and Venilal.” 19. If we take note of the pleadings of the defendant Nos.1 to 3 at para 15 of the written statement, there is no dispute in regard to existence of co-parcenery family. However, what can be gathered from para 15 of the written statement is that defendant Nos.1 to 3 are disputing the status of the plaintiff as a co-parcener. At para 15, what is pleaded by the defendants is that plaintiff was married in May 1979 and as such, she would not acquire the status of a coparcener in the family of defendants. The characteristic nature of the properties is further evident from Ex.P-10 which is the compromise petition filed by the defendants inter se in O.S.No.10736/1989. At para 15, what is pleaded by the defendants is that plaintiff was married in May 1979 and as such, she would not acquire the status of a coparcener in the family of defendants. The characteristic nature of the properties is further evident from Ex.P-10 which is the compromise petition filed by the defendants inter se in O.S.No.10736/1989. It is also relevant to note that this suit was filed by the defendant No.2 against his brothers and father Venilal. If the pleadings and the averments made in the compromise petition are examined, we are of the view that the defendants are not at all disputing the incidents of coparcenery family existing in plaintiff and defendants family and also in regard to existence of co-parcenery properties. The fact that Venilal has agreed to enter into compromise which is evident from Ex.P-10 clearly shows that the suit schedule properties at schedule ‘A’, ‘B’ and ‘D’ properties are coparcenery properties and the same were acquired by the father of the plaintiff and defendants through his ancestors. 20. We have also taken judicial note of the fact that one Smt. Vichkore Ben who is the sister of A.Venilal filed a suit for partition and separate possession in O.S.No.6/1960 (renumbered as O.S.No.22/1960). The said suit was filed by her seeking partition of her legitimate share in the properties left by her father. It is also borne out from the records that O.S.No.6/1960 was compromised and the sister's share later was purchased by A.Venilal and other brothers. This material aspect would clearly establish that father of plaintiff and defendants namely A.Venilal did not inherit the properties under Section 8 but took the share under Section 6 by way of survivorship. If he has received the ancestral properties under Section 6 of the Hindu Succession Act, 1956, then Venilal would not acquire absolute right since it is a co-parcenery properties. The contention of the defendants that schedule 'A', 'B' and 'D' properties are absolute properties of A.Venilal does not hold water in view of the preliminary decree drawn in O.S.No.6/1960 (O.S.No.22/1960) which was filed by the paternal aunt of the present plaintiff and defendants. There is absolutely no discussion by the learned Judge on this material aspect which would go to the root of the case. 21. There is absolutely no discussion by the learned Judge on this material aspect which would go to the root of the case. 21. On perusal of the admitted pleadings and also documentary evidence which are not in dispute, we would proceed to hold that Venilal succeeded to schedule ‘A’, ‘B’ and ‘D’ properties not as an absolute owner, but as a co-parcener. This material aspect is not dealt with by the Court below while dealing with issue Nos.1 and 2. The learned Judge has proceeded to hold that A.Venilal was entitled to 1/4th share in schedule ‘D’ properties and he was the absolute owner of the same. Similarly, the learned Judge has further proceeded to hold that A.Venilal was the absolute owner of suit schedule ‘A’ and ‘B’ properties. 22. The contention of the defendants is that during the life time of A.Venilal, there was a compromise arrived at between the defendants and their father and to substantiate this contention they are relying on the compromise decree passed in O.S.No.10736/1989. Relying on this compromise decree, the defendants have contended that there was already compromise arrived at between the father and three sons namely defendant Nos.1 to 3. Now the question that would arise before us is whether the compromise arrived at between the defendant Nos.1 to 3 and their father in O.S.No.10736/1989 would amount to severance in the family and would consequently crystallize the rights of the coparceners i.e., defendant Nos.1 to 3 in the family. Before we advert to this controversy, we have to also consider the decree passed in O.S.No.5783/1991. O.S.No.5783/1991 was suit for partition filed by the brother of the plaintiff’s father namely A.Krishnalal in respect of schedule 'D' properties. During the pendency of the suit, the father of the plaintiff and defendants namely A.Venilal died and the present plaintiff and defendants were brought on record as legal representatives. The said suit was contested on merits and the same came to be decreed on 27.11.2003. The plaintiff has produced this judgment and the same is marked as Ex.P-3. What is emerging from the suit in O.S.No.5783/1991 is that defendant Nos.1 to 3 who have made an attempt to non-suit the plaintiff by relying on the decree passed in O.S.No.10736/1989 have not at all resisted the suit in O.S.No.5783/1991 by placing reliance on the compromise decree passed in O.S.No.10736/1989. 23. What is emerging from the suit in O.S.No.5783/1991 is that defendant Nos.1 to 3 who have made an attempt to non-suit the plaintiff by relying on the decree passed in O.S.No.10736/1989 have not at all resisted the suit in O.S.No.5783/1991 by placing reliance on the compromise decree passed in O.S.No.10736/1989. 23. The suit filed by A.Krishnalal in O.S.No.5783/1991 was decreed and in the said suit, the present plaintiff and defendants were allotted 1/4th share in suit schedule 'D' properties. This decree is of the year 2003. If the judgment and decree passed in O.S.No.5783/1991 is taken into consideration then what we would find is that though defendant Nos.1 to 3 along with their father A.Venilal have arrived at an amicable settlement in the suit filed by A.Krishnalal and a compromise decree also came to be passed, however, the said compromise decree was never acted upon. The compromise decree passed in O.S.No.10736/1989 does not amount to severance and the rights of the parties were never crystallized in the earlier suit. The judgment and decree passed in O.S.No.5783/1991 is not at all taken note by the learned Judge while examining issue No.3. The judgment passed in O.S.No.5783/1991 though was taken in appeal in RFA.Nos.563/2004 and 332/2004, it is forthcoming that both the appeals ended in compromise and thereby the preliminary decree in O.S.No.5783/1991 was not at all disturbed and the same attained finality. 24. It is also evident that the present plaintiff who was brought on record in O.S.No.5783/1991 has filed a separate written statement which is produced in the present suit and marked as Ex.P-2. On perusal of para 9 of the written statement filed by the present plaintiff in the said suit, we would find that the present plaintiff has taken a specific contention that her father died intestate on 30.01.1998. Further, she has specifically contended that the suit schedule properties are joint family ancestral properties and she has also stoutly denied the fact of her father bequeathing the suit schedule properties under a Will. She has also specifically contended at para 9 of the written statement that the alleged Wills which are claimed by her brothers i.e., defendant Nos.1 to 3 are fabricated documents, not genuine and created under suspicious circumstances. 25. She has also specifically contended at para 9 of the written statement that the alleged Wills which are claimed by her brothers i.e., defendant Nos.1 to 3 are fabricated documents, not genuine and created under suspicious circumstances. 25. Further, a specific contention is taken by the plaintiff that the suit schedule properties are joint family ancestral properties and her father who was arrayed as defendant No.1 in the said suit had no right to execute a Will and the same cannot be relied upon. It would be useful for us to cull out the relevant portion of the written statement filed by the present plaintiff in O.S.No.5783/1991 which reads as follows: “9. It is submitted that the first defendant died on 30th Jan 1998 intestate. It is admitted that the properties are joint family properties. It is further submitted that the first defendant has not executed any Will as to the knowledge of this defendants as he was not keeping good health for more than three years before his death and was fully bed ridden. It is submitted that as per the statement of the other L.Rs. as to the Will being executed is denied as false. It is submitted that without admitting the said Will is a fabricated document not genuine and one created under suspicious circumstances. It is submitted that as the property are joint family properties the defendant No.1 is not entitled to execute the Will and the same cannot be relied upon.” 26. The contention of the defendants that there was already severance in view of compromise arrived at by Venilal and defendant Nos.1 to 3 in O.S.No.10736/1989, cannot be accepted. If there was no severance between A.Venilal and his brothers, then the question of defendants contending that there was already severance in the branch of A.Venilal cannot be accepted. Admittedly, Krishnalal who happens to be the brother of A.Venilal filed O.S.No.5783/1991 which was a subsequent suit. The suit filed by Krishnalal was contested on merits and the same came to be decreed in the year 2003. This judgment would clearly indicate and also establish that there was no inter se partition between the plaintiff and defendants even as on the date of disposal of the suit in O.S.No.5783/1991. The suit filed by Krishnalal was contested on merits and the same came to be decreed in the year 2003. This judgment would clearly indicate and also establish that there was no inter se partition between the plaintiff and defendants even as on the date of disposal of the suit in O.S.No.5783/1991. The said suit was disposed of by judgment and decree dated 27.11.2003 and in the said suit, the present plaintiff and defendants together have been allotted jointly 1/4th share in schedule 'D' properties. The operative portion of the judgment would also have relevancy in the present case on hand. In the operative portion, the suit is decreed by holding that legal representatives of defendant No.1 i.e., present plaintiff and defendant Nos.1 to 8 are also entitled for 1/4th share in suit schedule 'D' properties. The judgment and decree passed in O.S.No.5783/1991 would prevail over the earlier compromise decree arrived at between the defendant Nos.1 to 3. The subsequent judgment passed in O.S.No.5783/1991 would bind the plaintiff as well defendant Nos.1 to 3. 27. On perusal of the decree passed in O.S.No.5783/1991, it is clearly evident that the father of plaintiff and defendants was arrayed as defendant No.1 who died during the pendency of the suit and the present plaintiff and defendants were brought on record. The plaintiff and defendants together are jointly allotted 1/4th share in schedule 'D' properties. In that view of the matter, the plaintiff is entitled for equal share in the light of the proposition laid down by the Hon'ble Apex Court in VINEETA SHARMA vs. RAKESH SHARMA, AIR 2020 SC 3717 . The plaintiff and defendants father A.Venilal was allotted 5/28th share in schedule 'A' and 'B' properties in O.S.No.6/1960 (renumbered as O.S.No.22/1960) and the said adjudication is pending in FDP.No.10042/1981. Further, as per the decree passed in O.S.No.5783/1991 as per Ex.P-4, the father of plaintiff and defendants was allotted 1/4th share in schedule 'D' properties. In that view of the matter, we are of the view that plaintiff is entitled for 1/9th share out of 5/28th share allotted to A.Venilal in schedule 'A' and 'B' properties. Further, plaintiff is entitled for 1/36th share out of 1/4th share in the dividends of auctioned schedule 'D' properties. In that view of the matter, we are of the view that plaintiff is entitled for 1/9th share out of 5/28th share allotted to A.Venilal in schedule 'A' and 'B' properties. Further, plaintiff is entitled for 1/36th share out of 1/4th share in the dividends of auctioned schedule 'D' properties. Hence, we are of the view that the learned Judge erred in answering issue No.2 in the negative by holding that plaintiff has failed to establish that she is entitled for a share in the suit schedule properties. Accordingly, point No.1 formulated above is answered in the affirmative and the finding of the Trial Court on issue Nos.1 and 2 stand reversed and we hold that the suit schedule properties are joint family ancestral properties and accordingly, plaintiff is entitled for a share. Re: Point No.2: 28. The defendants have taken a specific contention that schedule ‘C’ property is the self acquired property of their father and mother and that the same was purchased by A.Venilal and his wife from his independent income. Having taken a specific contention that schedule ‘C’ property is self acquired property of their father and mother, we have examined the documentary evidence lead in by defendant Nos.1 to 3. On perusal of the records, it is clearly evident that family of plaintiff and defendants possessed several properties and thereby it clearly shows that father of plaintiff and defendants succeeded to ancestral properties. The family of plaintiff and defendants admittedly has sufficient nucleus and the family owned several properties, thereby it was incumbent upon defendant Nos.1 to 3 to demonstrate that plaintiff and defendants' father had independent income and the joint family funds were not utilized to purchase schedule ‘C’ properties. Having raised a contention in the written statement, the defendant Nos.1 to 3 have not placed on record any material evidence indicating that the father of plaintiff and defendants namely A.Venilal had an independent earning and the same was utilized to purchase schedule ‘C’ properties. In absence of rebuttal evidence, the learned Judge has proceeded to hold that the parents of plaintiff and defendants namely A.Venilal and Smt. Jaya Venilal purchased the suit schedule properties jointly under registered sale deed dated 30.01.1989. 29. The learned Judge has laid emphasis on the recitals in Ex.D-1 which is registered sale deed dated 30.01.1989 in respect of schedule ‘C’ properties. 29. The learned Judge has laid emphasis on the recitals in Ex.D-1 which is registered sale deed dated 30.01.1989 in respect of schedule ‘C’ properties. There is no dispute that schedule ‘C’ properties was purchased by A.Venilal and Smt. Jaya Venilal. The dispute is that schedule ‘C’ properties is also joint family ancestral properties. The plaintiff has specifically contended at para 8 of the plaint that her father by selling the joint family properties purchased the schedule ‘C’ properties. Per contra, defendant Nos.1 to 3 have contended that schedule ‘C’ properties is not available for partition. If the father of the plaintiff and defendants namely A.Venilal was managing the joint family ancestral properties as a kartha and if there is acquisition in his name, then the burden is on the defendants to show that their father had not utilized joint family funds while acquiring schedule ‘C’ properties. There is absolutely no evidence forthcoming on behalf of defendant Nos.1 to 3 to show that schedule ‘C’ properties was self acquisition of their father and mother. In that view of the matter, we would hold that schedule ‘C’ properties is also joint family ancestral properties and accordingly, the plaintiff is entitled for 1/9th share in schedule 'C' properties. The finding recorded by the Court below on issue No.3 is palpably erroneous and accordingly, we would answer point No.2 in the negative and set aside the findings recorded by the Trial Court on issue No.3. Re: Point Nos.3 and 4: 30. The defendant Nos.1 and 3 are claiming that their father A.Venilal has bequeathed his share in schedule ‘A’, ‘B’ and ‘D’ properties as well as half share in schedule ‘C’ properties under a Will dated 18.12.1997 as per Ex.D-4. Whereas defendant No.1 has also taken a contention that his mother namely Jaya Venilal has bequeathed her half share in schedule ‘C’ properties under Will dated 18.12.1997 as per Ex.D-7. The Will like any other document has to be proved in terms of the provisions of the Indian Succession Act. The onus of proving the will is on the propounder. The propounder is also required to establish the testamentary capacity of the testator. If the material on record points towards suspicious circumstances then the onus would be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. The onus of proving the will is on the propounder. The propounder is also required to establish the testamentary capacity of the testator. If the material on record points towards suspicious circumstances then the onus would be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. While discussing point No.1, we have taken judicial note of the written statement filed by the plaintiff in O.S.No.5783/1991 wherein the plaintiff has specifically disputed the Wills executed by her parents. 31. Though it is a trite law that testamentary Court is a Court of Conscience and not a Court of Suspicion, but what needs to be seen in the present case on hand is that defendants have not asserted their right by basing their claim on the Wills as per Exs.D-4 and D-7 at the earliest point of time. We are also aware of the trite law that whenever a Will is sought to be proved in a Court, the Court should not start under the presumption that Will is not genuine or that it is fraudulent, but at the same time, it is also trite law that the legatee asserting right by way of testamentary succession is required to lay his claim at the earliest point of time. 32. If pleadings in the written statement filed by the plaintiff as per Ex.P-2 in earlier suit bearing O.S.No.5783/1991 is taken note of, what emerges is that defendants have given up their claim in the earlier suit and that in itself would give raise to a suspicion insofar as Ex.D-4 which is a Will executed by father of plaintiff and defendants is concerned. We have also taken judicial note of the fact that proof of Will stands at a higher degree in comparison to other documents. There must be a clear evidence indicating the intention of the testator to bequeath the properties. 33. Now we need to test the Wills executed by the father as well as mother of the plaintiff and defendants as per Exs.D-4 and D-7. At this juncture, we have meticulously gone through the partition deed as per Ex.D-3 and the alleged Will executed by A.Venilal as per Ex.D-4 and the alleged Will executed by Smt.Jaya Venilal as per Ex.D-7. Now we need to test the Wills executed by the father as well as mother of the plaintiff and defendants as per Exs.D-4 and D-7. At this juncture, we have meticulously gone through the partition deed as per Ex.D-3 and the alleged Will executed by A.Venilal as per Ex.D-4 and the alleged Will executed by Smt.Jaya Venilal as per Ex.D-7. While dealing with both the Wills, we have consciously taken note of the partition deed also since it is very relevant to consider the claim of defendants. On perusal of the partition deed at Ex.D-3 and both the Wills at Exs.D-4 and D-7, we would come across a very unusual and unnatural aspect which would have a bearing on the genuineness of both the Wills at Exs.D-4 and D-7. 34. As rightly argued by the learned counsel appearing for the plaintiff, we would find that in all the three documents, one signature and one thumb impression are found on the extreme left side at the bottom of every page and this signature and thumb impression are taken on extreme left side of every page on all the three documents. One more significant factor which has to be taken note of is that Ex.D-4 is the Will alleged to have been executed by A.Venilal in favour of defendant Nos.1 and 3. Though this alleged Will is said to have been executed by A.Venilal, the defendants have claimed that their mother has also put a thumb impression on this Will on every page. This aspect appears to be very unnatural. The same pattern is also found on the Will executed by Smt. Jaya Venilal as per Ex.D-7. Even in the said alleged Will, A.Venilal’s signature is found on every page at the bottom. The placement of the signature of A.Venilal and the alleged thumb impression of Jaya Venilal on the Wills as per Exs.D-4 and D-7 would without any doubt give raise to suspicious circumstances. The placement of the signature and the thumb impression would lead to an inference that these signatures were taken on blank papers and our doubt and conclusion would further gets strengthened on perusal of the last page of the Will at Exs.D-4 and D-7. 35. It is quite strange to find that A.Venilal had signed the Will at Ex.D-4(J) at the bottom and the witnesses have signed on the top of the page. 35. It is quite strange to find that A.Venilal had signed the Will at Ex.D-4(J) at the bottom and the witnesses have signed on the top of the page. Same pattern is found in Ex.D-7 also. One more relevant factor which needs to be taken note of is that the thumb impression is not at all identified. There is absolutely no evidence lead in by the defendant No.1 to establish that her mother has bequeathed her half share in schedule ‘C’ property by affixing her left thumb impression on the Will. 36. When a claim is made on the basis of a Will, this Court in the case of Sri J.T.Surappa and Another vs. Sri Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and Others, ILR 2008 Kar 2115 has laid down the guidelines to be followed by a Court. The learned Single Judge of this Court has laid down five steps which the Court has to take into consideration while dealing with legal requirements of proof of Will. The principle laid down in the above said judgment contemplates five steps. The first step is if the document produced before the Court prima facie do not satisfy the legal requirements, the Court need not make any further enquiry in regard to due execution and at the threshold can negative a claim based on the said document. The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual. The third step would be to find out whether the testator was in a sound state of mind at the terms of executing the Will. The fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will and the fifth step is to consider whether the Will that is executed is in accordance with Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act. 37. If all these material aspects are taken into consideration, we are of the view that both the Wills at Exs.D-4 and D-7 are shrouded with suspicious circumstances. These suspicious circumstances are not at all removed by defendant Nos.1 and 3 by producing cogent and clinching evidence. One more suspicious circumstance surrounding the Wills at Exs.D-4 and D-7 is forthcoming from the examination-in-chief of DW.4 who is a witness to the alleged Wills. These suspicious circumstances are not at all removed by defendant Nos.1 and 3 by producing cogent and clinching evidence. One more suspicious circumstance surrounding the Wills at Exs.D-4 and D-7 is forthcoming from the examination-in-chief of DW.4 who is a witness to the alleged Wills. At para 3 of the examination-in-chief, he has stated that both the Wills were already typed on the stamp paper. Now this statement in examination-in-chief would clearly show that attesting witness has not witnessed the preparation of the Will at the instance of the testator. This context cannot be ignored while examining the validity of the Wills at Exs.D-4 and D-7. The learned Judge has not at all taken pains in examining these vital aspects while dealing with Exs.D-4 and D-7. Further on meticulous examination of cross-examination of DW.4 who is the attesting witness to the Wills at Exs.D-4 and D-7 has stated that the mother of plaintiff and defendants had suffered a paralysis stroke. This is elicited in the cross-examination conducted on 20.07.2010. Further on meticulous examination of the entire cross-examination of DW.4, it is also forthcoming that the witness has pleaded his ignorance in regard to the family details of the plaintiff and defendants and thereby it can be gathered that DW.4 has no acquaintance with the plaintiff and defendants' family. If the entire evidence of DW.4 is summed up and assessed meticulously not much credence can be attached to his evidence. These all minor details are not at all taken into consideration by the learned Judge while assessing the evidence on the Wills set up by the defendants as per Exs.D-4 and D-7. The learned Judge has probably got carried away by the impression that there is a legal compliance in proving the Will. The learned Judge has proceeded on an assumption that plaintiff has produced the Wills and examined the attesting witness to Exs.D-4 and D-7 and thereby has come to conclusion that defendant Nos.1 and 3 have proved the due execution of Wills in their favour. 38. The landmark judgment of the Hon'ble Apex Court rendered in H.Venkatachala Iyengar vs. B.N.Thimmajamma and Others, AIR 1959 SC 443 and recently followed in Kavita Kanwar vs. Mrs. 38. The landmark judgment of the Hon'ble Apex Court rendered in H.Venkatachala Iyengar vs. B.N.Thimmajamma and Others, AIR 1959 SC 443 and recently followed in Kavita Kanwar vs. Mrs. Pamela Mehta & Others, Civil Appeal No.3688/2017 decided on 19.05.2020 has laid down the mode of proof of Will and has elaborately discussed the onus of proof of the propounder and the manner in which the evidence on record is to be dealt with and appreciated. The Hon'ble Apex Court has further imposed a duty on Court in examining the Wills under dispute. The Hon'ble Apex Court having regard to the provisions of Sections 67 and 68 of the Indian Evidence Act has discussed the parameters and the requirements in proving the Will. The Hon'ble Apex Court in H.Venkatachala Iyengar (supra) has held that as in the case of proof of other documents so in the case of proof of Wills, it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. The judgment of the learned Judge in holding that the Wills relied by defendants as per Exs.D-4 and D-7 stand proved does not satisfy the test and requirements as required by the Hon'ble Apex Court in the judgment supra. The finding arrived at by the learned Judge suffers from serious perversity and the findings recorded by the learned Judge while dealing with issue No.4 and recasted issue No.6 are palpably erroneous, perverse and the same is liable to be reversed by this Court by answering point Nos.3 and 4 in the negative. Re: Point No.5: 39. The defendant Nos.1 and 3 have taken a specific contention that defendant No.2 had filed a suit in O.S.No.10736/1989 against his father Venilal and defendant Nos.1 and 3 seeking partition and separate possession in respect of his legitimate share. The defendant Nos.1 and 3 have contended that the said suit ended in a compromise. Consequent to the compromise decree passed in O.S.No.10736/1989, it is the case of the defendants that there was a partition inter se between defendant Nos.1 to 3 and their father Venilal. To substantiate their contention, they have relied on Ex.D-3 which is the memorandum of partition dated 30.11.1997. To prove the severance in the family, the defendant Nos.1 to 3 have relied on the memorandum of partition as per Ex.D-3. To substantiate their contention, they have relied on Ex.D-3 which is the memorandum of partition dated 30.11.1997. To prove the severance in the family, the defendant Nos.1 to 3 have relied on the memorandum of partition as per Ex.D-3. The defendants have also examined one witness as DW.3 to corroborate their contention in regard to severance in the family pursuant to compromise decree passed in O.S.No.10736/1989. Now we have to examine as to whether defendant Nos.1 and 3 would have succeeded in establishing that pursuant to memorandum of partition as per Ex.D-3, there was a severance in the family and defendant Nos.1 and 3 and their father Venilal effected partition. 40. The above said controversy has to be dealt with in two folds. Firstly, the compromise decree passed in O.S.No.10736/1989 has to be examined in the context of subsequent litigation between the plaintiff and defendants father A.Venilal and his brother Krishnalal in O.S.No.5783/1991. On perusal of Ex.P-4, it is clearly evident that Venilal's brother A.Krishnalal filed a suit in O.S.No.5783/1991 in respect of schedule 'D' properties. In the said suit, the father of the plaintiff and defendants was arrayed as defendant No.1. He died during the pendency of the suit. The present plaintiff and defendants were brought on record as legal representatives and they contested the proceedings. On perusal of the proceedings in O.S.No.5783/1991, we would find that even in the subsequent suit, the brother of A.Venilal specifically contended that there is no severance between himself and his brothers and this contention would presuppose that there is no severance between the plaintiff's father and his brothers. When admittedly there was no severance as on the date of filing of the suit in O.S.No.5783/1991, the inter se partition between A.Venilal and his sons as per the compromise decree passed in O.S.No.10736/1989 cannot be accepted. When the main branches of a joint Hindu undivided family have not effected partition, the co-parceners to one branch cannot assert that there is an inter se partition. In this background, we would find that the compromise decree passed in O.S.No.10736/1989 would not create any rights in favour of A.Venilal and his sons and the same would not indicate severance in the family. 41. Our view would further get strengthened in the light of the affidavit filed by defendant No.3 in O.S.No.5783/1991. In this background, we would find that the compromise decree passed in O.S.No.10736/1989 would not create any rights in favour of A.Venilal and his sons and the same would not indicate severance in the family. 41. Our view would further get strengthened in the light of the affidavit filed by defendant No.3 in O.S.No.5783/1991. At para 4 of the affidavit, he has stated in unequivocal terms that all the parties are in joint possession and enjoyment of the property. He has also stated at para 5 of the affidavit that plaintiff and present defendants who were brought on record as the legal representatives of A.Venilal in the above said suit are entitled for equal share. Paragraphs 4 and 5 of the affidavit would clinch the issue and would establish that there was no severance in the family and the compromise decree arrived at between defendant Nos.1 and 3 and their father A.Venilal in the earlier suit bearing No.10736/1989 is of no consequence and would not create any right. For better understanding, we would deem it fit to refer to the averments made by defendant No.3 at paragraphs 4 and 5 of the affidavit: "4. I submit that all the parties are in joint possession and enjoyment of the property. No single party is in exclusive possession, occupation and enjoyment in management of the suit properties. 5. I submit that our father died on 24.4.1999 leaving behind a Will dated 30.1.1998 bequeathing all his interest of the schedule property to his sons. Not withstanding such will, we have all got together and decided to also give a share to our sisters. My father had 1/4th share in the schedule property. Including himself and we three sons, the three sons were entitled to 1/16th share each (i.e., 1/4 of 1/4). So far 1/16th the share of my father, we have agreed that the said 1/16th share will again be equally shared among all LRs i.e., all brothers and sisters equally only with respect to the suit schedule properties at (No.15 and 16 commercial street and 27 E, F and H, Hospital road) My mother predeceased my father." 42. The judgment rendered in O.S.No.5783/1991 falls within the provisions of Sections 42 and 43 of the Indian Evidence Act. The findings and conclusions arrived therein are relevant. The judgment rendered in O.S.No.5783/1991 falls within the provisions of Sections 42 and 43 of the Indian Evidence Act. The findings and conclusions arrived therein are relevant. We have already held that the judgment passed in O.S.No.5783/1991 granting joint 1/4th share in schedule 'D' properties in favour of the plaintiff and defendant Nos.1 to 3 has attained finality in terms of Sections 42 and 43 of the Indian Evidence Act. The judgment rendered in O.S.No.5783/1991 as per Ex.P-3 is relevant and the learned Judge erred in ignoring the judgment rendered in the above said suit. 43. The admission given by defendant No.3 in the affidavit filed in O.S.No.5783/1991 is a conclusive admission and the same would go to the root of the case. Further, the Trial Court based on the rival contentions has decreed the suit filed by the brother of A.Venilal in O.S.No.5783/1991 and the decree is also placed on record as per Ex.P-4. The Trial Court has awarded joint 1/4th share to the present plaintiff and defendants in suit schedule 'D' properties. Though this preliminary decree was challenged by the other brothers of A.Venilal in RFA.Nos.563/2004 and 332/2004, the same has ended in a compromise. However, the 1/4th share granted in favour of plaintiff and defendants in O.S.No.5783/1991 has remained intact. The statement made by defendant No.3 in O.S.No.5783/1991 attracts the provisions of Section 17 of the Indian Evidence Act. The above said statement made by defendant No.3 is relevant and the same suggest an inference in regard to jointness in the family of plaintiff and defendants. The admission of defendant No.3 is satisfactorily proved by plaintiff and it can be reasonably presumed to be true in absence of rebuttal evidence. The defendant Nos.1 to 3 have not at all offered any satisfactory explanation to overcome the statement made in the affidavit as per Ex.P-7 and the same would create estoppel against the defendants. Even otherwise, we are of the view that the defendants by filing an affidavit in the earlier suit as per Ex.P-7 have voluntarily waived their exclusive right, if any and hence, are estopped by contending that there was severance as per the compromise decree in O.S.No.10736/1989. In that view of the matter, we are of the view that the decree passed in O.S.No.5783/1991 would bind the plaintiff and the defendants since the same has attained finality. In that view of the matter, we are of the view that the decree passed in O.S.No.5783/1991 would bind the plaintiff and the defendants since the same has attained finality. The defendant Nos.1 and 3 have not at all challenged the preliminary decree passed in O.S.No.5783/1991. In the said suit it was decreed holding that the plaintiff and defendant Nos.1 to 3 together are entitled for joint 1/4th share. This presupposes that insofar as Venilal branch is concerned, the same remained joint and there was no severance. 44. The second point that needs to be examined by this Court is the memorandum of partition set up by the defendant Nos.1 and 3 alleging that there was partition between defendant Nos.1 and 3 and their father A.Venilal. The defendants to substantiate their contention in regard to severance have relied on the memorandum of partition dated 30.11.1997 which is marked as Ex.D-3. Since we have already held that the compromise decree recorded in O.S.No.10736/1989 does not amount to severance and would not create any right in favour of defendant Nos.1 to 3 and the said decree would not exclude or deny the plaintiff's legitimate share in the suit schedule properties, however, we would examine Ex.D-3 independently. On perusal of Ex.D-3, which is the alleged memorandum of partition, we would find that even on memorandum of partition, the signatures of father of plaintiff and defendants appears on the extreme left side. Even on partition deed though mother of plaintiff and defendants has no role to play and has no right insofar as schedule 'A', 'B' and 'D' properties are concerned, however, defendant Nos.1 to 3 have claimed that their mother has also put her thumb impression on each page of the alleged memorandum of partition as per Ex.D-3. On the last page, the alleged signatures of A.Venilal and his wife Jaya Venilal are found at the extreme left side at the bottom. In that view of the matter, we are of the view that the alleged signatures of A.Venilal and his wife Jaya Venilal are found at a particular place on each page on the memorandum of partition. This pattern of securing signatures on Ex.D-3 is quite similar and identical to the pattern of signatures taken on alleged Wills set up by defendant Nos.1 and 3 as per Exs.D-4 and D-7. This pattern of securing signatures on Ex.D-3 is quite similar and identical to the pattern of signatures taken on alleged Wills set up by defendant Nos.1 and 3 as per Exs.D-4 and D-7. If defendant Nos.1 and 3 and their father Venilal resolved to effect partition by metes and bounds, then there is no explanation forthcoming from the defendants as to why the alleged left thumb impression of the mother was also secured on this partition deed. These significant details would create a doubt that A.Venilal pursuant to compromise decree passed in O.S.No.10736/1989 resolved to effect partition in the family and accordingly, a memorandum of partition came to be reduced in writing reporting partition in the family on 01.11.1997. No credence can be attached to this document and the same needs to be discarded. 45. While discussing point No.1, we have taken judicial note of the suit filed by the sister A.Venilal in O.S.No.6/1960 (renumbered as O.S.No.22/1960). It is not in dispute that both the parties admit that A.Venilal got 1/4th share in the ancestral properties in the decree passed in O.S.No.6/1960. Pursuant to the preliminary decree passed in O.S.No.6/1960, the parties are not put into exclusive possession by working out feasibility of partition in the final decree proceedings. The defendants who have set up the alleged partition as per Ex.D-3 also indicates that the final decree proceedings are still pending. If the preliminary decree passed in O.S.No.6/1960 has not attained finality and if the father of the plaintiff and defendants A.Venilal and his brothers shares are not carved out, the alleged partition deed set up the defendants as per Ex.D-3 does not create any right. This material aspect is also not dealt with by the learned Judge while recording its finding on issue No.5. 46. The learned Judge while answering issue No.5 in the affirmative has totally misread Ex.D-3. The learned Judge erred in relying on the compromise decree passed in O.S.No.10736/1989. The finding of the learned Judge that plaintiff has failed to displace the clinching evidence placed on record by the defendant Nos.1 to 3 in regard to severance in the family is erroneous and this finding is perverse and contrary to the judgment and decree passed in O.S.No.5783/1991 as per Ex.P-3. The learned Judge has also not examined the affidavit filed by defendant No.3 as per Ex.P-7. The learned Judge has also not examined the affidavit filed by defendant No.3 as per Ex.P-7. This clinching admission given by defendant No.3 is not at all examined by the learned Judge. The learned Judge has recorded a finding that plaintiff being a daughter is not entitled for a share in schedule 'A', 'B' and 'D' properties since there was already partition between father of plaintiff and defendants namely A.Venilal and his two sons i.e., defendant Nos.1 and 3 under a compromise decree passed in O.S.No.10736/1989. The learned Judge has failed to examine the evidentiary value of the compromise decree passed in O.S.No.10736/1989 by examining the judgment and decree passed in O.S.No.5783/1991 as per Ex.P-3. If plaintiff and defendant Nos.1 to 3 were allotted joint 1/4th share in the subsequent suit bearing O.S.No.5783/1991 in respect of schedule 'D' properties, it is clearly evident that there was no severance in the family. 47. The defendants are heavily relying on the compromise decree passed in O.S.No.10736/1989. The compromise petition filed in the said suit as per Ex.P-10 does not indicate that the parties have agreed to effect partition by metes and bounds. On the contrary, the present second defendant who is the plaintiff in the said suit has been allotted 1/5th share in regard to possession in respect of the lands acquired in which the father of the plaintiff and defendants had 5/28th share. In the said compensation, it is agreed that the plaintiff is entitled for 1/4th share. Now further there is a partition deed as per Ex.D-3 between A.Venilal and his two sons i.e., defendant Nos.1 and 3. In the said partition deed, the parties have only resolved to quantify their share but the partition deed as per Ex.D-3 does not indicate that the parties have effected partition by metes and bounds. At paragraphs 2 and 3 of the alleged memorandum of partition, there is only quantification of share. Though we have discarded the memorandum of partition by taking a view that the said document is not genuine and the same does not carry any evidentiary value, even if the said partition deed as per Ex.D-3 is taken into consideration, we would find that there is no severance in the status and the same does not indicate that there is a partition by metes and bounds. 48. 48. Having given careful consideration to the alleged memorandum of partition as per Ex.D-3 and the compromise petition in O.S.No.10736/1989 as per Ex.P-10 and also the affidavit filed by the defendant No.3 in O.S.No.5783/1991 as per Ex.P-7 wherein the defendant No.3 has admitted in unequivocal terms that all the parties are in joint possession and enjoyment over the properties and no single party is in exclusive possession and further the fact that the preliminary decree passed in O.S.No.6/1960 (renumbered as O.S.No.22/1960) is still pending in FDP.No.10042/1981 clearly establishes that there is no partition by metes and bounds. In the memorandum of partition as per Ex.D-3, none of the parties have received any properties and from the entire record, it is forthcoming that defendant Nos.1 to 3 are exclusively enjoying the properties as claimed by them under Ex.D-3 and in the compromise decree arrived in O.S.No.10736/1989. If all these relevant facts are taken into consideration, the principles laid down by the Hon'ble Apex Court in Prema vs. Nanje Gowda and Others, (2011) 6 SCC 462 are applicable. It would be useful for us to refer to paragraph 14 of the said judgment which reads thus: "14. While dismissing the appeal preferred against the judgment of the High Court, this Court observed as under: (Sai Reddy case (1991) 3 SCC 647 ) "7........The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. ....... Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment." 49. If there is no severance, then in view of the latest judgment of the Hon'ble Apex Court rendered in VINEETA SHARMA (supra), we would hold that plaintiff would succeed as a co-parcener and she would take an independent share at par with her brothers as a co-parcener. The Hon'ble Apex Court at para 129 of the judgment has held as follows: "129. The Hon'ble Apex Court at para 129 of the judgment has held as follows: "129. Resultantly, we answer the reference as under: (i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. (ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. (iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. (iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. (v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly." 50. The conclusion arrived at by the Hon'ble Apex Court at paragraph 129(iii) would squarely apply to the present case on hand. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly." 50. The conclusion arrived at by the Hon'ble Apex Court at paragraph 129(iii) would squarely apply to the present case on hand. The said conclusion arrived at by the Hon'ble Apex Court necessarily imply that irrespective of death of a propositus on or before 09.09.2005, the same would in no way affect the right of a daughter. The said conclusion would clearly indicate that inspite of death of a father much prior to commencement to 2005 amendment, the daughter would still acquire the status of a co-parcener. 51. For the reasons stated supra, we would hold that the finding recorded by the learned Judge on issue No.5 is perverse, palpably erroneous and contrary to clinching evidence on record. Accordingly, point No.5 formulated by this Court is answered in the affirmative and the finding recorded by the learned Judge on issue No.5 is set aside by holding that the learned Judge erred in dismissing the suit by relying on the compromise decree passed in O.S.No.10736/1989 and the alleged memorandum of partition as per Ex.D-3 which is contrary to the decree passed in O.S.No.5783/1991 which would bind the plaintiff as well as the defendants. 52. In view of our findings recorded on point Nos.1 to 5, we would lay down the following conclusions: a) The finding of the learned Judge that the suit schedule properties are absolute properties of A.Venilal and thereby plaintiff is not entitled for any share in the suit schedule properties is perverse, palpably erroneous and contrary to the admitted pleadings at para 15 of the written statement. The said finding is also perverse and contrary to the pleadings in the compromise petition filed by the defendants inter se in O.S.No.10736/1989 as per Ex.P-10. The clinching evidence adduced by the plaintiff and also the admitted pleadings in the written statement would clearly establish that the suit schedule ‘A’, ‘B’ and ‘D’ properties are co-parcenery properties and the plaintiff is entitled for her legitimate share as a coparcener in the light of the law laid down by the Hon’ble Apex Court in Vineeta Sharma (supra). The clinching evidence adduced by the plaintiff and also the admitted pleadings in the written statement would clearly establish that the suit schedule ‘A’, ‘B’ and ‘D’ properties are co-parcenery properties and the plaintiff is entitled for her legitimate share as a coparcener in the light of the law laid down by the Hon’ble Apex Court in Vineeta Sharma (supra). (b) The finding recorded by the learned Judge on issue Nos.4 and 6 holding that defendant Nos.1 and 3 have proved the due execution of the Will executed by plaintiff and defendants mother namely Jaya Venilal as per Ex.D-7 and the Will executed by their father A.Venilal as per Ex.D-4 is perverse and palpably erroneous. While discussing point Nos.3 and 4 above, we have dealt with the evidence in regard to the alleged Wills set up by the defendant Nos.1 and 3 as per Exs.D-4 and D-7. The learned Judge though has taken note of the signatures and thumb impressions found on the Wills as per Exs.D-4 and D-7, however, negatived the contention of the plaintiff in that regard and by doing so, the learned Judge has totally misread the evidence and the contentions raised by the plaintiff in regard to the suspicious circumstances surrounding the alleged Wills set up by defendant Nos.1 and 3 as per Exs.D-4 and D-7. (c) We would find that the learned Judge has passed this decision on mere surmises and conjunctures. The learned Judge has proceeded to hold that the due execution is proved by accepting the evidence of the propounder and the attesting witness. This finding is contrary to the settled proposition of law that mere statutory compliance of proving the Wills would not in itself establish the due execution of the Will and would remove suspicious circumstances. In this background, we have dealt with point Nos.3 and 4 and the finding recorded by the learned Judge in answering issue Nos.4 and 6 relating to the Wills set up by defendant Nos.1 and 3 is perverse and the same suffers from serious infirmities. (d) The finding of the learned Judge on issue No.5 is dealt with by us while answering point No.5. We have dealt with in detail the effect of the compromise arrived at by the defendants in O.S.No.10736/1989. (d) The finding of the learned Judge on issue No.5 is dealt with by us while answering point No.5. We have dealt with in detail the effect of the compromise arrived at by the defendants in O.S.No.10736/1989. We are of the view that the learned Judge has failed to consider the material evidence in arriving at the conclusion while answering issue No.5. The finding of the Court below that the compromise decree passed in O.S.No.10736/1989 and the subsequent partition under the alleged memorandum of partition as per Ex.D-3 establishes that there was a family partition between defendant Nos.1 and 3 and their father Venilal is perverse. The finding of the learned Judge is manifestly erroneous. We are of the view that the learned Judge has misdirected himself by applying wrong standards of probability and also has committed an error in procedure. (e) The principle of partition among co-parceners was required to be examined by the learned Judge by taking judicial note of the judgment and decree passed in O.S.No.5783/1991. We have dealt in detail while answering point No.5. The defendants have failed to prove the genuineness of the memorandum of partition as per Ex.D-3. The records also indicate that the preliminary decree passed in O.S.No.6/1960 (renumbered as O.S.No.22/1960) is still pending for consideration in FDP.No.10042/1981 which is between the plaintiff's father and his sister. All these vital aspects clearly indicate that there is no partition by metes and bound and as such, the finding recorded by the learned Judge on issue No.5 suffers from perversity. (f) In the present case on hand, we have meticulously examined the Will executed by A.Venilal as per Ex.D-4 and the Will executed by Jaya Venilal as per Ex.D-7. We have exhaustively discussed the manner in which the signatures are found on the alleged Wills as per Exs.D-4 and D-7. The first rule requires that the Will should be signed by the testator. On perusal of Ex.D-4, the contention of the plaintiff denying the Will in favour of defendant Nos.1 and 3 stands probabalised. The signature of A.Venilal and his wife Jaya Venilal are found at a particular place on both the Wills at Exs.D-4 and D-7 and also on Ex.D-3 which is the alleged memorandum of partition effected between A.Venilal and his sons i.e., defendant Nos.1 and 3. The signature of A.Venilal and his wife Jaya Venilal are found at a particular place on both the Wills at Exs.D-4 and D-7 and also on Ex.D-3 which is the alleged memorandum of partition effected between A.Venilal and his sons i.e., defendant Nos.1 and 3. The manner in which the signatures are found on the alleged Wills at Exs.D-4 and D-7 are not at all properly explained by the propounder of the Will. The allegation of the plaintiff that her father and mother have never executed the Wills in favour of defendants stands substantiated. This material aspect is not at all dealt with by the learned Judge while examining the alleged Wills at Exs.D-4 and D-7. If A.Venilal intended to bequeath his share in the suit schedule properties then we are unable to understand as to why his wife Jaya Venilal has also affixed her thumb impression on each page of the Will alleged to have been executed by A.Venilal. Similarly, in the alleged Will executed by Jaya Venilal as per Ex.D-7, no explanation is forthcoming as to why A.Venilal has signed on each page of the alleged Will executed by Jaya Venilal. The test is whether the signatures found on the Wills are the one of the testator and whether the entire document which is termed as a Will convey the intention of a testator to give effect to the writing as a Will. All these significant details in our opinion are not dealt with by the learned Judge while examining the Wills under challenge. We have gone through the judgment relied by the learned counsel for the defendants in Lakshmamma (supra). The said judgment relied by the learned counsel would not come to the aid of the defendants and has no application to the present case on hand. (g) The judgment relied by the learned counsel for the plaintiff in the case of M.N.Aryamurthi (supra) has no application to the present case on hand since while examining point Nos.3 and 4, we have held that defendants Nos.1 and 3 have failed to remove suspicious circumstances surrounding the Wills. The judgment relied upon by the learned counsel in J.T.Surappa (supra) is applicable to the present case on hand. In the said judgment, the learned Single Judge of this Court was of the view that the signatures affixed on the left hand margin on the face of it is unacceptable. The judgment relied upon by the learned counsel in J.T.Surappa (supra) is applicable to the present case on hand. In the said judgment, the learned Single Judge of this Court was of the view that the signatures affixed on the left hand margin on the face of it is unacceptable. The learned Single Judge of this Court while examining an identical issue was of the view that the fact that the signatures are found at the extreme left hand margin would create suspicious circumstances and the propounder of the Will has failed to remove the suspicious circumstances. In this background, the Court was of the view that attestation and even execution is not proved in accordance with law. The principles laid down in the above said judgment is applicable to the present case on hand. (h) To test the genuineness of both the Wills, the Court is also required to look into other circumstances which would play a crucial role in bringing out the truth. What emerges from the material on record is that defendant Nos.1 to 3 have made an attempt to grab the entire properties of the family. They set up a compromise decree passed in O.S.No.10736/1989 and then they have further set up the alleged memorandum of partition wherein a share is allotted to their father A.Venilal. Then they would go to the extent of setting up of the Will thereby claiming 1/3rd share of A.Venilal by alleging that their father has bequeathed his share also. Now defendants did not stop here. They have also claimed the mother's share in schedule ‘C’ properties as per Ex.D-7. It is quite common in Indian tradition that ordinarily mothers have more inclination towards her daughters. But, in the present case on hand, the defendant Nos.1 and 3 have come up with a Will alleging that their mother bequeathed her half share in schedule ‘C’ properties as per Ex.D-7. (i) The present case on hand prima facie indicates that an unjust disposition of the properties wherein defendant Nos.1 and 3 being sons have received not substantial benefit but entire benefit in the suit schedule properties. These all circumstances raise suspicion about execution of the Wills by the father and the mother in favour of defendant Nos.1 and 3. (i) The present case on hand prima facie indicates that an unjust disposition of the properties wherein defendant Nos.1 and 3 being sons have received not substantial benefit but entire benefit in the suit schedule properties. These all circumstances raise suspicion about execution of the Wills by the father and the mother in favour of defendant Nos.1 and 3. Having regard to the gravity of suspicion in the present case on hand, we are of the view that the same cannot be removed by mere assertion of the propounder that the Will bears the signatures of the testator and in view of the ocular evidence of attesting witness examined as DW.4 would bring in due compliance of legal requirements under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. (j) The Hon’ble Apex Court in Smt. Jaswant Kaur vs. Smt. Amrit Kaur and Others, AIR 1977 SC 74 has held that the Court has to be extra cautious in respect of the Wills, the execution of which is surrounded by suspicious circumstances, the Court is required to determine the question as to whether an instrument produced before the Court is the last Will of the testator. The Court is called upon to decide the solemn question and by reason of suspicious circumstances, the Court has to be satisfied fully that the Will has been validly executed by the testator. The above said circumstances narrated by this Court would raise a grave suspicion as regards the making of the Will. In our opinion, the circumstances narrated above are sufficient to discard the Wills set up by defendant Nos.1 and 3 as per Exs.D-4 and D-7. In our opinion, the defendant Nos.1 and 3 have miserably failed to discharge the heavy onus which lay on them of explaining the suspicious circumstances surrounding the execution of the Wills. We would also not hesitate to hold that the Wills as per Exs.D-4 and D-7 are unnatural and unfair. (k) One more relevant fact which we have to take judicial note of is that the present plaintiff who was arrayed as defendant No.1(vii) in O.S.No.5783/1991 has filed written statement and has stoutly denied the alleged Wills in favour of defendant Nos.1 and 3. To counter these allegations, the defendant Nos.1 and 3 have not at all pleaded and set up the Will in the earlier suit. To counter these allegations, the defendant Nos.1 and 3 have not at all pleaded and set up the Will in the earlier suit. If the Will is not set up at the earliest point of time, it is trite law that this would be one of the suspicious circumstances. No explanation is forthcoming from defendant Nos.1 and 3 as to why they have not claimed right under the Wills in the earlier suit. All these material aspects are not at all taken into consideration by the learned Judge. 53. For the foregoing reasons, we proceed to pass the following: ORDER (i). The appeal is allowed. (ii). The judgment and decree dated 02.08.2011 passed in O.S.No.7122/2006 on the file of the XXXVIII Additional City Civil Judge, Bengaluru is set aside. (iii). The suit of the plaintiff is decreed and it is held that the plaintiff is entitled for partition and separate possession of her 1/9th share out of 5/28th share in schedule 'A' and 'B' properties, 1/9th share in schedule 'C' properties and 1/36th share out of 1/4th share in the dividends of auctioned properties comprised in schedule 'D' properties. (iv). Draw modified decree accordingly.