L. Narasimha Reddy, J.

1. The plaintiff in O.S. No. 1938 of 2006 on the file of the II Additional Junior Civil Judge, Guntur is the appellant. The suit was initially filed against 4 defendants i.e. respondents 1 to 5 herein, for partition and separate possession of the suit schedule property being a house constructed in an area of 106 sq yds in Ward No. 21, Block No. 7, T.S. No. 482 of the Guntur Municipal Corporation. Later on, defendant Nos. 5 to 8 i.e., respondent Nos. 1 and 6 to 8 were added as parties. It was pleaded that the suit schedule property was owned by the mother of the appellant and the respondents herein, by name Y. Anasuyamma, and she executed a Will, dated 15.09.2000 in favour of the appellant and her three sisters i.e., respondent Nos. 2 to 4 herein. The suit was mainly contested by the 1st respondent i.e., 5th defendant therein. He admitted that the property was owned by their mother Y. Anasuyamma. However, he pleaded that the property was bequeathed to him under Will, dated 29.01.2000.

2. Through its judgment dated 29.11.2011, the trial Court passed a preliminary decree directing that the suit schedule property be divided into 9 equal shares, and one share each be allotted to the plaintiffs and to defendant Nos. 1 to 8.

3. The preliminary decree passed by the trial Court was questioned by the 1st respondent by filing A.S. No. 1 of 2012 in the Court of the District Judge, Guntur. The appeal was allowed and the preliminary decree was set aside mainly on the ground that the suit was filed on the basis of a Will, whereas, the decree was passed by treating the suit schedule property as an item held by coparcener. Hence, this Second appeal.

4. Heard the learned counsel for the appellant and learned counsel for contesting respondents.

5. Though the suit was filed for partition, it was on the strength of a Will, but not on the basis of succession. The resistance of the suit was also on the basis of another Will.

6. The trial Court framed the following issues for its consideration:

1). Whether the will Dt. 15-09-2000 executed by Y. Anasuyamma in favour of plaintiff and others is true and valid?

2). Whether the Will Dt. 21-09-2000 executed by Y. Anasuyamma in favour of defendant No. 5 is true and valid?

3). Whether the Wife of defendant No. 5 Sarojini is necessary and proper party to the suit?

4). Whether the plaintiff is entitled to Preliminary decree for partition of suit schedule property into 5 equal shares and delivery of one such share as prayed for?

5). To what relief?

7. On behalf of the appellants, P.Ws. 1 to 3 were examined and Exs. A1 to A3 were filed. On behalf of the contesting respondents, D.Ws. 1 and 2 were examined and Exs. B1 to B6 were filed.

8. The Preliminary decree as mentioned above was passed.

9. In A.S. No. 1 of 2012 the lower appellate Court framed the following points for its consideration:

1). Whether the will Dt. 15-09-2000 executed 'by Y. Anasuyamma in favour of plaintiff and others is true and valid?

2). Whether the Will Dt. 21-09-2000 executed by Y. Anasuyamma in favour of defendant No. 5 is true and valid?

3). Whether the Wife of defendant No. 5 Sarojini is necessary and proper party to the suit?

4). Whether the plaintiff is entitled to Preliminary decree for partition of suit schedule property into 5 equal shares and delivery of one such share as prayed for?

5). To what relief?

and the appeal was allowed.

10. On hearing of the learned counsel for the parties, this Court is of the view that a substantial question of law viz., whether it is not competent for a Court, to pass a preliminary decree, if all the coparceners are before it, though the parties claimed rights on the strength of a Will.

11. The pleadings of the suit disclose that Y. Venkateswarlu and his wife Anasuyamma had 4 sons namely Respondent Nos. 1,6,7 and Koteswara Rao, the father of respondent No. 8. The couple had 5 daughters, i.e., the appellant and respondent Nos. 2 to 4, and mother of respondent No. 5. The suit schedule property