The main legal point established in the judgment is the application of Order VII Rule 7 of the C. P. Code, which empowers the court to grant relief not specifically prayed for if the plaintiff is entitled to it based on the evidence on record.

( 1 ) THIS appeal by the plaintiff is preferred against the judgment and decree dated 24-10-1986 passed by the learned additional Civil Judge, Shimoga in O. S. No. 10/1985 declaring that the plaintiff is the owner of one half of the suit properties and refusing to grant an injunction as prayed for and also further refusing to pass a decree for Rs. 8000/ -. The trial court has held that the plaintiff and the defendant are the owners of the suit properties and each of them is entitled to share them equally.

( 2 ) HAVING regard to the contentions urged, only two points arise for consideration. They are :1) Whether the trial court is justified in law in not giving effect to the will dated 10-7-1980 - Ex. P. 1- claimed to have been executed by Smt: nagamma ? 2) Whether the trial court is justified in law in not passing a decree for partition in conformity with the finding arrived at by it ?

( 3 ) THE will Ex. P. 1 as per the case of the plaintiff was executed by Smt. Nagamma on 10-7-1980 in favour of the plaintiff-appellant. It is unregistered. Ae per the terms of the will, it is the case of the plaintiff that he is entitled to be declared as owner of the suit properties to the extent of 3/4 share. The trial court has held that the will Ex. P. 1 is not genuine and it is not free from suspicious circumstances. Accordingly it has rejected the will. It is very relevant to notice that subsequent to the death of nagamma - the testator - and prior to filing of the present suit, there was a suit - O. S. 14/1984- filed by the defendant against the plaintiff claiming title to the suit properties. If really there was a will executed by Smt. Nagamma as per Ex. P. 1, the very first defence in that suit would have been the will itself. This will was not made a defence in 0. S. No. 14/1984 by the present plaintiff who was the defendant in that suit. This conduct of the plaintiff being inconsistent with the existence of the will, as rightly held by the trial court, creates a great suspicion about the execution of the will by smt. Nagamma. In addition to -this, learned trial judge has also referred to number of suspicious circumstances such as the plaintiff himself taking an active part in getting the document-Ex. P. 1 - executed by Nagamma, and further there being no circumstance to show that the late Smt. Nagamma was in any way illdisposed towards the defendant. As far as the plaintiff and defendant are concerned, both are great grand step-children of Smt. Nagamma. Therefore, there was no reason whatsoever to Smt. Nagamma to exclude or deprive the defendant from her legitimate share in the suit properties. The evidence of the attestors to the will is also in variance. They have given different versions. Hence taking into consideration the relevant evidence on record, we are satisfied that the finding recorded by the trial court that the plaintiff has failed to establish due execution of the will by Smt. Nagamma is correct and it does not call for interference. Accordingly Point No. 1, is answered in the affirmative.

( 4 ) THE grievance made by the appellant is that the trial court having come to the conclusion that the plaintiff is entitled to one half share in the suit properties, it ought to have passed a decree for partition and separate possession of his half share. Para 41 of the judgment of the trial court is brought to our notice to show that in fact the defendant herself requested the court to grant a decree for partition to avoid another suit for partition. The trial court is of the view that since it is a suit for a declaration of title and injunction, it is not just and appropriate to pass a decree for partition and separate possession. In the facts and circumstances of the case, we are of the view, that the trial court has taken a very technical view of the matter,

( 5 ) THERE is no doubt that the plaintiff- appellant has sought for a declaration of his title to the suit properties and for permanent injunction and also