The preliminary decree in a partition suit is final in so far as the matters dealt with by it are concerned, and certain rights accrue to the parties. Failure to prove a registered will can result in the dismissal of claims based on it.

( 1 ) THIS appeal is filed by the defendant to challenge the judgment and decree in O. S. No. 5014/86 on the file of the Addl. City Civil Judge (CCH No. 5), Bangalore city, whereby the said City Civil Judge decreed the suit of the respondents for partition and separate possession and further for mesne profits.

( 2 ) WHEN the appeal was pending before this Court, one Mahendramma alias Indira, the daughter of the appellant herein had also resorted to an I. A. under Order 1, Rule 10 (2) of CPC for a direction to respondents to implead her as a party to the suit. The said I. A. is numbered as I. A. No. VI in the appeal. Hence, I heard the learned Counsel for the appellant Sri. S. K. V. Chalapaty, Sri. V. Tarakaram,the learned Senior Counsel appearing for the Impleading Applicant, the above said Mahendramma alias Indira and Sri. P. D. Surana, the learned Counsel appearing for the respondents.

( 3 ) THE case in brief is as follows :that the respondents had resorted to the suit in O. S. No. 5014/86 on the file of the Addl. City Civil Judge (CCH No. 15), Bangalore City (hereinafter referred to for convenience as the 'court below') for partition and separate possession of house property bearing Khaneshmari No. 471 and 472 of Kengeri village within the limits of Kengeri Town Municipality, Bangalore south taluk. That the respondents No. 1 and 2 are the sons of one Appajappa also known as Muniswamappa and the respondents No. 3 and 4 and the appellant herein are the daughters of the said Appajappa alias Muniswamappa. The case of the respondents as set out in their plaint is that the suit schedule property originally belonged to Appajappa. That during his life time, he had effected a partition of the joint family properties including the suit schedule property amongst his sons, the respondents No. 1 and 2 and there came to be registered a partition deed dated 3-8-1962, Ex. P. 1. That the suit schedule property thus fell to the share of Appajappa under the above said partition deed and subsequently he died in the year 1978 leaving behind the appellant and the respondents and his legal representatives to succeed to the same in equal shares. The respondents therefore claimed partition and separate possession of their share 1/5th share each in the suit property in view of the fact that his wife by name Venkatamma, (the,mother of the appellant and the respondents) also died subsequent to the death of Appajappa. They further claimed that the appellant without consent of the respondents demolished the entire Mangalore tiled roof building originally existing in the suit property during the month of Nov. 1986 and she tried to put up a new structure thereon. Therefore, the suit was filed.

( 4 ) THE appellant herein had filed her written statement in the suit, wherein while admitting the relationship betweep the parties, she contended that Appajappa executed a registered will Ex D. 4 on 16-10-1989, whereunder he bequeathed the entire suit property in her name and favour and as such she claimed absolute ownership of the suit property unto herself. She denied the claim of the respondents for partition of the suit schedule property. She further contended that even before the execution of the Will, she was in possession and enjoyment of the suit property along with Appajappa and her mother Venkatamma. She was so living for the reason that she lost her husband young and therefore she returned to her parents to live in the suit property along with her only daughter by name Mahendramma, the impleading applicant herein.

( 5 ) BASED on the pleadings, the Court below had framed the following six issues : "1. Whether the plaintiffs prove that they and the defendant are in joint possession of the suit schedule properties?2 Whether the plaintiff's further prove that each of them are entitled to1/5th share in the suit schedule property?3 Whether the defendant proves that the suit schedule property was bequathed to her under the will dated 1-10-1