( 1 ) THE decision of this appeal turns on the construction of a will made by a Hindu testator. One Chaudhary Zaharia Mall made this will on 23-3-1967. After his death, one of his sons, Budh Singh, filed a suit for partition against the other sons and daughters of the testator without disclosing the will and on the ground that the succession, to the property of late Zaharia Mall would be intestate. The suit was contested by the other three sons of the testator, the daughters remaining ex parte. The contesting sons set up the will and pointed out that Budh Singh had been excluded from succession to the testator by the said will. The plaintiff Budh Singh 586 filed a replication in, which the factum and the validity of the will was denied. Alternatively, however, it was pleaded that even according to the alleged will Budh Singh was entitled to l/6th share in the property. The parties did not adduce any evidence and the court first decided only the following question of law, namely,-

"whether the plaintiff is entitled to a decree as claimed in the suit even if the will is taken to be valid ?"

( 2 ) THE trial Court construed the will to mean that the whole of the prop