1. This second appeal has been admitted for hearing on the following substantial question of law:--

Whether the learned court below erred in decreeing the suit of the plaintiffs-respondents by holding that the Will executed by late Abdul Khalaque was void in operative being opposed to the provisions of the personal law of the parties?

2. Heard learned counsel, Mr. P. Roy Barman for the appellants and learned counsel, Mr. D. Chakraborty for the respondents.

3. Fact of the case may be summarised thus:--

3.1 One Abdul Khalaque died on 16.12.1987, leaving behind 3.25 acres of land. After his death respondent No. 1, since deceased, claiming to be the first wife and respondent Nos. 2 and 3 claiming to be sons of Abdul Khalaque through his first wife, claimed their share to the property left by Abdul Khalaque but the defendants i.e. appellant No. 1 being the second wife and appellant Nos. 2 to 6 being the sons of Abdul Khalaque through second wife and appellant Nos. 7 and 8 being the daughters of Abdul Khalaque through the said second wife, denied the right of the respondents and refused to make a partition according to the Mohamedan Law of Inheritance and therefore, the respondents as plaintiffs instituted Title Suit (Partition) 25 of 1998 in the Court of Civil Judge, Sr. Division, South Tripura, Udaipur claiming partition of the suit land described in the schedule of the plaint.

3.2 The appellants being the defendants in the Title Suit, submitted a joint written statement, inter alia, denying the claim of the plaintiffs being legal heir of Abdul Khalaque and further stated that the said Abdul Khalaque before his death executed a Will on 19.11.1987 bequeathing the suit land amongst the defendants and the defendants according to distribution made in the Will, mutated the land in their names and further stated that they are the legal heirs of the deceased Abdul Khalaque and they prayed for dismissal of the suit.

3.3 The learned trial Court considering the pleadings of the parties framed 6 (six) issues namely;

I. Is the suit maintainable in its present form and nature?

II. Whether there is any cause of action to file the suit?

III. Whether the suit land is liable to be partitioned, if so, to what extent the parties are entitled?

IV. Whether defendants are the exclusive sole and only successors of the properties as mentioned in the schedule of the plaint?

V. Whether the plaintiffs are entitled to get relief as prayed for?

VI. To what other relief or reliefs the parties are entitled?

3.4 In course of trial, plaintiffs examined two witnesses and defendants examined four witnesses. Both side proved documentary evidence in respect of death of the deceased. The defendants proved Exbt.”D” as the Will executed by Abdul Khalaque. The learned trial Court by judgment and decree dated 28.03.2001 (decree signed on 29.03.2001) decided all the issues in favour of the plaintiffs and decreed the suit and also determined the share of the plaintiffs and the defendants in the suit land.

4. The defendants i.e. the appellants herein, filed Title Appeal No. 04/2001 before the District Judge challenging the judgment and decree passed by the trial Court. Learned Additional District Judge, South Tripura, Udaipur by judgment dated 16.05.2002 upheld the judgment and decree passed by the trial Court but re-determined the share of the plaintiffs and defendants according to the Mohamedan Law holding that the determination of share to the suit land by the legal heirs of deceased Abdul Khalaque as made by the trial Court was not correct.

5. Challenging the judgment and decree so made by the First Appellate Court, the present second appeal is filed which has been admitted for hearing on the substantial question of law noted herein before, as formulated by this Court.

6. Learned counsel, Mr. Roy Barman appearing for the appellants with all his fairness has submitted that the issue that Abdul Khalaque died leaving behind two wives, seven sons and two daughters, has been amply proved and

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