A.S.No. 336 of 1984 is by defendants 1. 2 and 4 and AS.No.389 of 1984 is by 3rd defendant against the preliminary decree and judgment.

2. The facts in brief are as follows:

The suit property belongs to the. joint family of the plaintiff and defendants. Sitarama Manolithaya had two sons Krishna Manolithaya and Subraya Manolithaya. As per Ext.A-1 partition deed of 1933 Krishna Manolithaya's branch obtained the 'B' Schedule in the said partition. Second defendant is the widow of Krishna Manolithaya. Plaintiff and defendants 1 to 4 are his children. The 5th defendant is the daughter of a deceased daughter of Krishna Manolithaya. Plaintiff alleged that the plaint 'A' schedule properties belong to the family and the 'B' schedule properties forms kumki and lagthi to the 'A' schedule properties that they were obtained on dharkhast in the names of the members of the family and hence they are partible properties. Plaintiff also alleged that the plaint' C schedule immovables also belong to the family. According to the plaintiff on the coming into force of the Kerala Joint Hindu Family System (Abolition) Act 1975 (Act 30 of 1976) all members of the joint family became tenants-in-common. each one of them is entitled to 1/6th share. At the commencement of the said Act there were six members in the joint family. The plaintiff contended that after her marriage her relationship with the other members of the family became strained. She issued a notice demanding partition to which a reply was received from the first defendant to the effect that Krishna Manolithaya had executed Ext.B-3 will. The plaintiff contended that the will is a fabricated document brought into existence by the first defendant in collusion with the scribe and attestors.. Plaintiff alleged in the amended plaint that the contention of defendants 1.2 and 4 that the plaint 'B' schedule properties are not partible and that the contention of defendants 1 to 4 that the 'Y' schedule in the written statement of defendants 1,2 and 4 belongs to 3rd defendant is not true and correct. According to the plaintiff the purchase certificate Ext.B8 obtained by the 3rd defendant is vitiated by fraud and collusion and the alleged lease is hit byS.74 of Act 1/64. Alternatively it was contended that. the assignment of-the leases were taken utilising the joint family fund and hence the same too are partible properties.

3. Defendants 1. 2 and 4 in their written statement and additional written statement contended that Krishna Manolithaya executed ExtB3 will validly. he had disposing capacity. The 'X' schedule items 2 and 3 were got assigned on dharkhast utiling 1st defendant's funds and therefore the same is not partible. They also contended that the 'X' schedule item No.1 in the written statement was obtained on dharkhast by the 3rd defendant and therefore the same exclusively belongs to her and that the properties comprised in'Y' schedule in the written statement were outstanding in lease; the 3rd defendant obtained Exts.B4 to B7 assignments and later she obtained Ext.B8 purchase certificate. Therefore. according to them those items also are not partible. It is further contended by them that. the 'Z' and 'ZZ' schedules in their written statement are outstanding on lease and applications by tenants for assignment are pending before the Tribunal.

4. The 3rd defendant contended that she obtained purchase certificate on the 1 basis of Ext.B4 to B7; those properties are not liable for partition. The 5th defendant too contended that Ext.B3 will is not genuine and that her 1/6th share in the property has to be partitioned and allotted.

5. The lower court did not accept the claim made by the first defendant and third defendant that the property scheduled to the written statement of defendants 1.2 and 4 as 'X' schedule and 'Y' schedule are not partible properties. Lower court holding that Ext.B3 is not genuine passed a preliminary decree directing to divide the A. B. and C schedule properties into