JUDGMENT :

P.B. SURESH KUMAR, J.

1. Defendants 1 and 2 in a suit for partition are the appellants.

2. The suit properties, 14 items in number, are stated to be held by late Thankappan. The plaintiff is the daughter of Thankappan. First defendant is the wife and defendants 2 and 3 are the sons of Thankappan. The fourth defendant is the mother of Thankappan. The fourth defendant died pending suit and two of her daughters were impleaded as her legal representatives.

3. The case set out by the plaintiff is that Thankappan died intestate on 01.05.1997 and the suit properties consequently devolved on the plaintiff and defendants 1 to 4. The prayer in the suit was, therefore, for partition of the one fifth share of the plaintiff over the suit properties.

4. The defendants contested the suit. In the written statement filed by the defendants on 02.04.2001, it was contended among others, that the suit properties have been acquired by Thankappan in his name making use of the funds provided by defendants 2 and 3 from abroad; that Thankappan had executed a will on 25.12.1996; that as per the terms of the said will, the plaintiff is disinherited, and that the plaintiff is therefore, not entitled to any relief in the suit. On 26.07.2004, the defendants filed an additional written statement, contending among others, that Thankappan had no right over plaint schedule item No. 1 property; that the plaint schedule item No. 6 property belongs to a trust and that the plaint schedule item No. 12 is a property sold by the plaintiff and defendants together on the death of Thankappan.

5. The plaintiff gave evidence as PW-1. Exts.A1 to A3 were the documents produced on the side of the plaintiff. Among the said documents, Ext.A1 is the notice issued by the plaintiff to defendants 2 and 3 on 15.12.1999 demanding partition of the plaint schedule properties and Ext.A2 is the notice issued by the plaintiff to the second defendant cancelling the power of attorney issued to him. The defendants examined a witness on their side as DW1 and marked Exts.B1 to B6 documents, of which Ext.B1 is the assignment deed executed by the second defendant in respect of plaint schedule item No. 6 property on behalf of the plaintiff and others, Ext.B2 is the power of attorney executed by the plaintiff and defendants 1 and 3 in favour of the second defendant and Ext.B6 is the will propounded by defendants 2 and 3.

6. The court below did not render a positive finding as to whether execution of Ext.B6 will has been duly proved. The court below, however, rendered a finding that Ext.B6 will is not a genuine one. It was also found that plaint schedule item Nos.6 and 12 to 14 properties are not available for partition. Consequently, a preliminary decree was passed directing that plaint schedule item Nos. 1 to 5 and 7 to 10 shall be divided into forty five equal shares and ten each of such shares shall be allotted to the plaintiff and defendants 2 and 3, nine of such shares shall be allotted to the first defendant and three of such shares each shall be allotted to defendants 5 and 6. The court also directed that plaint schedule item No. 11 property shall be divided into two hundred and seventy equal shares and forty such shares shall be allotted to the plaintiff and thirty six such shares shall be allotted to first defendant and eighty five each of such shares shall be allotted to defendants 2 and 3 and twelve each of such shares shall be allotted to defendants 5 and 6. Defendants 1 and 2 are aggrieved by the said decision of the court below. Hence this appeal.

7. Pending appeal, the second defendant died and his legal representatives have come on record.

8. Heard the learned counsel for the parties on either side.

9. The learned Senior Counsel for the first defendant and legal representatives of the second defendant contended that the crucial question which ought to have been considered by the court below in the case was the question as to whether Ext.B6 will was duly proved by its propounders a