Unprobated will can be taken into consideration for only collateral purposes.

Sivasubramaniam, J.

1. This appeal is directed against the judgment and decree in CS.No.1414 of 1969 on the file of the III Assistant Judge, City Civil Court, Madras. The plaintiff is the appellant herein and the respondents are the defendants.

2. The appellant/plaintiff filed the suit for partition and separate possession of her one-third share in the suit properties and she has raised the following contentions in the plaint filed by her. The plaintiff's father V. Nageswara Rao died intestate in or about 1966 leaving behind him his widow the first defendant, his daughter the plaintiff and the children of his predeceased daughter N.V. Parvathavardini impleaded as defendants 2 to 4. The plaintiff and the first defendant are each entitled to one third share and defendants 2 to 4 are entitled to the balance of one-third share in the properties of Nageswara Rao.

3. Defendants 2 to 4 resisted the suit and filed a written statement raising the following contentions: Nageswara Rao adopted Krishnamoorthy now impleaded as the fifth defendant in the suit. The properties were the ancestral properties of Nageswara Rao, and therefore, the fifth defendant had a half share therein. The first defendant was deaf and dumb and was not living with Nageswara Rao. Defendants 2 to 4 are the children of N.V. Parvathavardini, the eldest daughter of Nageswara Rao. Late Nageswara Rao did not have any love or affection for the first defendant as she was not only deaf and dumb but also she remained away from him for over 20 years. As the mother of those defendants were ill-treated by her husband, late Nageswara Rao had a soft corner for her. Their mother died prematurely at the young age of 30. Even during her life time, these defendants were wholly dependant on Nageswara Rao for their maintenance. He was anxious to provide for these defendants and, therefore, he executed a Will dated l.l.1963. The plaintiff and the second defendant were informed of the terms and dispositions in the Will and they all expressed their approval for the same. There is a reference to the adoption of the fifth defendant Krishnamoorthy. The plaintiff requested her father to implement the terms of the Will insofar as she is concerned immediately. Accordingly, Nageswara Rao began paying the plaintiff the refits accruing from the portion of No.24, Mahalakshmi Street given to her under the Will. The plaintiff has been receiving her portion of the rent from April 1963. She by her conduct has acted as per the terms of the Will of Nageswara Rao and accepted the bequest made thereunder to her. She was receiving rents till December 1966 even after the death of Nageswara Rao. She acted as per the terms of the Will in all aspects. At one point of time, the plaintiff along with her uncle Jagannathan attempted to make arrangements for probating the Will. Having acted as per the terms of the Will and having derived benefits as per the terms pf the Will, the plaintiff is estopped from questioning the Will. The plaintiff received rents regularly and she will be entitled only to one-eighth share at the most.

4. The learned Judge raised relevant issues and after considering the evidence let in by the parties, decreed the suit as prayed for holding that Nageswara Rao died leaving the Will Ex.B-5, that the Will could not be looked into as it was unprobated, that Krishnamoorthy was not the adopted son for the simple reason that he did not implead himself as a party and that the plaintiff did not act upon the terms of the Will. In A.S.No.20 of 1974 and C.M.P.No.9074 of 1977 filed by the said Krishnamoorthy on the file of this Court, it was held that Krishnamoorthy should be impleaded as a party and the judgment of the trial Court was set aside and retrial was ordered on all the issues afresh in the light of the defence raised by Krishnamoorthy.

5. After remand, Krishnamoorthy was impleaded as the fifth defendant in the suit and in effect he adopted the case of defendants 2 to 4 in his written stat