Any female heir can seek for partition in dwelling house.

P.K. Misra, J.

These two appeals have been filed against the common judgment of the learned single Judge in C.S.No.153 of 1996 and T.O.S.No.4 of 1998 dated 112. 2000.

2. The dispute relates to the property of one M.K. Govinda Singh. He had married one Sakunthala Bai. He has one son G. Sekar, the present appellant, and four daughters, namely, Geetha, Vijaya, Shanthi and Uma. Geetha and Vijaya filed C.S.No.153 of 1996 arraying the present appellant as Defendant No.1 and other two daughters as defendants 2 and 3, claiming partition of the property of Govinda Singh, who died on 1. 1996. Sakunthala Bai, the mother of the parties, had already pre-deceased in the year 1992. Subsequently, a an application was filed by one G. Ramesh in C.S.No.153 of 1996 for being impleaded as a party to such suit on the allegation that the deceased Govinda Singh had also married one Saroja as second wife and had begotten two daughters and one son, namely, Jothi and Maya and Ramesh. On the basis of such allegation, Ramesh was impleaded as Defendant No.4. G. Sekar, the first defendant in C.S.No.153 of 1996, filed a written statement contending that Govinda Singh had not died intestate but he had left behind a Will bequeathing the suit property and other movable properties to the first defendant and, therefore, the plaintiffs had no right to seek partition to such properties. He also filed Testamentary Original Suit No.4 of 1998 for grant of Letters of Administration on the basis of such Will dated 211. 1995. In such T.O.S.No.4 of 1998, four daughters of deceased Govinda Singh through Sakunthala Bai were impleaded as defendants 1 to 4 and two daughters and one son of Saroja, the alleged second wife of Govinda Singh, were impleaded as defendants 5, 6 and 7 respectively. Fourth defendant in C.S.No.153 of 1996 in his written statement contended that all the children of Govinda Singh through the first wife as well as the second wife are entitled to share and, therefore, each heir should get 1/8th share in the property. He had denied the genuineness of the alleged will.

3. On the basis of the pleadings, the following issues had been framed in C.S.No.153 of 1996 :-

"(1) Whether the suit for partition by the daughters of the deceased M.K. Govinda Singh, who died intestate, is maintainable or not?

.(2) Whether the suit for partition by the daughters of the deceased M.K. Govinda Singh, who died intestate, is maintainable or not?

.(3) Whether the alleged Will dated 211. 1995 said to have been executed is genuine one and if so, who are the beneficiaries?

.(4) Whether the first defendant is right in claiming right under the alleged Will, without obtaining probate?

.(5) Whether the plaintiffs are entitled to 1/5th share each in the suit properties, left by the deceased, M.K. Govinda Singh?

Subsequently, an additional issue was framed to the following effect:- "Whether the D-4 is entitled to have any share in the schedule property ? If so what is his share?

In T.O.S.No.4 of 1998, two issues framed are as hereunder :-

"1) Whether the Will of late M.K. Govinda Singh is true, valid and genuine ?

2) To what relief ?

4. Inevitably both the suits were taken up together. Learned single Judge has passed a preliminary decree for partition in C.S.No.153 of 1996 directing division of separate property into eight equal shares and has dismissed T.O.S.No.4 of 1998, obviously on the finding that the Will is not genuine.

5. G. Sekar, who was Defendant No.1 in the suit for partition and the sole legatee under the alleged Will, has filed these two appeals. O.S.A.No.196 of 2001 has been directed against the decree in C.S.No.153 of 1996 and O.S.A.No.197 of 1996 has been directed against the decree in T.O.S.No.4 of 1998.

6. Learned single Judge took up issue No.1 in T.O.S.No.4 of 1998 relating to genuineness of the Will and connected Issue Nos.1, 3 and 4 in C.S.No.153 of 1996, which revolved around the validity of the Will together, and found that due execution of the Wi