An unprobated Will cannot be relied upon to claim exclusive ownership of properties.

This suit is filed for partition.

2. This suit has arisen in this way: — The plaintiffs are the daughters of one R.K. Mannulal. The defendant is the son of Mannulal. Mannulals wife was Subadra Devi. Mannulal died intestate on 15.3.1992. Subadra Devi died on 9.11.1981. She was the absolute owner of ‘A’ Schedule immovables and ‘B’ Schedule movables. Subadra Devi died intestate. Therefore, the plaintiffs, defendant and Mannulal were each entitled to 1/7th share in Subadra Devis estate. Mannulal died on 15.3.1992. Therefore, the plaintiffs have acquired 1/42 shares in the estate succeeded by Mannulal from his wife and thus, each plaintiff is entitled to 7/42 share, i.e., 1/6th share in the ‘A’ Schedule properties and the defendant is entitled to 7/42 share.

3. Mannulal was the absolute owner of ‘C’ Schedule immovable and ‘D’ Schedule movables. After the demise of Mannulal, each of the plaintiffs is entitled to 1/6th share and the defendant is entitled to 1/6th share. Therefore, the plaintiffs have come forward with the instant suit for allotment of their 7/42 share in ‘A’ and ‘B’ Schedules properties and 1/6th share in ‘C’ and ‘D’ Schedules properties to each of the plaintiffs. The defendant was managing ‘A’ and ‘C’ Schedule immovables, and therefore, he should render accounts for the income from ‘A’ and ‘C’ Schedule properties. They also seek a permanent injunction restraining the defendant from alienating the properties.

4. In his written statement, the defendant had admitted that ‘A’ and ‘B’ Schedule properties belonged to his mother, but ‘B’ Schedule item No. 1 jewellery consists of two items of jewelleries, i.e. , (a) the family jewellery which was to be worn by incoming bride in the family during the marriage ceremony and replaced back to the jewel box after the marriage, and (b) the jewellery which was given to the bride by her parents and parents-in-law at the time of her marriage. According to the defendant, the plaintiffs as daughters of the family, had close nexus with their mother and have slowly dissipated the family jewelleries. The defendant admits the availability of item No. 2 of ‘B’ Schedule movables. According to him, ‘C’ and ‘D’ Schedule properties are allotted to the father in two partitions effected between the father and son on 29.3.1965 and 30.12.1969, but the father has bequeathed his share to the defendant under a registered Will dated 12.4.1990, and therefore, the plaintiffs cannot claim any share in ‘C’ and ‘D’ Schedule properties. He had also pleaded that item No. 3 of ‘C’ Schedule properties is a dwelling house, in which he is residing and the plaintiffs cannot seek partition of the s ame as per the provisions of Section 23 of the Hindu Succession Act. He had also pleaded that the plaintiffs have not paid the proper Court-fees.

5. The following issues were framed on the pleadings: —

1. Whether the defendant is entitled in law to rely upon an unprobated Will purported to have been executed by the parties father Mr. R.K. Mannulal in defence to the partition suit in respect of Plaint ‘C’ and ‘D’ Schedule properties?

2. Whether the defendant has any legal defence for partition of Plaint A to D Schedule properties and for accounting in respect of plaint ‘A’ and ‘C’ Schedule properties?

3. Whether the plaintiffs are in joint possession with the defendant?

4. Whether there has been a merger of the fathers estate and mothers estate and whether such a merger is valid in law?

5. Whether the suit has been properly valued for purposes of Court fee?

6. Whether the plaint averment that there was no love lost between the father and the son is true?7. Whether the averment that the father R.K. Mannulal was continuously ill, lacking the disposing state of mind from 1989 till his end is true?

8. Whether the plaintiffs are competent to allege that the father lacked disposing state of mind?9. Whether the plaintiffs are entitled to the relief of accounts?

10. Whether there is no cause of action for the suit?

11. To