ASTHANA, J. - (1.) THIS is an appeal by the defendants from the judgment and decree of the learned Civil Judge of Agra decreeing the plaintiff-respondents' suit for partition of their half share in a shop situate in'Kumari Bazar, Agra, fully described at the foot of the plaint.
(2.) A reference to the following pedigree would be convenient for under standing the controversy between the parties:- (See Pedigree on P. 390) The plaintiffs, Shri Bhagwan and Mahabir Prasad, who are the son and grandson, respectively, of Babu Lal come to the court with the allegation that the shop in dispute was the joint ancestral property of Babulal and his elder brother Har Narain, it having devolved upon them on the death of Smt. Reoti Devi, their mother. It was further alleged that the shop in question was joint property of Smt. Reoti Devi's father Debi Das and her uncle Angan Lal. It was also alleged by the plaintiffs that the elder brother Har Narain, was a very clever person, while Babulal was a simple and easy go ing person and it was Har Narain, who cleverly manipulated transactions in order to claim the whole of the shop for himself by first fabricating a sale deed dated 18-6-1916 as having been executed MANGAL SEN Debi Das Reoti Devi alias Bewa==Ganeshi Lai Angan Lai Babulal = Smt. Pragdevi. Deft. 5 I Shri Bhagwan, Plff. 1 Mahavir Prasad Plff. 2 I Harnarain Earn Swarup = Smt. Atar Devi Deft. 4 ______ I Om Prakash Deft. 1 by Smt. Reoti Devi, conveying half share in shop in dispute and then a will alleg edly executed by Smt. Reoti Devi on 2-5-1927 bequeathing the other half of the shop to him. The plaintiffs definitely alleged in the plaint that Smt. Reoti Devi did not execute either of these two docu ments and even if she executed them, she having no right or authority for con veying the property in dispute, which was ancestral and joint property of the parties, neither the sale deed nor the will affected the rights of the plaintiffs. The plaintiffs then alleged that at first Har narain was managing the properties in dispute and realising rent and after his death his son Ram Swarup managed the properties but Babulal was being -paid his share of profits by them. It was fur ther alleged that after the death of Ram Swarup his widow Smt. Atar Devi and her sons Om Prakash, Prahlad and Lalla, who were the defendants, refused to pay the share of profits to the plaintiffs and refused to recognize that the latter were co-sharers and having right in the shop in dispute and on a demand having been made by the plaintiffs for rendering ac counts and for partitioning the shop they refused, hence the suit for partition of their moiety share in the shop in dispute and for rendition of accounts.
(3.) THE defendants resisted the suit on the pleas that the shop in dispute was the self-acquired property of Angan Lal, who gifted it to his niece Smt. Reoti Devi by executing a deed of gift dated 10-3-1912 and thus Smt. Reoti Devi be came absolute owner of the shop in dis pute and she had every right to transfer it as she wished; that on 18-6-1916 Smt. Reoti Devi executed a sale deed in res pect of half share of the shop in favour of Harnarain who got his name mutated in the Municipal records and started realising rents, Then by a will dated 2-5-1927 Smt. Reoti Devi bequeathed the other half share in the shop to Harnarain, thus Harnarain became full owner of the shop in dispute and the plaintiffs had no share in it; that it w.as Harnarain and Ram Swarup and after their death Smt. Atar Devi, the widow of Ram Swarup, who always remained in possession of the shop in dispute to the exclusion of the, plaintiffs and realised all the rent from the tenants in the shop without sharing the income with the plaintiffs; that Har narain in 1943 executed a registered Tamliqnama in favour of Smt. Atar Devi, his daughter-in-law, conveying absolutely the shop in dispute to her; that the plain tiffs had no right for asking for accounts of profits from the defendants and that in any view of the matter the defendants by their adverse 'possession extinguished the right and title of the plaintiffs, if any, in the shop in dispute,;