C.B.BHAGAVA, J. - (1.) THIS is a plaintiff's appeal against the judgment and decree dated 18th December, 1965, of the District Judge, Alwar.
(2.) THE plaintiffs are the sons of Umrao Singh who died on 16th, April, 1962, leaving behind properties which are mentioned at items Nos. 1 to 11 of Schedule 'Ka' annexed to the plaint. Before his death, Umrao Singh by his will dated 10th May, 1961, bequeathed these properties in favour of Mst. Patashi his wife. The defendants in the suit are Mst. Patashi, the stepmother of the plaintiffs, Prem Narain and Durgaprasad the other two sons of Umrao Singh, and Mst. Ratti Devi, Anguri Devi, Maya Devi and Shanti Devi, daughters of Umrao Singh. Plaintiff's case is that until 10th September, 1961, Umrao Singh and his sons constituted an undivided Hindu family. On 10th September, 1961, the plaintiffs served a notice upon Umrao Singh of their intention to separate and demanded a partition of the properties. However, Umrao Singh died on the 16th April, 1962, without effecting partition of the properties. Plaintiff's case is that the disputed properties were jointly acquired by them and the deceased Umrao Singh and the plaintiffs are entitled to 20/45 the share in each property. A declaration has been further sought that the will executed by Umrao Singh in favour of Mst. Patasshi is illegal and void because none of the properties was his self -acquired property. They have also sought an injunction restraining Mst. Patashi from disposing of the family property. Mst. Patashi contested the suit and stated that partition had already been effected between the plaintiffs and Umrao Singh before the execution of the will. It was also stated that the properties mentioned in the will were the self -acquired properties of Umrao Singh and he had a right to bequeath them to her.
(3.) THE lower court framed the following issues on the pleading of the parties: In support of these issues, the plaintiffs gave their own statements as P.W. 10 and 11 and also examined Biharilal P.W. 2, Jagan Prasad P.W. 3, Vishamber Prasad P.W. 4, Onkarnath P.W. 5, Prabhudayal P.W. 6, Prashadilal P.W. 7, Ghudiram P.W. 8 and Mahesh Chandra P.W. 9. In rebuttal Mst. Patshi gave her statement as D.W. 1 and examined Harnarain D.W. 2, Mamraj D.W. 3, Rampratap D.W. 4 and Ganeshilal D.W. 5. Plaintiffs also produced receipts issued by the Mining Department Exs. 1 to 5. On behalf of the defendants, copy of the will, copies of Khasra of Smt. 2018, 2019 and 2020 and sale -certificate were also produced. The documents Exs. 1 to 5 are rot traceable on the record, but learned Counsel for the appellants is in possession of the certified copies of these documents and he has placed them before the court for its perusal. ;