G. K. MISRA, C. J.

( 1 ) THE disputed property admittedly belonged to one Hari-charan Bose who died on 7-8-50. He had three sons : plaintiff, defendant No. 4 and defendant No. 5. On 10-10-46 he executed a will in respect of the disputed property in favour of defendant No. 4 and defendant No. 5. Thus he divested the plaintiff from inheritance under the Will. On 30-10-58 plaintiff filed T. S. No. 60 of 1958 for partition of his one-third interest in the disputed property. Defendants 4 and 5 filed a written statement on 25-2-59 claiming the entire property to themselves on the strength of the will. On 12-9-60, defendants 4 and 5 filed an application for Probate of the will which was registered as O. S. No. 28 of 1961 in the Court of the District Judge, Cuttack. On 28-6-61 a preliminary decree for partition was passed in favour of the plaintiff in T. S. No. 60 of 1958 hi the court of the Subordinate Judge, Cut-tack. On 28-1162 probate of the Will wag granted after contest by the plaintiff. On 10-7-64, plaintiff filed an application in T. S. 60 of 1958 in the court of the Subordinate judge for making final the preliminary decree for partition. On 12-2-65, defendants 4 and 5 filed an ob