( 1 ) THE defendant has come up in appeal against the judgment of III Additional Civil Judge, Varanasi dated 20-8-1979. The plaintiffs suit for partition and for cancellation of a will has been decreed by the Court below.

( 2 ) HOW the parties are related can be better appreciated from the pedigree as set out below :

( 3 ) THE suit was filed by the widow of Ratan Lal and one of his minor sons Ashok Kumar for separation after partition of their 1/3rd share in House No. K- 11/144 and 3/8th share in another house No. K-11/15. It is alleged that property No. K-11/15 was purchased by Radhey Lal through a sale deed dated 9-5-1918 (Ext. 6 ). Radhey Lal gifted it to his wife and three sons, to each equally. through a registered gift deed dated 16-8-1921 (Ext. 7) each getting 1/4th share therein. The other house K-11/14 was purchased under separate sale deeds 2/3 rd share therein was purchased from Narain Singh and others on 1-8-1923 (Ext. 8) and the remaining 1/3rd from one Ganeshi vide sale deed dated 13-7-1923 (Ext. 9 ). The sale deeds were in the name of the sons of Radhey Lal, of whom only Bal Kishan was then major, other two being minors. The plaintiffs case is that by a sale deed dated 28-7-1933 Mohan Lal sold his 1/4th share in House No. K/11/15 and 1/3rd share in K-11/14 to his mother who thus acquired 1/2 share in House No. K- 11/15 and 1/3rd share in House No. K-11/14. On the same date viz. 28-7-1933 she executed a Will in favour of Ratan Lal bequeathing her entire interest in the two properties including what she had become entitled to as a result of Mohan Lals sale deed. These two documents are Exts. 10 and 11 respectively. Mohan Lal committed suicide on 3-3-1945 and Smt. Annapurna Devi also departed from this world in Feb. , 1955. On her death, Ratan Lal became the owner of 2/3rd share in House No. K11/14 and 3/4th share in House No. K- 11/15. Kaushal Kumar, one of the sons of Ratan Lal had also died during his lifetime on 3-11-1968. His widow and two sons are defendants 3 to 5 while the third son of Ratan Lal is plaintiff No. 2. On the death of Ratan Lal his interest in the two houses devolved on the two plaintiffs and on defendants 2 to 5 equally. Accordingly the two plaintiffs became entitled to 3/8th share in House No. K-11/15 and1/3rd share in House No. K-11/14. This is how the plaintiffs claimed partition of their share in the disputed property. It may be mentioned here that out of the share of Ratan Lal defendants 2 to 5 also got 3/8th and 1/3rd share in House Nos. K-11/15 and K-11/14 respectively.

( 4 ) THE defendant No. 1 contested the suit setting up a Will dated 6-12-1969 in his favour by which Ratan Lal is alleged to have bequeathed his half share in House No. K11/14 in favour of defendant No. 1. Ratan Lal also admitted therein that he had only 1/2 share in the other house. An application for mutation in the Municipal Corporation was moved by defendant No. 1 but on contest by the plaintiffs, the parties were directed to seek declaration of title from a competent Court by order Ext. 12 dated 24-3-1972. The present suit was consequently instituted challenging the Will for the reasons set out in the plaint and for partition of their share in the two houses. The defendants 2 and 3 to 5 have also filed their written statement but it is in support of the plaint allegations.

( 5 ) THE defence was that property K. 11/15 was actually acquired from the funds generated by defendant No. 1 and not by Radhey Lal who had no means at all. The other house was also purchased by defendant No. 1 from his own money although in the sale deed names of all the three brothers was mentioned as its purchasers. He disputed the gift deed by his father that as Mohan Lal had become vagabond and given to easy virtues. the sale deed in favour of their mother was obtained from him on 28-7-1933 with a view to protect it from alienation but it was a sham and fictitious transaction intended to be only on paper and never to be acte