were the subject matter of partition suit were included. In the present case at our hand, there was partition between the brothers as has been admitted by the plaintiff and also Fauzdar Chaudhary and the witnesses examined by the plaintiff. No partition suit is pending. In the Will, it is mentioned that whatever property he has got in partition will go to the plaintiff after his death. Therefore, here there is no dispute as to which are his property. In my opinion, therefore, the decision relied upon by the learned counsel for the appellant is not applicable here. So far the question raised by the appellant to the effect that both the brothers were living jointly, therefore, they were joint so, no Will would have been executed with respect to joint property. P.W.4 has admitted that they were living joint. So far this submission is concerned, it may be mentioned here that Fauzdar Chaudhary himself stated that there was partition. Therefore, when there was partition even both the brothers were living jointly, it will not create status of co-percenary family. After coming into force of the Hindu Succession Act, 1956, there is no bar for execution of Will with respect to even joint family property as provided under Section 30 of the Hindu Succession Act. Here as stated above, there is specific case of partition.
