1. This appeal is from the decision of the Additional Subordinate Judge of Hazaribagh decreeing the plaintiffs' suit. The plaintiffs, as members of a joint Hindu family, claim partition of their 8-annas share in the properties mentioned in Schedules ha and kha of the plaint and pray that a Commissioner be appointed to divide the properties in suit into two equal moieties and to put the plaintiffs in separate possession of one of these. The defendants on the other hand resist the suit by alleging that a separation was effected in mess, worship and estate between the contending branches of the family so long ago as the year 1853 and that since then the two families have lived in a state of separation in every respect. They further allege that between 1858 and 1892, though separated, they continued to acquire properties jointly with the plaintiffs not as co-parceners but only as partners and that in 1894 they effected a division of the properties so acquired within this period and adjusted their rights in proportion to the extent of contribution made by each party separately for these acquisitions. It is also alleged by the defendants that since 1892 no more property was jointly acquired, but that it so happened that some deeds were jointly executed with the plaintiffs at the request and pressure of the creditors for the reason that some of the old title-deeds stood in the names of both the parties. The defendants further allege that the plaintiffs among themselves are not joint and that the suit is only nominally a suit for partition but in substance a suit for declaration of title and delivery of possession.
2. The principal point for consideration in this appeal is whether there was a separation in 1858 or whether up to the institution of the present suit the plaintiffs and defendants have continued to be members of a joint Hindu family governed by the Mitakshara Law. Before dealing with that issue it is desirable to deal with the contention that the suit is a suit for declaration of title and recovery of possession put forward in the guise of a partition suit. We cannot accept this contention. The frame of the suit is disclosed in the plaint and a perusal of paragraphs 3 and 14 clearly shows that the plaintiffs have never admitted to have lost their joint possession over the property sought to be partitioned. The terms in which reliefs Nos. 1 and 2 in the plaint have been framed are clear and unequivocal. We are unable to find from the plaint any indication whatsoever that the frame of the suit is such as is alleged by the defendants. The prayer is to partition the property in suit and effect separation of possession of one of the equal moieties. We are, therefore, of opinion that this is not a possessory but a partition suit and the view taken by the lower Court of Schedule 2, Article 17, Clause 6, of the Court Fees Act is correct. The learned Vakil appearing for the appellants relies on some proceedings recorded before the Settlement Officer in connection with the publication of Record of Rights with reference to some of the properties in suit. It has been suggested that the fact that in some instances the Record of Rights was made in favour of the defendants alone, raises the presumption that the two families were separate. In this connection our attention has been drawn to Exhibit P (1), which is a certified copy of the tanaza sheet of Mauza Mandai Khurd, one of the properties in suit. It contains an order, dated the 18th of April 1912, passed by the Settlement Officer. The order is as follows: "Uttam Mahto (plaintiff) cousin of Ramdayal Mahto (defendant) claims a share in the village but admits that he has never had any possession nor has ever been given any share of the rents. His claim, if any, is purely a Civil one and the name of Uttam Mahto should not, therefore, be recorded."
3. The Assistant Settlement Officer was in no way concerned with the question of title. His proceedings were limited to a decision on the factum of possession without any reference to the rights of a co-parcener in such possession. We are, therefore, unable to conclude from the order quoted above that the proceedings of the Settlement Officer, whether with reference to Mandai or any other properties in suit, can be construed in any way to affect the principal issue in the case before us, and we hold that the orders passed in the preparation of the Record of Rights do not raise any presumption that the plaintiffs were separate from the defendants in mess, worship and estate at the time when those orders were passed. The frame of the suit as disclosed in the plaint remains unaffected by the proceedings of the Settlement Officer.
4. The real question at issue is, whether the plaintiffs and the defendants were members of a joint Hindu family on the date of the institution of the suit or there had been a separation as is alleged by the defendants. The presumption of the Hindu Law is that a Hindu family is joint, unless the contrary is proved. The burden of proving separation, therefore, lies heavily on the defendants and unless that burden is discharged, this all-important issue must be decided in favour of the plaintiffs. The question then is was there a separation in the year 1858? In order to understand how the parties are related it is necessary to refer to the genealogical table on the paper-book. It appears that Chamari Mahto, the grandfather of the plaintiffs Uttim and Chhatardhari and the defendants Ramdayal, Teka and Dayal, had two brothers named Gandouri and Jitan. These two predeceased Chamari who died in 1857. The defendants' case is that a year after Chamari's death a complete disruption of the joint family took place. In paragraph 11. of the written statement they say that the 8 sons of Gandouri Mahto got 2 annas of raiyati land in Mauza Mandai and 1 anna of raiyati land in Mauza Naudiha and began to live in separate houses in Mandai. Similarly Jitan's son got 1/2 anna of raiyati land in Mauza Mandai and 1/2 anna of raiyati land in Mauza Naudiha and removed to separate houses where they commenced to live. Among the sons of Chamari himself the paragraph in question shows the following groups:
5. Hulas and Harakh got 8 annas of raiyati land in Mauza Udaipur and began to live there separately. Dhani and Mohar got 1 anna of raiyti land in Mauza Mandai and 1 anna of raiyati land in Mauza, Naudiha and began to live at Mandai.
6. Hardayal got 4 annas of raiyati land in Mauza Adra and settled there.
7. The above shows that at the alleged separation of 1853 seven different shares were made, one going to Gandouri's branch, one to Jitan's and the remaining 5 to the 5 sons of Chamari.
8. It is not denied that a large amount of property was acquired between 1853 and 1892, but, as has already been stated, the defendants' case is that though these properties were acquired jointly, these acquisitions took place after the joint family had separated and broken up into the 7 groups referred to above. In order to find out whether the separation alleged to have taken place in 1858 was a fact, it will be necessary to consider not only oral evidence produced to support this contention, but also the manner in which the properties in suit have been dealt with by the family. The only witness to prove the separation in 1858 called by the defendants is Gopal. It is significant that two more witnesses of the alleged separation were present in Court but the defendants did not examine them. Gopal is a grandson of Gandouri and as a near relation is well qualified to speak of what is supposed to have happened in 1858. Were it not that there are some inherent improbabilities in the scheme of separation and partition of 1858 deposed to by him, we should have regarded the evidence of this witness as of considerable value. The witness says that the lands were not measured at the time they were divided. He also says that the division was by calculation on the basis of annas but the income in annas was not considered. According to him Hulas, Harakh and Hardayal did sot get a share in the ancestral house nor were any grains divided He is unable to say why Mohar and Dhani remained joint nor can he say why Hulas and Harakh did the same. The evidence of this man is unconvincing and it does not appear how, if he is telling the truth, an equitable partition of the family property could have been made without regard being had to a proper and just apportionment of various shares and interests into 7 divisions. He also says that the rent receipts of raiyati lands were not produced at the time of this partition. The allegation of a separation and partition having taken place in 1858 is further discredited by a reference to Exhibit 16. It appears that the defendant Dayal Mahto was examined as a witness in one of the proceedings before the Assistant Settlement Officer on the 31st of March 1913 and his evidence before that officer was that this separation had taken place 30 years before. This would go to show that the idea of suggesting a partition in 1858, as stated in the written statement had not taken root till then. There are other grounds also for discrediting the story. Gandouri's sons representing their father should have received a share in the family properties of the same value as received by Jitan's sons. But paragraph 11 of the written statement shows that they received twice as much as the latter. This is incredible. The separation of 1858 is largely discredited by the manner in which the family has been treating the property supposed to have been separated and given to Hardayal, one of the sons of Chamari, at this partition. Gopal Mahto says Hardayal received his share at Adra and commenced to live there. If the story of separation in 1858 is true, on Hardayal's death the property at Adra would descend to Latoo. Latoo died leaving a widow. His interest in Adra, therefore, should have been inherited by his widow if he was separate from his uncle Dhani, the father of defendants Nos. 1, 2 and 3. But a registered kobala, Exhibit 2 (a), shows that Dhani sold this property on the 19th of March 1903. Latoo's widow is living and has raised no objection to it. No satisfactory explanation is offered how. Dhani could deal with this property if his separation had taken place in 1858, Again with reference to the acquisitions between 1858 and 1892 no satisfactory evidence is forthcoming to prove what was the contribution of the alleged sharers. This is strongly indicative of the plaintiffs' allegation that these properties were bought by the joint family with joint family funds. The evidence of Dayal and Chhohan to the contrary does not seem to us to be satisfactory. Not only no accounts are produced to show the contributions, but it appears that even the income from these villages was not appropriated by the sharers in proportion to their alleged interests as deposed to by Dayal and Chhohan. We agree with the learned Additional Subordinate Judge in the view that if the family had separated in 1858 the profits from these properties could not have been enjoyed by these sharers in the manner deposed to by these two witnesses. In fact, the whole scheme and arrangement of the manner of their enjoyment shows that they were being dealt with as properties belonging to a joint family rather than to sharers. The interests of the parties in these properties do not seem to have been in any way defined. This has been fully discussed at page 360 of the paper-book in the judgment of the lower Court and we accept the learned Subordinate Judge's conclusion that co-partners could not deal with properties in the manner they were dealt with by the descendants of Chamari between the years 1858 and 1892. All this strongly negatives the contention that there was a separation accompanied with partition of the family properties in 1858.
9. The evidence of the alleged division of these properties in 1892 is no less unsatisfactory. No document is forthcoming to prove such an event. It is exceedingly improbable that properties of considerable value could have been divided among the co-sharers without a proper adjustment of profits and losses. We are invited to rely on the evidence of Dayal, Chhohan and Nado in proof of; this partition. In the absence of documentary evidence, oral evidence of a most unimpeachable character alone can be relied upon to prove a transaction like this. The two parties to the division of 1892 were represented according to these witnesses, by Dhani and the plaintiff Uttim. Uttim was within his teens at the time and Chhatardhari almost an infant; but each party is alleged to have been in separate possession of various villages and the division of 1892 was supposed to be a step in terminating this arrangement by finally fixing the rights of each party in accordance with which possession was to be exercised. It is curious that no change in the possession of villages took place. In fact it would seem that the division of 1892 was neither a division of properties nor an adjustment of rights. They were to continue to hold possession without being answerable for the excess of profits. No mutual transfer of title was made. The evidence relating to this division of 1892 is discrepant. The defendant Dayal Mahto says that Uttim and Ramdhani called Panchaits from various villages and that it took the Panchaits two or three days to convene their meeting. This is contradicted by the evidence of Chhohan Lal who says that no Panchait took place and that there was no dispute to settle. He also says that no khasra showing the property allotted to each party was prepared nor was any list of such property made. Chhohan also says that nobody suggested that the matter of the partition should be put down in writing. This again is contradicted by the evidence of defendant Teka, who claims to have suggested to his father Dhani at the time of this partition that it should be reduced to writing to serve as evidence of the incident. The witness Chhohan is an old servant of the family and as such qualified to speak; bat we have no doubt that he has sided with the defendants and his evidence does not appeal to us as reliable. On a careful examination of all the oral evidence produced by the defendants relating to the alleged partition of 1892, we have no hesitation in holding that it is altogether unworthy of credence. This division of properties is also completely discredited by the manner in which the contending branches of the family have dealt with the properties in suit since 1892. But before discussing this part of the case attention may be called to the manner in which these properties were acquired between 1874 and 1892 and also how the two branches of the family stood in relation to each other. It is admitted that the numerous title-deeds by which these properties were acquired contain the names of members of the family represented by Dhani and Hulas. As an instance reference may be made to Exhibit D (8). By this document 4 annas Mokarrari interest in village Hudwa was acquired on the 17th of July 1877 for Rs. 550. This is a document in which Hulas and Dhani were both mentioned as vendees, but Dhani's name was penned through and the document was registered with the name of Hulas alone standing therein. Witness Chhohan, who is the scribe of this document, says that Dhani's name was penned through because he could not advance his share of the consideration money. It is argued that the scoring through of the name of Dhani taken with the evidence of Chhohan Lal ought to be sufficient to show that the brothers were separate. For reasons already given reliance cannot be placed on the evidence of this witness, which is further discounted by his admission in cross examination that the amount of the consideration money of 4 annas of Hudwa was not paid in his presence. It is contended for the defendants that the exclusion of Dhani's name from this deed should be regarded as in itself sufficient to prove separation. We are unable to accept this contention, as the theory of separation is completely negatived by Exhibit 1 which is a mortgage deed executed by Dhani himself hypothecating 8 annas of Hudwa on the 20th of June 1893 to one Ram Prasad. It is to be borne in mind that this deed was executed nearly a year after the alleged division in 1892 by which, according to the defendants, Dhani had no right, title or interest left in this village. The recital in this deed shows that the property was purchased by Dhani and that until re-payment of principal with interest he engaged not to transfer the mortgage property in any form to any other person. This document is of very great importance in the decision of this case and the defendants, knowing its damaging character, have essayed to explain it away by oral evidence given by defendants Teka Mahto and Dayal Mahto. The explanation is childish in the extreme. It is suggested that when proposals for a loan were made to the mortgagee Ram Prasad, he was informed by Dhani that he had no right, title or interest in the property, but the mortgagee expressed his willingness to advance the money inspite of this communication and the deed was registered. The explanation is further sought to be supported by the story that immediately after its registration Ram Prasad changed his mind and the transaction fell through, on which Dhani destroyed the document, It was contended for the appellants that it was for the plaintiffs to prove that the loan covered by the mortgage deed was a fact and that the money had passed from Ram Prasad to Dhani. There is no substance in this contention. The plaintiffs rely on a registered document, the contents of which have been duly proved. It was not for them to send for the account books of Ram Prasad. Rather the onus was on the defendants to prove by reliable evidence and the production of Ram Prasad's account books that the deed was in fact infructuous, We reject the explanation as unworthy of credit and consider that the transaction indicates that Dhani was dealing with Hudwa as a property which he could mortgage as the Karta of the family. In this connection attention may be drawn to Exhibit 2. This is a sale deed, conveying 8 annas Mokarrari right in Hudwa by one Bishen Prasad on the 16th of January 1879 for Rs. 950. The transferees mentioned therein are Ram Dayal, Anup, Uttim and Hulas. These men represent the contending branches of the family. The third document of importance with reference to Hudwa is Exhibit 3 (d) dated the 27th of March 1905. By this document the family obtained 2 annas of Mokarrari right in the village in the name of Kunj Behari, son of Uttim, for Rs. 564. It has been generally contended that if according to the plaintiffs' case Dhani was the Karta of the family his name should not have been scored through in Exhibit D (8), nor should his name have been absent from Exhibit 3 (d). If these contentions were sound one should have expected Dhani's name in Exhibit 2. It is not unusual in this country that properties are bought by a joint Hindu family in the name of a member or some members of the family and not necessarily in that of the Karta. In fact, the acquisition of a property bought in the name of one member of a joint family raises no presumption that it was bought as his separate property. This proposition has been upheld in Gajendar Singh v. Sardar Singh 18 A. 176; A.W.N. (1896) 23 : 8 Ind. Dec. (N.S.) 824. There are innumerable title deeds on the record of this case showing acquisition of properties mentioned in Schedule Ka of the plaint as having been made in the name of various members of the descendants of Chamari. These documents are inconclusive on the point that the branches of the family represented by Dhani and Hulas were separate. On the contrary there is one feature in the majority of these documents that largely supports the plaintiffs' case. It will be remembered that the case of the defendants is that ever since 1858 when Hulas removed to Udaipur his connection with Mandai Khurd ceased altogether and the cessation continued when he removed a few years after to Hudwa and lasted throughout till his death. The defendants claim the separation of 1858 to have been so effective that in mess, estate and worship no jointness of any kind was left and that Hulas ceased to have any connection with Mandai Khurd whatsoever. The case of the plaintiffs, on the other hand, is that the residence at Hudwa was only for the purposes of carrying on the business of the joint family and the home and residence of Hulas at Mandai Khurd remained unaffected. It is remarkable that in the majority of the title deeds between 1874 and 1890 when Hulks died his residence given is not Hudwa but Mandai Khurd, which is a strong piece of evidence supporting the case of the plaintiffs and negativing that of the defendants. We feel no doubt, therefore, that the acquisition of property by the descendants of Chamari between 1874 and 1892 was joint acquisition and not in partnership, as has been contended for the defendants. Attention has already been called to Dhani having mortgaged 8 annas of Hudwa only a year after the alleged division of 1892. It is unnecessary to give in detail the various deeds and documents in which between 1893 and 1909 the names of the contending branches of the family occur dealing with properties in various ways. These, as we have said before, are, however, inconclusive, but there are certain transactions which the defendants have attempted to explain away, but they do nonetheless point to the conclusion that the descendants of Chamari were joint. In this connection Exhibit 8 deserves consideration. It appears that a deposit of Rs. 200 was made in the Chota Nagpur Bank in the joint names of Teka and Uttim some time about 1895. In 1897 Uttim and Teka jointly drew a cheque in favour of the latter to the full amount of Rs. 200. This cheque is Exhibit 8, and shows a joint account in the names of the plaintiff Uttim and the defendant Teka. The explanation offered is that the idea was to buy a house at Hazaribagh, the district headquarters, for the use of the two branches of the family of Chamari and that the deposit was made not as members of a joint family but as representatives of two families that had separated. It is curious that if this was the intention, the money should have been allowed to remain in the Bank for two years without any effort to buy a house; nor is there anything on the record to show that a house was, in fact, bought at Hazaribagh at any time. The explanation as to why Uttim should have drawn the Rs. 200 from the Bank on a joint cheque is scarcely credible. The story is that one Abilakh Singh executed a mortgage bond in favour of Dhani, Uttim and one Domar, but Uttim had not any money and, therefore, requested his uncle Dhani to pay the money (Rs. 100) for him and he would pay him off by a cheque on the Bank and hence the cheque to Teka. Like the other explanation of the defendants this also does cot hold water. Evidently the share of Dhani in the mortgage was to the extent of Rs. 100 and so also of Uttim. Both uncle and nephew had Rs. 200 lying in the Bank. The simplest course in the circumstances would have been to pay the money out to Abilakh by a joint cheque drawn by Uttim and Teka. The parties were at Hazaribagh at the time and there is nothing on the record to show why this easy course could not be adopted. The next transaction proving the family to be joint is Exhibit 1(6) dated the 4th May 1903. This is a mortgage bond in favour of the Chota Nagpur Bank hypothecating Pucca 5 annas 4 pies out of the entire 16 annas of Mauza Mandai Khurd for the sum of Rs. 1,600 with interest at one and a half per mensem. The striking feature of this document is that the executants are Dhani, Ram Dayal, Teka, Uttim and Alak. The recital in the bond is that the property in question had been in the joint possession of each of the executants and that the same was purchased by themselves. This is a very damaging document to the defendants' case but here again an explanation is put forward. It is suggested that Uttim had, in fact, never exercised any act of possession over Mandai Khurd, nor had he, in fact, any right, title or interest in the same, but that he was invited to assume the role of an executant in order to satisfy the Bank inasmuch as the title deed of the family, dated the 15th of May 1883, stood in the name of his father Hulas along with that of Dhani Mahto. An attempt to prove this story has been made by the evidence of defendants' witness Chandi Prasad. This man is a Pleader's clerk at Hazaribagh but claims to have been the law agent, whatever that may mean, of the Chota Nagpur Bank and states in his evidence that on an examination of the title deeds he found that Hulas Mahto's name appeared in one of them, which he reported to the Managing Director who thereupon insisted on Uttim, the son of Hulas, joining in the execution of the bond. The Managing Director of the Bank would have been a more convincing witness to prove all this but he has not been called. Moreover, if Uttim was, in fact, separate from his uncle Dhani and had ceased to have any right, title or interest in the mortgaged property, he would have refused to join in executing a document that would throw no small ultimate liability upon him personally. On the other hand as a member of the joint family it was perfectly natural for him to have taken part in the execution of this deed. Exhibit 3(d) is also a document of considerable relevancy in destroying the defendants' case of separation. A Mokarrari of 2 annas of Hudwa was obtained in the name of Kunj Behari, son of Uttim, by this document on the 27th of March 1905, on a Nazrana of Rs. 564 with an annual jama of Rs. 2 as rent reserved. It has been strongly contended that this was a separate acquisition by Kunj Behari. The document however, proves the contrary. It shows that the whole of Nazrana of Rs. 564 was not paid in cash but the major portion of it was set off against the money due to the family under several heads. They are as follows:
Rs. 67 due to Hulas on a bond, dated the 23rd of June 1888.
Rs. 120 due to Uttim, Mahto and Ram Dayal Mahto on a bond, dated the 17th of April 1888.
Rs. 116 due to Uttim, Chhatardhari and Dhani on a bond dated the 16th of December 1902.
Rs. 116 on account of rent of raiyati jote in Mauza Hudwa due to Uttim and Ram Dayal.
10. If Kunj Behari, a son of plaintiff Uttim, was separate from Dhani and his descendant?, it is incredible that monies due to separated branches of the family of Chamari could have been allowed to be set off to make up the consideration for a
11. Mokarrari taken by Kunj Behari. No satisfactory explanation is forthcoming to reconcile this transaction with the theory of separation. Exhibit A (5) is also a document which is instructive. It purports to be a mortgage of 4-annas Pucca share out of the entire 16 annas of Mauza Polandu by Chhatardhari on the 24th of April 1904. This was a village which according to defendants was in possession of Dhani's branch of the family and according to the alleged division of 1892, the plaintiffs' branch bad ceased to have any kind of right in it. It is admitted by the plaintiffs that the consideration money relating to Exhibit A (5) never passed. The executant Chhatardhari explains it by saying that he executed this deed to frighten the uncle, Dhani, into a separation and division of the family property. Whether this transaction was real or otherwise it is strongly corroborative of the plaintiffs' case of jointness. On no other hypothesis could a document like this have been executed. The cumulative effect of all these documents is clearly in favour of the view that the contending branches of the family of Chamari have been joint and the plea of separation effected in 1858 and the division or adjustment in 1892 is unacceptable. It is contended for the defendants, however, that there are other documents on the record which show that the two families could not have been joint. We will now proceed to the consideration of these documents:
12. Exhibit H (1), dated the 24th of February 1888, is a plaint in a rent suit instituted by Ram Dayal against Hulas in respect of land in Udaipur. Similarly Exhibit H (2) is a plaint, dated the 7th of July 1890, in another rent suit by Ram Dayal against Uttim and Chhatardhari in respect of land in the same village. It is Contended for the appellants that if the two families were joint, it is impossible that Ram Dayal could have sued his uncle Hulas and his cousins Uttim and Chhatardhari for rent. The argument on the face of it is impressive, but an examination of the documents on the record shows that in each instance Ram Dayal was suing as Thikadar of the village and the plaintiffs' contention is that these two cases were collusive and were instituted with the object of creating tenancy rights in lands that on the expiration of leases would otherwise revert to the proprietor, the lessor of Ram Dayal. This contention is completely borne out by an appreciation of what happened in these two cases. As regards the first the plaint was filed on the 20th of February 1882, but was ordered to be struck off on the 17th, of April same year. As regards the second case the evidence of collusion is complete. Execution was taken out and some Barai crops amounting in value to 8 annas were attached and held in deposit by the Nazir. There was a deficit of 12 annas in respect of the security of costs for execution. This was never paid and the case was struck off for want of prosecution (vide Exhibit 1). It may also be mentioned that the suit was not contested but a petition of admission was filed. During the attachment, however, a petition of objection on behalf of one Bhatoo Mahto was filed. This Bhatoo was successor of Ram Dayal in the lease of the village, and charged the parties with collusion alleging that the crops attached were on 4 bighas of land out of 5 bighas of malik's zerait lands (Manjihas). The objection filed by Bhatoo Mahto was decided and the Court held that the real question raised was not so much for the crops as for the establishment of title to the land. The outgoing lessee, it is common experience, is anxious by all devices to keep as much of the leased property in his hands as he can after the expiration of the lease. In the present case the whole attempt seems to have been to retain possession of the Zemindar's land by creating title in Uttim and Chhatardhari as its tenants. We are not at all satisfied that these two suits were genuine and that any inference of separation can be drawn from them. On the contrary it seems that it was a clear attempt on the part of Ram Dayal in the latter of these two suits to keep the malik's zerait land in the possession of his own family through Uttim and Chhatardhari. The most important document relied upon by the defendants, however, is Exhibit X (4) which is a plaint, dated the 12th of January 1900, of a suit instituted by Uttim and Chhatardhari against Horil Kumhar and others, Paragraph 2 of this plaint runs as follows: "The father of the plaintiffs and the plaintiffs were joint and their father was managing member of the family. The money covered by the bond was appropriated by the joint family. After the death of their father the plaintiffs by right of survivorship held possession of all the properties left by their father." It cannot be denied that this paragraph, rightly interpreted, is a dear statement pointing to Hulas's separation from Dhani. The learned Vakil for the appellants has offered several explanations of paragraph 2 of the plaint under notice. One is that as the bond on the basis of which this money suit was instituted stood in the name of Hulas only, and with a view to avoid any complicated issue of jointness or separation with Dhani paragraph 2 was inserted in the plaint. The explanation is not a very convincing one and were i not that there are registered documents of dates subsequent to this plaint showing jointness of the contending parties, we should have felt disposed to regard the admission in the paragraph as a much more serious defect in the plaintiffs' case. We cannot, however, regard this as in any way determining the matter, as the numerous documents which have been already discussed in this judgment conclusively point to the family having remained joint subsequent to 1892 and even after 1900 when the plaint Exhibit H (4) was filed. We, therefore, think that paragraph 2 of the plaint (Exhibit 4) is not a true statement of fast and it may be that the explanation offered is somewhere near the truth. In the course of the argument of both sides reference has been made to road-cess returns and some rent receipts. We do not regard them as conclusive to support the case of the plaintiffs or of the defendants. On a careful examination of all the facts and circumstances of this case we are satisfied that the learned Subordinate Judge was right in holding that the plaintiffs and defendants were members of a joint Hindu family at the time of the institution of this suit. We also agree with the lower Court; that 12 annas of Hudwa, the Mokarrari of Kanchanpur, one-third of Mandai Khurd, 16 annas of Polandu and 9 1/2 annas of Patra are joint. This is amply proved by the title-deeds standing in the names of the various members of this family to which an exhaustive reference has been made in the judgment of the lower Court. In fact we have no doubt that the family having remained joint till the institution of this suit, the properties mentioned in Schedules Ka and Kha of the plaint and also Udaipur are joint. It was suggested in the course of the argument of the learned Vakil for the appellants that with reference to such properties as were admittedly in the sole possession of the defendants, the principle of exclusion of the plaintiffs as contemplated in Article 127 of the Limitation Act ought to apply. We do not consider that the findings at which we have arrived permit the consideration of such exclusion. We have held the family to have been joint and the fact that Hadwa and Udaipur were in charge of the plaintiffs and the other properties in that of the defendants will not prevent the plaintiffs from getting the relief they seek. The authority of the case of Bidhata Roy v. Ram Charitra Roy 6 C.L.J. 651 at p. 655 : 12 C.W.N. 37 : 3 M.L.T. 33 is conclusive on this point.
13. The question of the inclusion within this suit of the properties mentioned in paragraph 5 of the written statement is easy to dispose of. Of these 8 annas of the scattered raiyati land in Mauza Udaipur have been included by an amendment in the plaint. As regards the rest one was a mortgage lien which has been redeemed, and the rest are held in share with strangers excepting some cattle in the possession of the plaintiffs the inclusion of which has not been pressed. As regards the properties held jointly with strangers the plaintiffs were not bound to include them in the present action. For this proposition reliance is rightly placed on Kailash Chandra Das v. Nityananda Das 3 Ind.Cas. 21 : 11 C.L.J. 384, Jogendra Chandra v. Srish Chandra 1 Ind. Cas. 110 and Purushottam v. Atmaram Janardan 23 B. 597 : 1 Bom. L.R. 76 : 12 Ind. Dec. (N.S.) 399,
14. The result is that the appeal is dismissed with costs.
15. As regards the loan of Rs. 3,995 covered by Exhibit A-6, we direct that this be regarded as family debt and should be taken into account when the division of the family property is made. This is agreed to by the learned Vakil appearing for the defendants.
16. We wish to add that everything that could be said on behalf of the appellants in a somewhat lengthy and complicated case has been very clearly and ably put before us by the learned Vakil who appeared on their behalf.