1. The one point seriously pressed before us in this case is that the decree of the Courts below should have been one without specification of the plaintiff's share in the property. The other points have no force.
2. It appears that the plaintiff Banwari Rai and the defendants Nageshar Rai and Kauleshar Rai come from the same family, being the descendants of one Ramphal Rai. The plaintiff alleged in the plaint that a certain property detailed at the bottom of the plaint was the joint family property of the parties (among others), but that the defendants treated the same as their separate property. He asked for a declaration that in the aforesaid property his share was one-half. In the alternative he asked for possession over his half-share.
3. The Courts below, that is to say, the Court of first instance and the lower appellate Court, found that the plaintiff was still joint with the defendants, although the plaintiff was living and having his food separately from the defendants. A learned single Judge of this Court dismissed the appeal by the defendants.
4. In the Letters Patent appeal it is contended that if the family be joint, the declaration should have been confined to the fact of the jointness of the property and the plaintiff's share in the property should not have been specified.
5. There can be no doubt that this contention is correct. This point was never taken up by the defendants till the second appeal was filed. If the point had been taken at an earlier stage we are sure the Courts below, namely the trial Court and the lower appellate Court, would have given effect to it.
6. In a joint family no coparcener can say that he has a specific share in the property. His share is liable to fluctuate from time to time. As there is no indication in the plaint that the plaintiff wanted to come out of the family and to separate his status, his prayer for a declaration that his share is one-half in the property should not have been granted.
7. In the result, we allow the appeal in part, modify the decrees of the Courts below by confining the declaration in the plaintiff's favour to this that the property in suit is joint family property belonging to the plaintiff and the defendants. As the point was never taken till the matter came up before the High Court, we direct that the parties shall pay their own costs at both the hearings in this Court.