M.P. Mehrotra, J.
1. This second appeal arises out of a suit for partition. The plaintiff claimed 5/8th share in the house in dispute. Both the courts below have decreed her claim by a preliminary decree. Now the contesting defendants, namely, defendants Nos. 4 and 5 and their mother Smt. Ram Devi have come up in the instant appeal against the judgment and decree of the courts below. It seems that Smt Ram Devi had not contested the claim in the trial court and did not join the appellants in the lower appellate court but she has also been impleaded as the appellant No. 2 in the instant second appeal.
2. In brief, the plaintiff alleged that one Pooran Mal was the original ancestor and at his death he left four sons, viz., Mohan Lal, Shiv Sahai, Heera Lal and Mangal Sen, Pooran Mal left the house in dispute and the plaintiff's allegation in the plaint is that each son had 1/4th share in the said house on the death of Pooran Mal. It is argeed between the parties that Hira Lal was the first to die in 1917, thereafter Shiv Sahai died and thereafter Mohan Lal died in 1938. Mangal Sen was the last to die on 18th Jan. 1958. The plaintiff-respondent No. 1 is the daughter of Mangal Sen. Heera Lal on his death left his widow Smt. Ram Dulari and the latter died issueless in 1946. Shiv Sahai on his death left Kalka Prasad and Kalka Prasad at his death left his widow Smt. Ram Devi and his two sons Ram Gopal and Nathu Ram. who are defendants Nos. 4 & 5 the appellants Nos. 1 and 3 before me. Mohan Lal on his death left his widow Kokla and his son Girja Shanker. Subsequently, Girja Shanker also died and left his widow Smt. Ganga Devi and his son Uma Shanker, who are respondent Nos. 2 and 3 in this appeal. The plaintiff Smt. Maya Devi claimed that she inherited 5/8th share from her father Mangal Sen. Mangal Sen's 5/8th share was said to be comprised of his original 1/4th share in the property another 1/4th share inherited on the death of Smt. Ram Dulari widow of Hira Lal in 1946 and 1/8th share sold by Smt. Kokla widow of Mohan Lal and her son Girja Shanker by a registered sale deed dated 21st of July 1947.
3. The defendants Ram Gopal and Nathu Ram contested the suit on various grounds. Inter aha, it was submitted that the four sons of Pooran Mal constituted a joint Hindu Family and there was separation between them only about 25 or 26 years back and even then, so far as the house is concerned, it remained joint family property. It is not disputed that in case this allegation be correct then the said defendant's share could be 1/3rd.
4. The courts below gave a finding that the sons of Pooran Mal were separate and the property in question was owned in 1/4th share by each of the four sons of Pooran Mal
5. Sri S. P. Srivastava, learned counsel for the appellants, has contended that the said finding recorded by the courts below, is without any evidence to support it and is bad in law. He contends that there is a presumption of jointness in a Hindu family and the courts below have not recorded any finding as to when did the sons of Pooran Mal separate, and in such a situation it cannot be said that Hira Lal, when he died in 1917, died in a state of separateness. Learned counsel has next contended that the alleged sale deed dated 21st of July 1947 said to have been executed by Smt. Kokla and her son Giria Shanker in favour of Mangal Sen was not binding on his client and in fact it was not within his knowledge. Any admission contained in the said document could in no way be used to the prejudice of his client. Lastly, counsel contended that the written statement was sought to be amended by an application for amendment but the trial court wrongly refused the said application. Counsel placed reliance on the following cases-
(1893) ILR 15 All 339; (1894) ILR 16 All 369; : AIR1954All801 ; : 2SCR933 .
6. On the other hand Sri S. N. Agarwal, learned counsel for the plaintiff-respondents contended that the findings recorded by the courts below were pure findings of fact and as such the court has no jurisdiction to interfere in the instant second appeal. He has next submitted that there is evidence on the record to support the findings recorded by the courts below. He has placed reliance on : AIR1967All221 .
7. It seems to me that so far as the objection to the rejection of the application or amendment of the written statement is concerned, it cannot be argued that the trial court was not justified in rejecting the said application. Pleas of adverse possession, estoppel and acquiescence were sought to be taken after the close of the evidence and the trial court refused to allow such an application. In my opinion the rejection was justified. It will be seen that on the one hand the contesting defendants were claiming a continuing ownership of the joint family over the property in dispute on the other hand the pleas which were sought to be raised were a negation of the aforesaid plea of jointness and new pleas which needed evidence were being raised at the time when the evidence of the parties stood closed. I, therefore, reject this contention raised by the learned counsel for the appellants.
8. Now coming to the other submissions, it seems to me that while it is a fact that the oral evidence tendered on behalf of the plaintiff-respondent may not be said to be absolutely satisfactory inasmuch as the plaintiff, due to her young age, could not be expected to have a personal knowledge of the date of actual separation and her witness P. W. 3 Jorawar Singh has undoubtedly made some confusing statement, still, it cannot be said that the courts below have rendered their findings on no evidence whatsoever. It is obvious that when branches have been separated over long periods, it is not always possible to have a direct evidence of the actual date of partition, that will be an impossibility in many cases. However, it has been emphasised in the case law that the course of dealing with the property is itself material to show that there has been separation or not. Counsel placed reliance on : AIR1954All801 and in the said case itself it has been clearly observed (at p. 807) :
In order to prove separation, it is not enough to show that different members of the family lived, i.e. resided and messed separately. It is necessary to establish that either there was a partition of the joint family property by metes and bounds or at least that the members of the family dealt with it as if they had separate defined shares therein.'
9. Now applying this test it seems to me that the courts below were justified in returning a finding that the four sons of Pooran Mal had separated. The courts below have placed a great reliance on the recitals in the sale deed dated 21st of July 1947, which is exhibit No. 2. In the said document it is clearly recited that the vendors had 1/8th share in the property in dispute and they were transferring the same in favour of the vendee, Mangal Sen. It will be seen that Girja Shanker had a son Uma Shanker at the time when the sale-deed was executed and he, too. would have 1/8th share in the property. The said share of Uma Shanker was not being sold. Therefore, the executants of the document sold 1/8th share in the said house. This document is important because it clearly shows that in 1947 when there was no dispute between the parties, by a registered document the branch of Mohan Lal clearly admitted that 1/4th share in the house belonged to it. It is obvious that if Hira Lal in 1917 had died in a state of jointness as contended for by the learned counsel for the appellants, then the vendors would have claimed not 1/8th share but 1/6th share in the property. There was no reason why they should have acted against their own interest if iointness as alleged by the contesting defendants were a real fact. It is true that the recitals in the sale-deed are not binding on the non-executants but this is not to say that the sale-deed is not admissible in evidence on the controversial point. When there is a controversy as to whether there has been separation or not in a family, the fact that sale-deeds in the past were executed by members of a family with recitals which would only be consistent with separateness and not iointness, then such documents are undoubtedly admissible to prove separateness. In the instant case it has to be seen that the document was executed as far back as 1947. The suit itself was filed in 1968. The document was never challenged by the contesting defendants and I have not been impressed with the submission that they were really not aware of the execution of the said document over a period of 21 years till the date of the suit. In my opinion, therefore, the courts below were justified in placing a big reliance on the said document for their finding that the four sons of Pooran Mal were sepa--rate from each other and each had 1/4th share in the property. P. W 3's statement is there that after the death of Pooran Mal his four sons were separated. This clearly is a statement in denial of the defendants' allegation that they were joint. By implication it is also a denial of the suggestion that Hira Lal might have died in a state of jointness, because if that were so then the witness's statement that all the four sons were separated would not be consistent with the fact of Hira Lal being joint. The witness's statement, however, is that all the four sons were separated. It is true that this witness has undoubtedly made confusing and sometimes, even inconsistent statements, but the courts below were entitled to place reliance on the witness's statement or on such parts thereof as seemed to them to be consistent with the documentary evidence on the record. It cannot be said that the courts below went wrong in law in assessing the evidence as they did. In this view of the matter. I accept the learned counsel for the plaintiff-respondents' plea that the appeal stands concluded by findings of fact and no question of law arises to warrant interference in the second appeal.
10. So far as the cases cited at the bar are concerned, in my opinion (1893) ILR 15 All 339 and (1894) ILR 16 All 369 (supra) have no relevance because in the instant case it has not been shown that in 1947 when the sale deed was executed there was jointness in the family. Actually, the said deed is indicative of the fact that prior to its execution, there had been separation between the parties and different branches of Pooran Mal's family had come to own the property in definite shares. It is not a situation where it can be said that an undivided share in the joint family property was being sold.
11. So far as the Supreme Court case is concerned, it has laid down that the intention to separate must be communicated to the other parties concerned. In the instant case we are not concerned with any such situation. If the sale-deed of 1947 were to be treated as the first indication of the vendors to separate, then the said question might be having some relevance but I have not interpreted the said document in that manner. In my opinion the said document was not indicative of an intention to separate after discarding joint family status. In fact, it was a document which proved that there had already been separation in the family and definite shares had come to be owned by different branches. In this view of the matter, we are not concerned with the situation where for the first time a coparcener is trying to express his intention to separate. Therefore, in my view this Supreme Court case is not applicable to the facts of the instant appeal.
12. This appeal accordingly fails and is dismissed. In terms of the stay order dated 4th Dec. 1975 the plaintiff-respondent No. 1 will be entitled to withdraw the amounts which were deposited by the appellants in compliance with the said stay order. In the circumstances, the parties shall bear their own costs.