Muhammad Rafiq and Piggott, JJ.
1. The plaintiffs in this case alleged that they were joint owners along with the defendants of certain property, specified in the plaint itself, and that the extent of their share was two-fifths of the whole. They sought a declaration of their title and of the extent of their share. The suit was resisted upon various pleas. On the merits, the principal point taken by the defendants was this, that the joint family of which they themselves and the plaintiffs had at one time been members had broken up long before the institution of the suit, that all the joint family property had been divided amongst the members of the family, that the plaintiffs were not the owners of a two-fifths share in each of the properties specified in the plaint, but were only the owners of a smaller share in some of the said properties, according to the records in the village papers. Various issues were framed in the court of first instance, but the learned Subordinates Judge tried only the main issue of fact. He found in favour of the defendants that there had been, long prior to the institution of the suit, a complete division of the joint family property between the members of the said family and that the plaintiffs were not the owners of the two-fifths share in each of the properties specified in the plaint which they claimed. On these findings he naturally dismissed the suit. In appeal the learned District Judge has found that there had never been any partition of the joint family property as between the plaintiffs and the defendants that the properties in suit, as specified in the plaint, belonged to the joint family; that the plaintiffs on the date of the institution of the suit were jointly in possession of the same along with the defendants, and that the share which the plaintiffs would be entitled to take on partition in each of these items of property was two-fifths. Upon these findings he has given the plaintiffs a decree for a declaration as sought by them. In the memorandum of appeal before us there is a plea assailing the findings of fact recorded by the learned District Judge, but this could not be pressed. There remain two pleas. The first of these is based upon an interpretation which the defendants appellants ask us to put upon the judgment of the lower appellate court. The suggestion is that the learned District Judge has found that all the parties to this suit, plaintiffs and defendants, were and continued to be up to the date of his decree members of a joint undivided Hindu family. Upon this, the plea is taken that no single member of a joint undivided Hindu family can be said to be the owner of any specified share in any one item of the property belonging to the family. As a proposition of law this is perfectly correct, but we do not think that the learned District Judge has found, or intended to find, what the appellants assert. Our attention has been drawn to the wording of the plaint. It must be said that the plaintiffs themselves have not made it as clear as they ought to have done whether or not it was their case that the status of joint family membership as between them and the defendants had come to an end prior to the institution of the suit, or was ended by the institution of the suit itself, that is, by the presentation of this plaint. If, however, the defendants considered that they were put to a difficulty in meeting the plaintiffs' suit by reason of any vagueness of pleadings on the part of the plaintiffs, they could have asked the trial court to insist upon such amendment of those pleadings as would clear up any doubtful point. In any case it is quite clear that the presentation of a plaint of this sort, asking the court to ascertain and to declare the share of plaintiffs in property which had formerly belonged to a joint family of which the plaintiffs and the defendants were members, would dissolve the status of joint family membership as between the parties to the litigation. There is therefore no force in the first plea of this memorandum of appeal.
2. The second plea, as taken, is to the effect that the suit is obnoxious to the provisions of Section 42 of the Specific Relief Act (No. I of 1877), because the plaintiffs could have sought a further relief, by way of partition of what they alleged to be the joint family property. At a first glance there seems to be a good deal of force in this argument. We must, however, note, to begin with, that nothing was said about Section 42 of the Specific Relief Act in the pleadings in either of the courts below. Secondly, it has been pointed but to us on behalf of the plaintiffs respondents that the whole of the property in suit is landed property assessed to revenue. A suit for the partition of this property would therefore be governed by the provisions of Order XX, Rule 18, Clause 1, and Section 54 of the Civil Procedure Code. Although, therefore, upon a suit for the partition of this property the decree passed might have required to be somewhat differently worded so as to be brought) into strict conformity with the rule already referred to, it is clear that all that the Civil Court could do in respect of this particular property would be to ascertain the share of the plaintiffs and to give them a decree declaring the amount of that share as against the defendants, leaving the plaintiffs to take any steps they might think proper for the actual partition of their share in the Revenue Court, in accordance with law, as laid down by Section 54 of the Code of Civil Procedure. We think, therefore, that there is no real substance in this plea and that we ought not to give effect to it at this stage. It has also been contended before us, although the point is not taken in the memorandum of appeal, that if we were to deal with this suit as in substance a suit for partition of joint family property, we ought to consider whether there remains any other property belonging to the joint family which has not been brought into the suit. There was no plea to this effect in either of the courts below and, as a matter of fact, the position taken up by the defendants there was hopelessly inconsistent with any such plea. While fully admitting the principle of law pressed upon us on behalf of the appellants, we can only say that there are no materials before us to justify our finding that there is any other property belonging to the joint family of which the parties to this suit were formerly members, which has not been made the subject matter of this litigation. Thy appeal therefore fails upon all grounds and we dismiss it with costs.