1. The genaological tree which is set out in the judgment of the Court below will explain the relationship between the parties. The plaintiffs are some of the members of the family of Chiranji Lal. They sue as against Musammat Debi, the widow of Narain and mother of Gopal Das and they also implead other members of the family who have not joined them in the suit. Their case is that the family was joint family and that the property situated in the three villages Bai-anda, Marhakar and Garhi Chandraman is the joint family property, that Musammat Debi as widow of Narain and mother of Gopal Das had no title whatsoever to any share therein, that she only had a right of maintenance, that her name was entered in the Government records for the purpose of consolation only, that by reason of that entry she had sued for and obtained a decree for profits of a portion of the estate and that she had applied for partition of another portion. The plaintiffs, therefore, came into Court asking for a declaration that the property was the property of the joint family and the defendant, Musammat Debi, had no title whatsoever thereto. In asking for this relief the plaintiffs also said that if in the Court's Opinion they were not in legal possession of the property, then the Court might put them into possession and that they were ready and willing to pay the Court-fee in respect thereto. Musammat Debi's defence was that 'her husband, Narain, had separated from his brother in his life-time, that she held the properties of Baranda and Marhakar as the mother of a separated Hindu. In regard to the property of Grarhi Chandraman she pleaded that the property was her stridhan, that at the time of her marriage her grand-mother and brother had gifted this property to her, but that the deed of gift was executed in the name of her husband, Narain, in whose name the property stood and after him in the name of Gopal Das, his son. She also pleaded that the plaintiffs were not in possession and were not entitled to a declaration in view of the terms of Section 42 of the Specific Relief Act. Four issues were framed, one as to the value of the property with which we are not concerned. Issue No. 2 is whether Section 42 is a bar to the suit. Issue No. 3, is the property in suit joint property of the parties or separated property? Issue No. 4, did defendant get Garhi Chandraman property from, her mother and her brother and is it ancestral property? The defendant gave evidence as to the alleged separation. The Court below rejected that evidence as valueless and held that the family was a joint family. In respect to the properties in Baranda and Marhakar it held that they were joint family property. In respect to the property in Garhi Chandraman it held that this property had been gifted to Narain, that it was his separate property, that it descended to his son and from his son to the defendant, Musammat Debi. It held, that by reason of the decree for profits which Musammat Debi had obtained (which profits had been paid by the plaintiffs) and also by reason of the fact that Garhi Chandraman was in the possession of the defendant and not of the plaintiffs, that the plaintiffs' suit for declaration was barred by Section 42 of the Specific Belief Act and, therefore, it dismissed the suit in into. The plaintiffs have come here on appeal. It is urged that in view of the circumstances of the case and the fact that the plaintiffs are what has been termed collecting co-sharers i.e., co-sharers who collect the income from the tenants, that it was unnecessary for the plaintiffs to sue for anything else beyond a declaration at least in respect to the two villages, Baranda and Marhakar. It is urged that even if that were necessary, the plaintiffs had all along been perfectly willing to pay necessary Court-fees and that their suit ought not to have, been dismissed without giving them a chance of paying the necessary fee. In regard to Garhi Chandraman it is urged that as the gift to Narain had been made at the time of the marriage, the property belonged to the joint family because the expenses of the marriage had been met out of joint family funds. On behalf of the respondent it has been urged that the evidence on the record clearly proves the separation of Narain from his brother and that on this ground also the plaintiffs' suit ought to have been dismissed. In so far as the actual facts are concerned, we have no hesitation whatsoever in agreeing with the Court below that the alleged separation between Narain and his brother is not proved. A perusal of the evidence is quite sufficient to show that the statement of the witnesses is not worth the paper on which it is written. The presumption is in favour of jointness and it was for the defendant to prove the alleged separation. In our opinion she has utterly failed to do so. In regard to the village Garhi Chandraman we cannot accept the argument which is now put before us. The gift was clearly a gift in the name of Narain. The fact that Narain's marriage expenses were met out of joint family funds gave the joint fa.mily no lien 011 the gifted property. Of course it was perfectly possible for this gifted property to have been treated by thefamilyas such. But if thiswere the case it was the plaint-tiffs' duty to prove it by evidence. Prima facie the gift to Narain made Narain the sole owner of the property, which would descend to his son and on hi3 son's death to his widow. Prima facie it was not joint family property at all. It was for the plaintiffs to prove that it had been treated as such. But on that point they have not given any evidence whatsoever. In regard to this village we are of opinion that the decision of the Court below was perfectly correct. There remains the question of Section 42 of the Specific Relief Act in respect to the villages Baranda and Marhakar. Musammat Debi sued for her share of the profits of one of these villages. Her name being recorded in the Government papers the Revenue Court was bound to decree her claim. The fact that she sued is an admission that the opposite party was collecting the income of the property. Therefore, in so far as legal possession of a zemindar is concerned, the actual possession was in the hands of the plaintiffs. We do not think that the mere fact that Musammat Debi sued and obtained her share of the profits from the opposite party would be sufficient reason for forcing the plaintiffs to bring a suit for possession. The question of title could only be decided'in one way in the Revenue Court by reason of the provisions of the Tenancy Act.' Otherwise it would have been open then to the plaintiffs to contest Musammat Debi's title to the share which stood in her name. This is one of those cases in which it is difficult to say which party is in possession. But in any case the action of the lower Court was wrong in dismissing the suit in view of the fact that the plaintiffs had in their plaint offered to pay the necessary Court-fee. In the circumstances of the case, however, wo are of opinion that it was unnecessary for the plaintiffs to sue for anything more than a declaration. The result, therefore, is that the plaintiffs' suit will be decreed in respect to the properties in Mouzas Baranda and Marhakar i.e., the declaration for which they ask is granted. In regard to the property of Garhi Chandramati the suit will stand dismissed. Parties will pay and receive costs in proportion to failure and success in both Courts.