JUDGMENT

K. RAMASWAMY, J.:—This appeal by special leave under Art. 136 of the Constitution of India arises against the decree and judgment dated February2, 1978 in First Appeal No. 10 of 1966 of the M. P. High Court at Gwalior Bench. Krishna Rao alias Lala Saheb, for short "respondent" laid the Civil Suit No. 9-A of 1962 before the Addl. District Judge, Gwalior for partition of the plaint schedules 1 to 3 properties in equal moiety and allotment of one such share to him. Pending this appeal he died and his legal representatives are on record. The Trial Court by its judgment and decree dated January 31, 1966 granted preliminary decree for partition of half share in schedules 1 and 2 and half share in the movable property, namely compensation amount, jewellery and utensils as found in the inventory prepared by the Nazir except the stridhana property of 3rd defendant i.e. mother of appellants Nos. 1 and 2. The High Court while confirming the decree of the Trial Court directed the respondent to bring into hotch potch his jewellery and the appellants to have a half share therein and dismissed the appeal and the cross objections.

2. The admitted facts are that one Ghanshyam Sadashiv Baxi Saheb, for shortGhanshyam-1 was the common ancestor. He had two sons by name Yesaji-1 and Phatoji. Yesaji-1 had a son by name Ramakrishna, whose son was Yesaji alias Baba Saheb for short Yesaji-2. Yesaji-2 rendered meritorious military service to Ranaji Scindhia and in recognition thereof the Raja of Gwalior granted permanent Jagir of Chandupura village under Ex. D-20, together with the buildings situated in 100 Bighas of land and the residential Bada with right of enjoyment and succession from generation to generation. By virtue thereof the ownership, possession and enjoyment was continued successively for seven generations up to Dwarkanath by rule of primogeniture. Ghanshyam alias Tatya Saheb for short Ghanshyam-2 had two sons by name Dattatraya Rao alias Bapu Saheb for short Dattatraya-1 and the respondent, Dwarkanath was the son of Dattatraya-1. The appellant, Dattatraya alias Prakash and Pradip alias Anil, appellants Nos. 1 and 2 are sons of Dwarkanath. Aruna Bai, third defendant is his widow. Ghanshyam-2 died on June 20, 1909. Dattatraya-1 died on February 6, 1926 and Dwarkanath died -on May 19, 1956.

3. Dwarkanath being minor on his suecession to the estate the court of wards took over management and the respondent was appointed as a Superintendent. On death of Dwarkanath since appellants 1 and 2 were minors Aruna Bai, their mother, initially managed the estate with the assistance of the respondent. Subsequently the respondent came into full control and management till date of suit. The respondent filed the suit for partition in the year 1962 pleading that all the plaint schedules 1 to 3 properties are coparcenary and he is entitled to a half share therein. The respondent received maintenance from Jagir income at the rate of Rs. 125 / - per month.

4. In the written statement, the appellants, while admitting the genealogy, their residential house at Gwalior as ancestral, they disputed the nature of the properties as joint family status of the respondent and the, appellant as coparceners. They admitted that till death of Ghanshyam-2 in 1909 the family was joint and thereafter they were separated by mess and residence in the year 1929. The house M No: 626 Holka No. 101 at Gwalior was the residential old house but the Verandah and two rooms on both sides were constructed by Dattatraya-1. The shops in the back side of iron gate at Kampoo Road were not existing during lifetime of Ghanshyam-2, but the lands were purchased by Dattatraya-1 with the Jagir income and the shops and the rooms were constructed with the Jagir income. It was also pleaded that four shops situated on eastern side of iron gate were constructed by the appellants mother from the compensation of the Jagir lands and the personal amount belonging to them. Jeherin Araji lands were purch