Partition of a joint Hindu family property can be proved by the intention of the parties manifested by their subsequent conduct and sole and independent enjoyment of the properties.

Kanhaiyaji, J.

1. This is an appeal by defendants 1 to 6 from the decision of the court below decreeing the plaintiffs suit for partition in respect of the lands of one mauza Berasi. The relationship between the parties is not disputed. According to the genealogy given in Schedule I of the plaint, one Ritu Mahto, the common ancestor of the parties, had three sons, namely, Saharai, Jogu and Sonaram. Sridhar and Sudan were the sons of Saharai, while Gangadhar, the father of Jhabu Mahto (defendant No. 9), was the son of Jogu. Gurucharan, the husband of Shrimati Mahatani (plaintiff No. 4), and Bidyadhar Mahto the husband of Shrimati Adin Mahatani (plaintiff No. 7), were the sons of Sonaram, besides Nitai Chandra Mahto, plaintiff No. 1. Dasrath, defendant No. 1 (since deceased) and Chutu, defendant No. 2, were the sons of Sridhar.

2. The plaintiffs case, in short, Is that originally the lands described in Schedule 2 of the plaint which are situated in five villages, namely, Haiturildih, Berasi, Heshalong, Dulmi and Shyam nagar, belonged to Ritu Mahto. After his death, his aforesaid three sons inherited them in equal shares. Consequently after the death of Saharai his l/3rd share in the properties was inherited by his two sons. Sridhar and Sudan. Therefore, the descendants of late Sridhar Mahto have got l/3rd share in the suit properties. Similarly, defendant No. 9, who is the grandson of late Jogu Mahto has got l/3rd share, and the remaining 1/3rd share belongs to the plaintiffs, who are the descendants of Sonaram Mahto.

According to the plaintiffs, the lands in suit had never been partitioned by metes and bounds either amongst the three sons of late Ritu Mahto or amongst the descendants of the sons of Ritu Mahto, although the predecessors of the plaintiffs and the defendants cultivated some lands in suit separately for the sake of convenience. The plaintiffs case further is that there was no deed of settlement in the name of Ritu Mahto with regard to the lands in suit. The landlords of mauzas Berasi, Dulmi and Heshalong compelled Soharai to get deeds of settlement executed in respect of the lands of those villages on payment of salami. As a result, the deeds of settlement in respect of the said lands were granted only in the name of Soharai, who was the Karta of the family. No deed of settlement could be executed with respect to the suit lands in Shyamnagar and Hiturildih.

It is alleged that Soharai, who looked after the settlement operations in 1911 on behalf of the entire family got the suit lands appertaining to khata Nos. 213 and 214 of village Berasi recorded in his name as well as in the names of his brothers, Jogu and Sonaram; but in respect of the lands in other four villages he got the same recorded in his own name. In paragraph 3 of the plaint, it is stated that Saharai Mahto was the eldest of the three sons of Ritu Mahto, and, so long as Saharai was alive, the rent receipts were granted in his name, and, after his death, in the name of his descendants who happened to be eldest. The three branches of co-sharers have been contributing equally towards the rent payable for the properties in suit.

3. Defendants 1, 2 and 3 only filed written statement and put in contest in the suit. Their main contentions therein were that the suit lands in mauza Berasi, which belonged to Ritu Mahto, were partitioned one or two years after the death of Ritu Mahto, which took place about eighty years back, amongst his three sons, namely, Saharai, Jagu and Soneram, and thereafter the aforesaid three sons came in possession of the lands allotted to them in the said partition. After the aforesaid partition, Saharai acquired the suit lands in villages Dulmi, Heshalong and Hitiruldih and Shyamnagar besides some lands in mouza Berasi at an annual rental of Rs. 3/1/6 including cess under a patta dated the 1st May, 1901.

It is also stated in the written statement that plaintiff No. 1 has no locus standi to bring this suit as he has sold his en