In a suit for partition, the course of dealing with the property is a material factor in determining whether there has been separation in a Hindu family.

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 l/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 Son. 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 and 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 l/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 alia 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 l/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 Girja 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; AIR 1954 All 801: AIR 1964 SC 136.

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 o