A misjoinder of causes of action can be waived if not raised at the earliest opportunity, and an admission made by a party is admissible in evidence under S.21 of the Evidence Act even if it was not put to the witness when they came into the witness box.

KIDWAI J.:- The following pedigree will help to elucidate the facts of the case:

2. Zubeda and Fahmida, mentioned in the above pedigree, instituted the suit out of which this appeal arises against the appellants for the following reliefs: (1) A decree against all the defendants for the partition of a ten annas share in the property left by Zahiruddin which, the plaintiffs alleged, was the entire property entered in list A attached to the plaint and which was in the possession of Ulfat and Mohmudan though a small portion of it - the goods in the tailors shop - was in possession of Ali Mohammad. (2) A decree for dower amounting to Rs.250/- against defendants 1 and 2; and (3) A decree against defendant No.1 for the recovery of the jewelry mentioned in list B attached to the plaint which was alleged to belong to the plaintiff No.1 and was said to have been entrusted by her to defendant No.1.

3. All the defendants filed a joint written statement. They alleged: (1) That none of the property mentioned in list A was the property of Zahiruddin; (2) That plaintiff No.1 remitted her dower and cannot now claim it; (3) That plaintiff No.1 did not leave any jewelry with defendant No.1; (4) That in fact plaintiff No.1 had taken away some money and jewelry belonging to defendant No.1; (5) That the suit is bad for misjoinder of causes of action; and (6) That Zahiruddin had purchased a house in the name of plaintiff No.1 and that should aba be included in the suit.

3a. The trial court held: (1) That plaintiff: No.1 had not relinquished her dower; (2) That all the property in list A was property left by Zahiruddin; (3) That defendant No.1 has taken possession of the ornaments belonging to plaintiff No.1; (4) That the house standing in the name of plaintiff No.1 does not form part of the assets of Zahiruddin.

4. It appears from the judgment of the trial court that the issue as to misjoinder was not pressed and the court held that there was no misjoinder. On the findings arrived at by the court the suit was decreed for all the reliefs claimed. It was further directed that, if defendant No.1 failed to return the ornaments given in list B, she should pay the price of the ornaments at the current market rates of silver and gold.

5. The defendants appealed and the learned District Judge, Lucknow, upheld the findings arrived at by the learned Civil Judge. He, however held that there was a misjoinder of causes of action but he held that the merits of the case were not affected and that consequently by reason of S.99, C.P.C, he could not interfere. With regard to the ornaments he modified the decree of the Civil Judge and confined the decree to a return of the ornaments or payment of Rs.1300/-, the amount mentioned in the plaint as the value of the ornaments.

6. The defendants have come up in appeal. Their learned Advocate contended : (1) That the suit was bad for multifariousness and a question of Jurisdiction was affected; (2) That there was no evidence to prove that house entered at item no. 1 of list A belonged to Zahiruddin and the courts below have relied upon inadmissible evidence to prove this; (3) That the evidence as to the entrustment of the ornaments to defendant No.1 was insufficient and, in any case, the weight and value of the ornaments were not proved; (4) That, in any case, dower was due not only from defendants 1 and 2 but also from the plaintiffs themselves and so a decree for Rs.250/- could not have been passed against the defendants.

7. With regard to the first point, it was urged; (a) That the relief for return of ornaments was claimed only against defendant No.1 by plaintiff No.1 and could not have been joined with a suit against all the defendants for a partition of the assets of a deceased person; and (b) That dower was claimed only by one of the plaintiffs against two of the defendants; and it should have been claimed against the other plaintiff also, which affected the merits of the case.

8. The first objection is perfectly va