JUDGMENT

Sulaiman, J. - This is a defendant's appeal arising out of a suit for declaration of title and joint possession. The properties have been given different momenclatures. I, however, adopt those given in the lower appellate Court's judgment. The plaintiff's case was that Jaipal, the common ancestor, was joint with his four sons and grandsons, and while the family was joint, properties in lists A, B, C, D and E, were acquired under permanent leases, and were joint family properties and that later on property in list F was acquired out of the joint family funds, though in the name of Deo Narrain, defendant. The plaintiffs allege that Jaipal died in 1922, while still joint, and they have, therefore, an interest in all the properties in suit.

2. Deo Narain Singh and others contested the claim on the ground that Jaipal separated from his sons before 1916, that properties in lists A, B, C and D were the exclusive properties of Jaipal, and that under a will, dated the 10th of February 1916, he gave properties in lists A, B, C and D to the defendants, who have acquired exclusive title thereto. It was further pleaded that properties in list E were not covered by the leases, but were subsequently acquired by the defendants under another lease of 1919, and that properties in both the lists E and F were the self-acquired properties of the defendants. With regard to the will, the plaintiffs replied that ail the properties were non-occupancy tenancies and were not transferable and the will was invalid.

3. The lower appellate Court has found distinctly that the properties acquired under the permanent leases in the time of Jaipal was not his separate properties but were joint family properties. It has thus held that all the members of Jaipal's family had an interest in the properties acquired under the permanent leases. The lower appellate Court has also found that Jaipal had actually separated from his sons in 1915, that is some time before the execution of the will of 1916. He has also found that the will was genuine and was executed out of free will, and without any undue influence.

4. The learned Judge, however, has held that the plots being non-occupancy tenancies Jaipal had no transferable interest in them, and that his will is, therefore, invalid. As regards properties in list E he has remarked that they are covered by the lease and are not the self-acquisitions of the defendants. As regards the properties in list F he has found that they are the self-acquisitions of defendant 1.

5. One of the learned vakils for the appellants examined the record and certified that "the plots detailed in list E were not acquired prior to 1915." On this certificate being brought to the notice of Mr. Asthana he has pointed out that some of the plots in list E, which constitute its first group, were recorded against the names of Deo Narain in the khewat of 1319 F and that, even though they do not appear to have been acquired under the permanent leases they were acquired at a time when the family was joint. The certificate was, therefore, misleading to this extent. As regards the remaining plots of list E, namely the last six plots mentioned there and measuring 587 acres Mr. Asthana is not in a position to say that the certificate is in any way wrong. I must, therefore, accept that there is no evidence on the record that these last-mentioned six plots were acquired at a time, when the family was joint. As a matter of fact these are included in the subsequent lease of 1919, in favour of the contesting defendants. The plaintiffs' claim with regard to these six plots must, therefore, fail.

6. As to properties in lists A, B, C and D the position is clear. These were joint family properties up to the year 1915, when a disruption took place although there was no division by metes and bounds. In the eye of the law Jaipal and his four sons became co-sharers of 1/5th share each in all these properties. There is, therefore, no doubt that if Jaipal made a gift of hi