JUDGMENT

Gangeshwar Prasad, J. - This is a Special Appeal from the judgment of a learned single Judge of this Court by which he dismissed defendants' First Appeal against a decree for partition of a house passed by the 1st Additional Civil Judge, Benares.

2.The suit giving rise to the appeal was instituted by Gopal Ram against the other members of his family. Gopal Ram is now dead and his widow Smt. Radha Bahu has been substituted in his place as his heir and legal representative. The following genealogical table would show the relation. ship between the parties and will be helpful in appreciating the controvercy raised in the suit.

3. Jadduji, it would be seen was the common ancestor of the parties. The admitted facts of the case are that the four brothers, Mathura Nath, Kashi Nath, Sita Ram and Ram Narain, inherited a house from their maternal grand-father in equal shares. Out of these brothers Lakshmi Nath was the first to die. Mathura Nath sold his one-fourth share in the house to his brother Sita Rain and, thereafter, Sita Ram brought a suit (No. 204 of 1919) in the court of the Subordinate Judge, Benares for partition of the house. A preliminary decree was passed in that suit on February 28, 1921, under which Sita Ram was given 7/- share in the house although, considering the fact that he had purchased Mathura Nath's share, his share would actually have been 8/-. The remaining 9/- share went in equal halves to Girdhar Narain (son of Ram Narain) and Lakshmi Nath under the decree. On June 24, 1922 Girdhar Narain, who thus had 4/6 share in the whole house, executed a sale deed in favour of Gober-dhan Ram and Gopal Ram in respect of his share. Actual partition of the house in terms of the preliminary decree took place out of court on December 24, 1923, by which the eastern portion of the house now numbered as 7/36 in the Municipal records was allotted to Sita Ram as representing his 07/- share while the western portion numbered as 7135 was allotted to the other co-sharers, viz. the four sons of Lakshmi Nath.

4. It appears that on March 7, 1937 Goberdhan Ram executed a deed of gift in favour of Gopal Ram with respect to his share in the house. Execution of this deed was denied by the contesting defendants, but the trial Judge found it proved and his finding was not challenged either before the learned single Judge or before us. The position, therefore, is that now execution of the said deed of gift is also one of the undisputed facts.

5. The claim of Gopal Ram, plaintiff, was that as a result of the transactions noted above, he had 12/- share in the western portion of the house i/e. in house No. 7/35. His claim was contested by defendants 3, 5, 6, 7 and 8. Goberdhan Ram, defendant No. 14, supported the plaintiff and the remaining defendants filed no written statement at all. The learned trial Judge upheld the claim of the plaintiff and awarded to him a decree for partition in respect of 12/- share.

6. The judgment of the learned single Judge shows that the sole contention raised before him by Shri G. P. Bhargava, learned counsel for the appellants, was that the plaintiff had only 8/- share and not 12/-share, because at the time of the execution of the sale deed dated June 24, 1922 by Girdhar Narain, the four sons of Lakshmi Nath were members of a joint Hindu family and the interest conveyed by the sale deed was acquired by the joint family with joint family funds. Before us too Shri N. D. Ojha, arguing the appeal on behalf of the appellants, reiterated the same contention. He urged that each of the four sons of Lakshmi Nath became entitled to 141 share in house No. 7/35 after the execution of the sale deed by Girdhar Narain, and as Gopal Ram became the owner of Goberdhan Ram's 4/- share by virtue of the deed of gift in his favour, his share came to be 8/-. In the trial court as well this was the main contention, and the finding recorded by the court was that the sons of Lakshmi Nath had separated before the execution of the sa