( 1. ) THIS is plaintiffs appeal from the decree in civil suit No. 5-A of 1948 of the Court of First Additional District Judge, Sagar, dismissing his claim for partition.

( 2. ) THE following pedigree discloses the relationship between the parties. BALLE (d. before 1888)

___________________________________________|___________________

_ | | | | | mulchand Sukkelal Nanhelal Ramkishan Bhaiyalal (d. 1891) (d. 17-4-1915) (d. after 1888) (d. 1906) (d. 31-1-1946)| | | | _______|__________

___________|__________ Damrulal | | | | | |

_________________|________ tantilal Manmohan Sandhani Ranjitbabulal | | Kanchhedilal Chhotelal (deft. 1) (d. 1932)

_____________________________________________|______ | | | | | mulamchand Komalchand Shikharchand Prakashchand Subhashchand (Plaintiff) (deft. 2) (deft. 3) (deft. 4) (deft. 5) It was not disputed in the pleadings that Balle and his sons formed a joint Hindu family from which Nanhulal separated in 1888 A. D. , Tantilal Manmohan and Sandhani, in 1908 A. D. and Damrulal In 1939 A. D. It was also not disputed that the plaintiff was born on 26th September, 1929 and attained majority on 26th September, 1947. The suit was instituted on 8th May, 1948 within 3 years of his attaining majority.

( 3. ) THE case of the plaintiff was that Balle left behind considerable property which devolved on his sons on his death. The family continued joint in spite of the separation or Nanhulal and sons of Mulchand, namely Tantilal, Manmohan and Sandhani. After the death of Sukhalal in 1915, the family consisted of Damrulal and Bhaiyalal. On Damrulals separation in 1939 A. D. , Bhaiyalal continued joint with his son Kanchhedilal, defendant No. 1, and his grandson, the plaintiff. On the death of Bhaiyalal, the plaintiff demanded partition from Kanchhedilal by a notice, dated 27-10-1947. In reply to this notice, Kanchhedilal alleged that there was already a partition between him and the plaintiff on 21st January, 1946. The plaintiff contended that the alleged partition was not binding upon him firstly because it was not effected by his guardian, namely mother Mst. Maharani, and secondly because Bhaiyalal had lost his power of understanding on account of senile decay. He, therefore, claimed partition of the entire property in the hands of Kanchhedilal and his sons.

( 4. ) THE defendants alleged that Balle did not own any property except a small house which yielded no income and could not form a nucleus for acquisition. According to them, the property was acquired by the sons of Balle by their own exertions. Their case was that there was a family partition between the sons of Balle on 15th June, 1914, and thereafter Sukkelal bequeathed his share of the property to defendant No. 1, Kanchhedilal, by a will, dated 15th April, 1915. In this property Damrulal claimed no interest when he separated from Bhaiyalal in the year 1939. This property was all along treated as the separate property of Kanchhedilal by all concerned and accordingly it was left out of the partition between him and the plaintiff, which was effected with the concurrence of the plaintiffs mother as his guardian. Accordingly, on 21st January, 1946, Bhaiyalal executed, on behalf of himself and the plaintiff a Farkatnama in favour of Kanchhedilal and also a deed of partition between him and the plaintiff. The defendants contended that the partition was binding upon the plaintiff and in any case the suit could not be maintained in the absence of a prayer for cancellation of the Farkatnama and the deed of partition. Alternatively, they urged that in the property of Sukkelal, the plaintiff could not have any snare exceeding 1/6th.

( 5. ) THE lower Court by an order dated 30th June, 1949, held that there was no ouster of the plaintiff to his knowledge and, therefore, he was not required to pay ad valorem court-fees. On other issues, its findings may be summarised as below :-

(1) That there was a family partition in the year 1888 A. D. , but there was a reunion of Mul