JUDGMENT

Agha Haidar, J. - This is an appeal from a decree of the learned Senior Subordinate Judge of Delhi dismissing the plaintiff's suit with costs. For the purpose of understanding this case it is necessary to give below a short pedigree:

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2. The plaintiff came into Court on the allegation that, when his father, Nanak Chand, died, he was left an orphan aged five years only, his mother having died during the lifetime of his father; that he was brought up by the wife of Bhana Mal, the son of his father's sister, and that he lived with her up to 1907, in which year the defendant brought him to his own house. Para. 4 of the plaint contains clear allegations that no ancestral property had been left by the grandfather Sita Ram; that his father was separate from Kure Mal; and that the property in dispute was the exclusive property of the plaintiff's father in which the defendant had no share or interest. The plaint goes on to say that in the year 1918, as a result of deception and misrepresentation by the defendant, the plaintiff was led to believe that the property in dispute was the joint family property of the parties and consequently the plaintiff was induced to execute the deed of partition dated 27th July 1918. The plaintiff's case is that the said deed of partition was obtained by the defendant when he was in a position to dominate the will of the plaintiff and held out threats to him that, unless the plaintiff executed the deed, he would be turned out of the family house penniless. There is also an allegation of fraud, and it is finally prayed that:

it may be declared that immovable property, ornaments, cash and household goods entered in list A attached to the plaint entirely belong to the plaintiff and that the deed of partition, dated 27th July 1918, is ineffectual and null and void as against the plaintiff.

3. There is also a further prayer about the rendition of account of moveable property including cash and ornaments, but the claim as to this relief was subsequently withdrawn under an order of the Court dated 6th April 1921, with liberty to bring a fresh suit.

4. The written statement is a lengthy rambling document, but substantially it comes to this: that the family of Nanak Chand and Gauri Mal was a joint Hindu family; that they carried on joint business; and that the property in suit was the joint family property, having been acquired with the help of joint family funds. It is also pleaded that the deed of partition, dated 27th July 1918, is a genuine document in that it was executed at the instance of the plaintiff and with the mutual free consent of the parties. The allegations of the plaintiff as regards fraud, misrepresentation, deception and undue influence are specifically controverted and it is further pleaded that the deed of partition was effected by the plaintiff after due deliberation and that it had actually been acted upon by the parties.

5. In appeal the learned Counsel for the plaintiff-appellant, Mr. Sardha Ram, tried to shift his ground a little. While trying to establish the clear allegations contained in para. 4 of the plaint that the plaintiff's father was separate from Kure Mal and that no ancestral property was left by Sita Ram, the grandfather of the parties, the learned Counsel attempted to put forward an alternative claim to the effect that, even if the family was a joint Hindu family, the property standing in the name of Nanak Chand was his separate and self-acquired property to which the rest of the family was not entitled. This line of argument was not open to the learned Counsel, as it was an entirely new case which was not even fort shadowed either in the pleadings of the parties, or in the judgment of the Court below, or even in the grounds of appeal in this Court. However, the attempt in the very early stage of the arguments broke down and the appeal was argued on the pleadings of the parties and the issues framed thereupon.

6. Sanwal Das, the plaintiff, attained the age of majority,