JUDGMENT

1. This appeal against a decree of the learned District Judge of Fyzabad arises out of a suit brought by the plaintiff-appellant for possession of properties situated in villages Naraini and Maharajpur in the district of Sultanpur. The plaintiff-appellant's father Gaya Bakhsh Singh and Chattarpal Singh were brothers. Chhattarpal Singh left a son Sheopal Singh, who died, on 5th May 1928, and a widow, Mt. Hansraji, who is defendant 1 in the present case. Defendant 2 is the widow of Sheopal Singh and Sankata Bakhsh Singh, defendant 3, is a relation of Sheopal Singh. On 6th April 1928 Sheopal Singh executed a will in favour of the three defendants in respect of the property in suit. The will provided that the legatees would hold the property for their lives in equal shares, but that if any of them died, the surviving legatees would get his or her share. After the death of all the three legatees the property was to go to the plaintiff. The plaintiff's case was that he and Sheopal Singh were members of a joint Hindu family, that the property in suit was the joint ancestral property of the family and that as such it could not be disposed of by will by Sbeopal Singh. He claimed the entire property as survivor of Sheopal Singh.

2. The defence of all the defendants was that Sheopal Singh was not joint with the plaintiff, that a separation had taken place between the fathers of the plaintiff and Sheopal Singh some twenty-five years before suit and that Sheopal Singh had every right to dispose of his separate property by will. The trial Court held that though the defendants could not specifically prove the alleged partition some twenty-five years before suit, yet it was proved that the families of Gaya Bakhsh Singh and Chattarpal Singh had been separate for a long time. On this finding the suit of the plaintiff was dismissed. The plaintiff appealed but the learned District Judge who heard the appeal, concurred with the finding of the learned Civil Judge and dismissed the appeal. The will executed by Sheopal Singh was held to have been proved and to be valid by both the Courts. We have heard the learned Counsel for the appellants but are of opinion that the appeal has no force. It is true that there is no satisfactory evidence of actual partition but there are various circumstances which go to show that Gaya Bakhsh Singh and Chattar-pal Singh had been separate for a long time. The parties are living in separate houses divided by a partition wall and the learned Judges of the Courts below have believed the evidence of the defendants' witnesses that the houses have been separate for about twenty-five years. Similarly, the evidence of the defendants' witnesses to the effect that the parties have been separate in mess also for a long time has been believed by both the Courts. "With regard to the immovable property possessed by the family, it is true that mere specification of shares in the revenue papers is not by itself evidence of separation, yet we find that when in the partition of village Naraini in or about 1909 a separate patti of 161 bighas was formed and was named after Gaya Bakhsh Singh, the patti was itself sub-divided into three shares, namely one of 81 bighas 17 biswas 14 biswansis allotted to Gaya Baksh Singh, one of 65 bighas, 10 biswas, 3 biswansis allotted to Chattarpal Singh, and a third of Id bighas, 2 biswas allotted to a third co-sharer. This sub-division of patti Gaya Baksh Singh is to our minds a strong indication of the fact that the brothers Gaya Baksh and Chhat-tarpal Singh were separate. No doubt the shares of the two brothers were unequal but the point does not affect the conclusion that we have drawn from the specification of the shares of the two brothers.

3. There is also evidence to show that parties have been making collection of rent separately. The evidence of Jagannath, D.W. 3, has not been relied on by the learned District Judge but no reason has been shown to us why the evidence of the other witnes