JUDGMENT

1. This is the plaintiffs' appeal in a suit for a declaration of their shares in the properties mentioned in Schedules 3 and 4 attached to the plaint and for partition thereof on the allegation that they formed a joint Hindu family with the defendants and that the properties in suit were the joint family properties of the parties. Appellant 6 is a purchaser from the plaintiffs and was joined as an appellant in the appeal in this Court. The pedigree of the family as given in the judgment of the Court below and admitted between the parties may be reproduced here to elucidate facts.

TABLE

2. It may be noted that plaintiffs 1 to 5 are the descendants of Zalim Singh, the second son of Barwand Singh, the ancestor, and the defendants are the descendants of Audan Singh, the first son of Barwand Singh. The plaintiffs' case as disclosed in the plaint is that Ateha was the parent estate of the family and was established in the pargana of that name in the district of Partabgarh about; 300 years ago. On partition it was divided in two taluqas, i. e. Umrar and Rajapur-Naseerpur taluqas, the latter falling to the share of Thakur Barwand Singh and consisting of seven villages in Rajapur and five villages in Naseerpur. Thakur Barwand Singh in his lifetime prescribed the shares of each of his four sons about the year 1231 Fasli with a view to avoid a dissension among them, but this partition never took effect and the family continued to be joint as before. On the death of Barwand Singh in 1240-41 Fasli Sheo Ambar Singh, his grandson, took possession of the estate as Audan Singh had predeceased his father. It is alleged that Sheo Ambar Singh came into possession as karta of the joint family and remained in possession till the annexation of Oudh. The settlement of three villages was made with Lal Sheo Ambar Singh in 1264 Fasli and the settlement of 11 villages was made with other revenue payers. Later, however, it was recommended that the settlement of all the 14 villages be made in favour of Lal Sheo Ambar Singh and was, in fact, made with him: vide Form A of Ex. A-65.

3. The plaintiffs' case further is that the engagement of Sheo Ambar Singh with the British Government in the second summary settlement, the execution of the qabuliat (it is alleged that no list of villages is attached to this qabuliat) and the passing of Act 1 of 1869 and the inclusion of Lal Sheo Ambar Singh's name in lists 1 and 3 of that Act did not affect the character of the property in his hands and it remained joint family property of the parties. It is alleged that no sanad in respect of this estate was at any time granted to Lal Sheo Ambar Singh and he by his admissions, statements and conduct convinced the members of his family that he was holding the estate in the interests of all the members of the family. After the death of Lal Sheo Ambar Singh his youngest sonLal Sripat Singh became the karta and on his death defendant 1 became the karta, but he soon misbehaved and stopped the allowances of the plaintiffs and hence the present suit. In para. 17 of the plaint it was alleged that as it was a suit for partition of the family property, a portion of which was enjoyed by the plaintiffs and owing to the existence of their beneficial interest in the estate a fee of Rs. 10 only was paid.

4. Out of the ten defendants, the first:three defendants alone, i. e. the present holder of the taluqa and his two sons, contested the suit. The other defendants kept out and allowed the suit to proceed ex parte against them. Defendants 1 to 3 traversed all the allegations of the plaintiffs in the plaint and raised several defences which led to the framing of a larger number of issues in the trial Court. One defence may particularly be mentioned here which was that the plaintiffs or their predecessors had never been in possession of any part of the estate and that the court-fee paid was not sufficient. The trial Court found on merits against the plaintiffs and on the question of suffi