Modi, J.:— This is a second appeal by the plaintiffs Ramlal minor and Madanlal in a suit for declaration against the judgment and decree of the Civil Judge, Tonk, dated the 6th August, 1953, reversing the judgment and decree of the Munsiff, Tonk and dismissing the plaintiffs' suit. The first appellant has filed the appeal through his next friend Madanlal.

2. The following brief pedigree table which is not in dispute explains the relationship of the plaintiffs and the defendants Nos. 3 and 4 namely, Hariram and his son Ladu Ram and will be found helpful in understanding the contentions between the parties—

3. So far as defendants Nos. 1 and 2 namely Ramniwas and Hariniwas are concerned, it is admitted that they belong to a different family and are descended from one Sada Sukh who was some kind of relation of Shrilal but what that relationship was, has not been disclosed. The plaintiff Ramlal who is the natural born son of the other plaintiff Madanlal styled himself as the adopted son of Govindram in the title of the plaint. It is also in evidence that Govindram had executed a will Ex. P. 1 dated the 12th January, 1946, by which he bequeathed all his movable and immovable property specified or left unspecified in the will in favour of the said Ramlal. It is common ground between the parties that the property in suit consisting of two shops situate in the town of Tonk had been constructed by Shrilal, the common ancestor of the plaintiffs and defendants No. 3 to 4 and Sadasukh; and Ramniwas and Hariniwas defendants who are the heirs of Sadasukh are owners of half share in both these shops and the other half was owned by Shrilal and Kishenlal. The case set up by the plaintiffs in the plaint was that these shops were the joint property of the parties and had not been partitioned. The exact expression used therein is as follows—

It was further alleged that defendants Nos. 1 and 2 had a half share in these shops, and that so far as the other half was concerned, the plaintiff Ramlal was the owner of a half share thereof that is, a one-fourth share in the entire shops and plaintiff No. 2 and defendant No. 3 who were brothers owned the remaining one-fourth share therein. The grievance of the plaintiffs was that defendants one-fourth share therein. The grievance of the plaintiffs was that defendants Nos. 1 to 4 had mortgaged the entire suit shops in favour of defendants Nos. 5 and 6 for Rs. 2000/- by a registered deed of mortgage dated the 26th of November, 1948 (it appears that this mortgage-deed was produced in court at some stage but is not traceable on the record as it is available to this Court) and that the defendants had no right to make any mortgage with respect to the share of the plaintiffs therein. Consequently, the plaintiffs filed the present suit on the 26th January, 1951, in the court of the Munsiff Tonk with the prayer which in effect was that the said mortgage-been be declared to be inoperative so far as the rights and interests of the plaintiffs in the suit shops were concerned. So far as defendants Nos. 1 and 2 are concerned, although they filed separate Jawabdavas, they run on the same lines, and these defendants admitted the mortgage and pleaded that it had been made in order to provide the expenditure to be incurred on the marriage of Jalebiram son of Hariram. These defendants further stated that they were owners of half share in the said shops: and as for the other half share, they pleaded that they had no knowledge whether a partition with respect to the remaining half share had or had not taken place between the plaintiffs and the defendant No. 3 Hariram. The defendants Nos. 5 and 6, the mortgagees, also admitted the mortgage, but their case was that the share of Ramlal minor plaintiff had not been mortgaged to them and they were giving rent of the shops with respect to Ramlal's share to his natural father Madanlal. It may be mentioned here that the mortgagees are admitted to have been the tenants of one of the shops for a very long time. Defendants Nos. 3 and 4 Hariram and his son Ladduram also admitted the mortgage but their case was that Hariram was the exclusive owner of Shrilal's half share in these shops (the other half share admittedly belonging to the heirs of Sada Sukh), and, therefore, he had every right to make the mortgage which was being impugned and that the plainttiffs had no business to dispute it. The specific case put forward by Hariram was that neither Harivallabh, his uncle, nor his father Ramvallabh had anything to do with these shops and that their sole owner was the other uncle Ramdhan so far as the half share in these shops of Shrilal was concerned, and Ramdhan had made him the Malik of this half share about 40 or 45 years ago, that is, some time in 1906 A.D, and he has been in exclusive possession of that half share ever since and defendants Nos. 1 and 2 are in joint possession of the other half. Defendant Hariram also contended that he had been in adverse possession of Shrilal's half share in the suit shops, and, therefore, he had every right to make the mortgage which he did.

4. The trial court decreed the plaintiffs' suit holding that plaintiff Ramlal was entitled to one-fourth share in the suit shops, and the other plaintiff Madanlal was entitled to one-eighth share therein and granted a declaration in favour of the plaintiffs that the mortgage made by defendants Nos. 1 to 4 would be inoperative so far as the aforesaid shares were concerned. From this decision, defendant Hariram went in appeal to the Civil Judge Tonk, who reversed the judgment of the trial court and dismissed the plaintiffs' suit with costs throughout. The findings of the learned Civil Judge, briefly put, were that the plaintiffs had admitted in their plaint that they as well as the defendants Nos. 3 and 4 were members of a joint Hindu family and that there was evidence to show that Hariram was the eldest member in that family and that the plaintiffs had further admitted that this joint family property had been mortgaged by the Karta Hariram for legal necessity, namely to provide expenditure for the marriage of Hariram's son Jalebiram. The learned Judge, therefore, came to the conclusion that the transfer was not void but was only voidable, and further that as the plaintiffs had kept quiet until the last day of limitation, their suit was not maintainable, and on that curious view, he dismissed the plaintiff's suit with costs throughout. The plaintiffs have come in appeal against the aforesaid judgment and decree.

5. It has been forcefully contended before me that the Judgment of the learned Civil Judge, Tonk (Shri Harikishen Dayal) is highly unsatisfactory, and that it is founded on glaring mis-statements of fact and law. It is submitted by the plaintiffs that they had never admitted in their plaint that they and the defendants Nos. 3 and 4 constituted a joint Hindu family. It is further contended that the plaintiffs had never admitted in the plaint or at any stage that Hariram was the Karta of the family or that he had the authority to act as such or that the impugned mortgage had been made for any legal necessity. It is also urged that granting that the mortgage was voidable and could be avoided in law, the view of the learned Judge that as the suit had been brought on the last day of limitation, it was not maintainable, was without any warrant in law. Again, it is also complained that the learned Judge had not cared to apply his judical mind to the evidence led by the parties in this case or to the crucial points arising therein. I regret to have to say that there is considerable force in most of these submissions, and that the judgment produced by the Civil Judge leaves a lot to be desired. It is indeed amazing that a court of first appeal should have thought fit to produce such a sketchy, perfunctory and an altogether unsatisfactory judgment replete with mis-statements of fact, and based on assumptions for which there is very little foundation if at all on the record. In these circumstances, it has become necessary for this Court to deal with this appeal practically as a court of first appeal, and this Court has been compelled to go into the entire evidence for itself without any assistance whatsoever having been derived from the judgment under appeal.

6. The main question for determination in this appeal is as to whether the plaintiffs have any right or title with respect to the shops in suit for if they have, then I have no doubt that the decree passed by the lower appellate court can in no manner be sustained and must be set aside.

7. I may state atonce that there is no dispute so far as the mortgage with respect to the half share of defendants Nos. 1 and 2, descendants of Sadasukh, is concerned. It is the common case of the parties that the latter were the owners of an undemarcated half share in the shops in suit, and that being so, they had every right to make the mortgage with respect to it. We are only concerned with the other half share, and it is to be seen whether the case of defendant No. 3 Hariram that he is the sole owner of that share which originally belonged to Shrilal is well-founded. The case put forward by Hariram in his written statement was that the half share in question was the exclusive property of his uncle Ramdhan and that his father Ramvallabh and his other uncle Harivallabh who was Govindram's father had nothing to do with his half portion, and his case further was that Ramdhan had made him the Malik of it some 40 or 42 years ago before he died in 1910 A.D Although Hariram did not state the material facts supporting the position taken up by him in his written statement, his case at the trial was that a partition had been made between the sons of Kishenlal, namely Harivallabh, Ramavallabh and Ramdhan, some 45 to 50 years ago, that is, about 1902 to 1907 A.D, and that at that partition Ramdhan had received Shrilal's half share in the suit shops as his share in the family property. As for the question as to how he stepped into Ramdhan's shoes and became the sole successor in-title of Ramdhan with respect to this half portion, Hariram's evidence at the trial was that Ramdhan had adopted him as his son about two years after Ramdhan's natural born son Uttamram had disappeared about 1907 or 1908. He also deposed that Ramdhan had made an entry in a Bahi to that effect but curiously enough, his evidence is that the Bahi in which the entry of adoption had been made belonged to Govindram's father Harivallbh and that all those papers were in the possession of the plaintiff Madanlal. According to Hariram, his Pagdi Dastoor (the reference obviously) is to the adoption) had been done some time in Svt. 1999 (equal to 1942 A.D) that is more than thirty years after Ramdhan's death. Hariram has not stopped at that, and his further evidence is that he had performed the Nukta ceremony (a death dinner) of his adoptive father Ramdhan some time in 1989 (equal to 1932 A.D) that is 22 years after Ramdhan's death. It was, however, elicited in his cross-examination that in 1932 A.D had occurred the death of his natural father Ramvallabh, and that a dinner had been given in connection with the death of Ramvallabh in that year, and he then said that he had done the two Nuktas together. A little later, however, this witness admitted that his brother Ramratan had performed the Nukhta of their natural father Ramvallabh. I have given my very careful consideration to the evidence of this witness and have no hesitation in saying that he has indulged in a bundle of lies. His evidence to the effect that he had been adopted by Ramdhan, is utterly false. If Ramdhan had made any entry in a Bahi in that connection, he should have done it in his own Bahi rather than in the Bahi of Harivallabh. Not a single question was put to Madanlal about this alleged sonship when he came into the witness-box. Hariram's own Jawabdava does not contain the slightest reference to the story of his adoption to Ramdhan. I am also unable to understand that if the adoption was made by Ramdhan during his life-time before he died in 1910 A.D, why should the Pagdi Dastoor have been deferred until 1942 A.D Again, according to Hariram himself, Uttamram son of Ramdhan had disappeared (putting the most favourable construction upon his evidence in this connection for here also he has unabashedly contradicted himself) in 1907 A.D and Ramdhan is said to have died in Svt. 1967 (equal to 1919 A.D). I find it hard to believe that Ramdhan should have thought within a couple of years of the disappearance of his son, that the latter would not return at all (for not much time had passed after his disappearance) and that the should take some one in adoption. It is highly unlikely that Ramdhan in such circumstances should have thought of adopting Hariram and thereby injured the interests of his own natural-born son Uttamram. As I look at the matter, the story put forward by Hariram is a piece of unmitigated falsehood and, therefore, I reject it as wholly untrue.

8. This brings me to the other part of Hariram's case, namely, that Ramdhan alone became the owner of Shrilal's half share of the suit shops. There is nothing to support this version except the oral word of Hariram whose evidence in connection with his adoption I have already discussed above, and have found is entirely unworthy of belief. No family partition deed has been produced, and perhaps there was no partition at all. Hariram seems to have hit upon this device of setting up the exclusive title of Ramdhan to the shops in question, so far as his own family is concerned, because that was a method par excellence by which he could exclude not only Govindram's legal heirs, but also his brother Madanlal from the field. There is a fairly strong presumption under the Hindu Law in the case of brothers that they live jointly, and there is nothing to displace this presumption in the present case so far as the question of any partition between the three sons of Kishenlal goes. My finding, therefore, is that no partition between Kishenlal's sons has been proved, much less has it been proved that Ramdhan alone was allotted Shrilal's half share of the shops in question, and I have also held above that the story that Ramdhan has made Hariram ‘Malik’ of this half share is a pure and simple falsehood. In these circumstances, I am disposed to hold the view that the family estate remained joint during the lifetime of Kishenlal's sons and that all of them were entitled to common ownership and common enjoyment of their families; half share in the shops in question. I have already stated that Ramdhan died in 1910 A.D and it is not disputed that Ramvallabh died some time in 1932 A.D and that Govindram died in early 1946 The position therefore, is this that on Ramdhan's death in 1910 A.D, branches of all the three brothers would be entitled to continue in common ownership and common enjoyment of their ancestor Shrilal's one half share in the suit shops. I may make it clear that Uttamram is said to have disappeared in 1907 A.D but it is nobody's case that he had died in that year or that he had died before his father Ramdhan died in 1910 A.D, and, therefore, the disappearance of Uttamram would not affect this position in any way.

9. At this stage, I consider it proper to take up the question whether Randal's adoption to Govindram has been proved. It will be recalled that Randal plaintiff described himself as Govindram's adopted son in the title of his plaint though the plaint itself containing no averment to that effect. When Hariram came to give his written statement, he made some kind of a reference to Ramlal calling himself the adopted son of Govindram, but did not choose to make any clear statement on that point on his side either. The matter, is, however, simplified because when Madanlal, natural father of Ramlal came into the witnes>-box he clearly stated that no giving and taking ceremony had taken place. That being so, I am not prepared to hold that the adoption of Ramlal to Govindram has been proved in law, A good deal of evidence, both documentry and oral, was however, led on behalf of Ramlal to show that Govindram had by his wil dated the 12th January, 1946, bequeathed his entire estate to Ramlal. This will has been proved to have been executed by Govindram by overwhelming evidence on the record which consists of the statements P.W 1 Madanlal plaintiff, P.W 7 Gulam Mohammed scribe of the will, P.Ws 4 and 5 Ramratan and Rampal who are the attesting witnesses and are, besides, common relations of the plaintiffs and defendants Nos. 3 and 4. I see no valid reason to reject this bulk of evidence particularly as no evidence whatsoever in rebuttal thereof was produced by the defendants. I, therefore hold that this will has been satisfactorily proved and that by virtue of its terms Ramlal (although he was not the adopted son of the deceased) was entitled to the entire estate of Govindram with respect to the property which was expressly mentioned in the will or with reference to other property which had been left unspecified therein, because the will clearly mentions that it was the wish of Govindram that Ramlal should get the entire estate of Godindram after his death including that which he had mentioned in the will itself as also his other rights and interests which had been left unmentioned.

10. I am nor unconscious of the fact that the will does not make any specific mention of Govindram's right or interest to or in these shops but that, in my opinion, hardly matters. In this view of the matter, I have no hesitation in coming to the conclusion that on Govindram's death, Ramlal was certainly entitled to whatever share Govind Ram had in the family property.

11. The next question to consider is whether the family was still joint after the three sons of Kishenlal 1 ad died. The case of Hariram is that a division of the family had taken place, and his evidence further is that even he and his brothers had separated some thirty years before the present suit was filed in 1951. The case of Madanlal is to the contrary and his evidence at the trial was that he and Hariram had been living jointly but that they had started messing separately for about a year prior to the end of 1951. This evidence, however, broke down because Madanlal was compelled to admit later during his cross-examination that he and his brother Hariram were living separately for the last nine or ten years, and that they had been doing their business separately also.

12. There is one other very significant circumstance, and that is that in 1946 A.D Govindram disposed of his property by his will shortly before his death. It is also in evidence that on Govindram's death, his estate went to Ramlal and not to Hariram at all. The principle of Hindu Law is very well established that an undivided Hindu governed by Mitakshara School has no power to dispose of his interest in the joint property by gift or by a will, and that it is only a divided member, who can alienate his property by sale or mortgage or gift or will. That being so, I am disposed to hold the view that although, there is no direct positive evidence to show that Govindram and his first cousins had separated, a disruption of the joint family had taken place before Govindram died. The conclusion to which I have come receives strong support from the broad probabilities of the case, and, therefore, my finding is that Hari Vallabh's and Ramvallabh's sons had separated, and Ramlal succeeded to Govindram's estate by will. I am also inclined to hold that Hariram and Madanlal had also separated about the year 1940 A.D and that each one of these persons owns some share in Shrilal's half share of the shops in question. That being so, it must be held that Hariram alone was not entitled in 1948 to alienate Shrilal's share in the suit shops except to the extent of his own share, that is, to the detriment of the share of Madanlal or his son Ramlal in so far as he was entitled to the estate of Govindram on his death by virtue of his will.

13. It is scarcely necessary to add that on this view of the case, the finding of the learned judge below that Hariram was the Karta of the joint Hindu family consisting of himself and his brother Madanlal or his nephew Ramlal and that he had alienated the suit shops by way of mortgage for family necessity is completely wrong and must be set aside. I may also point out in this connection that Hariram's own case was that the joint family had broken up though, according to him, very much earlier and his case never was that he and his cousins formed a joint Hindu-family or that he was the ‘Karta’ of it and I am, therefore, entirely unable to understand how the learned Judge made out a case which is not to be found in the pleading of either parties to the case.

14. The next question to determine is what are their respective shares. The plaintiffs have claimed in their plaint that leaving aside defendants Nos. 1 and 2's half share, which is not disputed in the present case, out of the remaining half, plaintiff No. 1 Ramlal was entitled to one-fourth; and plaintiffs No. 2 and defendant No. 3 were entitled to the other quarter; in other words, each of the latter was entitled to one-eighth. The trial court also came to the same conclusion. The aforesaid view is obviously based on the assumption that Ramdhan's son Uttamram had disappeared some time about 1907 A.D and must be presumed to have died at the end of seven years thereform, that is, about 1914 A.D Reliance appears to have been placed in this connection upon sec. 107 and 108 of the Evidence Act. It was strenuously contended by leaned counsel for the defendants that, in the first place, it has not been alleged by the plaintiffs that Uttamram had died at any time before the present suit was filed, and secondly that it is wrong in law to say, even if any presumption of Uttamram's death were to be made, that he died in 1914 or thereabouts. Learned counsel placed his reliance on the decision of their Lordships of the Privy Council in Lalchand Marwari v. Mahant Ramrup Gir (1). Sec. 107 and 108 of Evidence Act read as follows:

“107. When the question is whether a man is alive or dead and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.”

“103. Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him, if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.”

15. Now before I address myself to the precise import and the extent of the presumption to be made under these sections, I should like to state that it is the common case of the parties that Uttamram son of Ramdhan disappeared a considerable number of years ago and had not been heard of for the last forty years or so, before the witnesses for the parties came to be examined in 1952 or 1953. It is greatly to be regretted that no specific averment was made in the plaint, as to when Uttamram had died, or even as to his disappearance.

16. I pause at this stage to point out that this case is a typical example of how pleadings happen to be inefficiently drafted by those responsible for them in our Courts. A fundamental rule of the law of pleadings is that the plaintiff must plead all material facts in the plaint, that is, the entirety of facts which would be necessary for him to prove to succeed in the suit filed by him. It is yet another equally fundamental rule that he must not plead law, because it is for the courts to apply and pronounce on the law applicable to the facts of the case. These rules equally apply to the defendant. The object of pleadings is, firstly, to narrow down the parties to definite issues and to confine the trial within due limits so as to save time and expense which might otherwise be needlessly thrown away. In the second place, the objective is to prevent the other party from being caught by surprise. These objects are completely set at naught and the greatest amount of uncertainty is likely to be introduced in the trial of cases if due attention is not paid to them before the trial begins both at the hinds of the parties and their counsel as well as by the court of trial. The plaint in this case did not even give the pedigree table to which the parties belong. It also did not mention the facts on which the jointness of status with reference to the suit properties was claimed nor did it make any mention of the death or disappearance of Ramdhan's son Uttamram. I do wish to take this opportunity of calling the attention of all those concerned to see that due care must be given to the proper drafting of the pleadings, and of the grave risk which the members of the bar and their clients are likely to run by failing to do so, because, according to the strict law, on parly is entitled to lead evidence on a material fact which has not been pleaded without a proper amendment of the plaint. I am quite conscious of the widely held view that pleadings especially in the mufassil courts should be liberally viewed; but with great respect, I do wish to point out that this rule has its limits and cannot be extended indefinitely or endlessly.

17. Leaving aside this digression, I come back to the question of the proper presumption which arises in this case on the common evidence of the parties. Now, sec. 107 and 108 of the Evidence Act are obviously based on the principle that the court presumes the death of a person about whom no news has been received from a long period of time because if he were living, he would probably have communicated with some of his friends and relatives. Sec. 107, therefore, provides that if a man has been heard of or seen within thirty years, the presumption is that he continues to live, and the burden of proving that he is dead is on the person who affirms it. Sec. 108 further provides that where it is proved that a person has not been heard of for seven years by those round about him, the burden of proving that he is alive is shifted on the person who affirms that. Having regard to the circumstance that there is overwhelming evidence on this record to show both on the side of the plaintiffs as well as of the defendants that Uttamram had disappeared some forty years ago and had not been heard of ever since the burden of proving that Uttamram was still alive rested on the defendants. There is nothing to show on the side of the defendants that Uttamram is still alive. It is not difficult to presume, therefore, in the circumstances of the case that he is dead. The question, however, is what is the extact content of this presumption. As pointed out by their Lordships of the Privy Council in Lalchand's case (1), it is constantly assumed that where the period of disappearance exceeds seven years, death is presumed to have taken place at the end of that period. But this assumption is wrong and recording to their lordships although there is a presumpntion of death at the expiration of a period of not less than seven years in duration, there is no presumption that the death occurred at any particular period at the end of seven years or at any other particular time during the period a person has not been heard of. The true principle of law is that where a party relies on a specific date of death of such a person where he has not been heard of for seven years or more, he must prove the specific d?te. Where a person, however, is not heard of for seven years and no specific date of death has been or can be proved, the earliest date to which death can be presumed can be the date on which the suit was filed and it cannot be given a further retrospective effect. See in this connection Jsharker Revashanker v. Bai Divali (2) Norhi v. Lal Sahu (3) I am Chandra v. Keshav Dhondu (4). It is true that a contrary view has been taken in some other cares, but they cannot be considered as having been correctly decided in view of the decision of their Lordships of the Privy Council in Lal Chand's case (1).

18. Applying the law now to the facts of the present case, as discussed above, the only presumption that can be made in the circumstances is that Uttamram was dead at the time of the suit, that is, on the 26th November, 1951. It follows, therefore, that Hariram had no right to alienage Uttamram's share any more than he had the right to alienate the share of his brother Madanlal or the share of Ramlal. Now on my finding that there was a disruption of the joint family status between the grandsons of Kishenlal before 1946 A.D Govindram would be entitled to 16th and Hariram and Madanlal between themselves to another 1/6th or to 1/12th each, and Uttamram would also be entitled to 1/6th in the entire half of the suit shops. On Uttamram's death, however, which can be presumed to have taken place at the date of this suit in 1951 and not earlier, the 1/6th share of Uttamram would go half and half to Hariram and Madanlal. It may be pointed out that Govindram had already died in 1946 and, therefore, he would not be entitled to anything out of Uttamram's right or interest, he having predeceased Uttamram. I have also held that Randal's adoption to Govindram is not proved and, therefore, Ramlal cannot get anything so far as Uttamram's share is concerned, on the ground of his alleged sonship to Govindram. Uttamram's share in these circumstances can only go to Hariram and Madanlal half and half that is 1/12th of the total share; and the plaintiff Ramlal would of course be entitled to Govindram's share by his will. In this way, the shares of the parties in Shrilal's half share of the suit shops work out as follows:—

Plaintiff Ramlal gets 1/6th share being the legatee of Govindram. Hariram gets 1/12th as Ramvallabh's son and another 1/12th out of Uttamram's share, and Madanlal also similarly gets 1/12th plus 1/12, that is, 1/6th in all. The result is that Hariram had no right whatsoever to alienate out of Shrilal's half share the 1/6th share belonging to the plaintiff Ramlal and an equal share belonging to the other plaintiff Madanlal. I hold accordingly.

19. It only remains for me to dispose of one more contention which was raised by learned counsel for the contesting respondents and that is that there is evidence to show that Hariram had been exclusively realising the rents (of course with respect to Shrilal's half share) of one of the suit shop for a period of over twenty years, and that even Madanlal plaintiff had accepted this position in his deposition and, therefore, this Court should have come to the conclusion that this half share in one shop had gone exclusively to Hariram at the partition which took place between the grandsons of Kishenlal and reliance was also placed in this connection on the finding of this Court arrived at above that the joint family status had broken up during their lift-time. Support is also sought to be found for this contention on the evidence of D.W 1 Ranniwas son of Ramchandra who has deposed that he and his father have been occupying one of the suit shops as tenants for a very large number of years and that they had been paying rent with respect to half portion of one of the shops to Hariram only and that Govindram had never asked for rent of that shop from them nor had he ever paid any rent to Govindram at all.

20. I have carefully examined this contention and find myself unable to accept it. The reason is this. It has never been the defendant Hariram's case that he had been inter alia allotted half portion of one the shops exclusively at the family partition between himself and his cousins or even that the disruption of the joint status had come about for the first time between them. His case, on the other hand, was that earlier there had been a partition between the sons of Kishenlal, that is between his father and his uncles, and at that partition the entire half share of this family in the suit shops had been allotted to Ramdhan, and that he had been adopted by Ramdhan, and was as the latter's adopted son that he was entitled to the exclusive possession of the entire half portion of the two shops which belonged to his family. To establish this case, the defendant has failed miserably. And to held in these circumstances that a larger share had been allotted to Hariram when the joint family status broke up later would be making out an entirely new case for him. It is true that I have held in favour of the breaking up of the joint family status among these first cousins. But that does not of recessity or ever in probability lead to the conclusion that Hariram had been allotted a larger share in one of the Shops as now claimed by his learned counsel. No instrument of partition has been produced. Nor are the precise terms of partition proved. It may be that Hariram was allowed to recover rent with respect to the half share in one of the shops in addition to a part of the rent for the other shop for the other part of which there is evidence to show that rent was recovered by Govindram. (See the evidence of P.W Manaklal). According to Madan Lal, Hariram was the elder brother and so he used to recover this rent. There may have been other reasons why Hariram in this connection was allowed to have his own way. The parties were, after all, close relations and grandsons of a common ancestor. Govindram had no issue of his own. Hariram very likely had a large family to maintain. In these circumstances, I am not prepared to accept this contention of learned counsel, particularly as he never raised this defence in his written statement and the precise defence that he raised has been found by me to be absolutely false. Reference may be made in support of this view to Siddik Mahomad Shah v. Mst. Saran (5). Their lordships of the Privy Council laid down in that case that where a defendant did not raise the particular claim in his defence on which he seeks to rely at the trial, no amount of evidence can be looked into to establish such a plea which was never put forward. I hold accordingly.

21. No other point was argued before me on the side of the defendants.

22. For the reasons mentioned above, I allow this appeal, set aside the judgment and decree of the Civil Judge and hereby declare that the mortgage deed dated the 26th November, 1948, made by defendants respondents Nos. 1 to 4 in favour of defendants respondents Nos. 5 and 6 shall not be valid or operative to the extent of the one-sixth share of the plaintiff Ramlal and another one-sixth being the share of the other plaintiff Madanlal in the shops, in suit, it being valid only to the extent of one-half belonging to defendants Nos. 1 and 2 namely Ramniwas and Hariniwas and to the extent of one-sixth share belonging to Hariram therein. As to costs, I would direct that the plaintiffs shall only get half of the costs throughout from the contesting respondents as the pleading with which they came forward in this case was drawn up either with considerable carelessness or with deliberate ambiguity and that has been responsible for a good deal of confusion in and protraction of this litigation.