Stanley, C.J:— This is an appeal from a decree of the Subordinate Judge of Agra, dismissing the plaintiffs suit which was brought for a declaration that the defendants have no proprietary right in a village called Jaingara, and that the plaintiff alone is the absolute owner of the village, The plaintiff, Jangi Nath, is the eldest son of one Baij Nath, and the defendants are four of his brothers. His case is, that on the 27th May, 1863, one Rao Joti Prasad, the father-in-law of his father, Baij Nath, made an out-and-out gift to him of the entire village, and that his name was thereupon recorded as owner of it in the Khewat, and he had since remained in proprietary possession and enjoyment of the property. The defendants in their written statements allege that Rao Joti Prasad gave the village to all his grandsons, and that the plaintiff and they have all along been enjoying the profits of it from the time of the gift to the present time, and that they are all owners of the property an equal shares. One of the defendants, Gokul Nath, was not born at the date of the deed of gift. The Subordinate Judge accepted the view of the defendants and dismissed the suit, and hence this appeal.

2. The following facts may be gathered from the evidence:— When the plaintiff was a lad of 5 or 6 years, the deed of gift was executed, After, a recital of the title of Rao Joti Prasad, the operative part of the deed is in these terms:— “As Jangi Nath, son of Babu Baij Nath, is my grandson (daughter's son) and I wish to do him a favour, I, of my own accord and while in a sound state of body and mind, have made a gift in favour of the above-named grandson of mine of the whole of the said village with culturable and unculturable land From this date the donee should consider himself to be the absolute owner of the said village as my representative, and he should remain in possession and enjoyment of and should draw the benefit of it and suffer the loss. I should get the mutation of names effected in the Revenue Court, My heir and I have no claim in respect of or anything to do with the said property. Therefore I have written these presents by way of a deed of gift to serve as evidence and to be of use in time of need.” The deed is attested by five witnesses and was registered on the 27th June, 1863. On the following 12th June, 1863, and application for mutation of names was granted, and the plaintiff was recorded as owner in the Khewat. Joti Prasad lived until the year 1872. On the 26th November, 1872, after the death of Joti Prasad, Baij Nath, at the instance of Government, signed an agreement as guardian of the plaintiff, who is described in the agreement as lambardar of the village Jaingara, whereby he undertook to pay Government revenue and other outgoings in respect of the village from the 1st July, 1872, up to the time of the revision of settlement. Decrees for rent were at this time obtained against tenants at the suit of the plaintiff, and so far there is nothing whatever to suggest that the gift made by Joti Prasad was anything else than an absolute gift in favour of the plaintiff. So far as we can gather from the evidence, Joti Prasad did not in his lifetime evidence any desire or intention that the gift should be otherwise regarded. The plaintiff was recorded as owner, recovered rents from the tenants, paid the Government revenue and exercised all the rights of ownership without interference or question until the year 1879, when for the first time an alteration was made in the Khewat which undoubtedly was the origin of the present litigation. In this year, on the revision of settlement upon a report made by one of the settlement Munsarims, whose duty it was to look after the preparation of the record of rights, that the plaintiff and his brothers were equally entitled to the village, the names of the defendants were recorded with the plaintiff in the Khewat as Pattidars, while the plaintiff's name continued to be entered as lambardar. It is to be observed that this change was made apparently not at the instance of any of the parties, but on the initiative of the Munsarim who reported that the defendants were entitled to the village equally with the plaintiff. The plaintiff, it is said, objected to the change, but does not appear to have pressed his objection, for we find in the order of the Settlement Deputy Collector in charge of the Settlement (No. 32 C of the record), passed on the application of the plaintiff for the expungement of the names of his brothers from the Khewat, a statement that Jangi Nath failed to appear to support his objection, and so his claim was struck off for default. The plaintiff says that he was not aware of these proceedings, and that the change in the Khewat was made without his knowledge. This change was made on a misconception of the true fact for in the order there is a statement that the village was given to Musammat Kashi Dei, the mother of the plaintiff and the defendants, by Joti Prasad under a will. This is untrue, inasmuch as the property was not given to Kashi Dei at all, but was transferred to the plaintiff by the deed which we have referred to. The Settlement Deputy Collector and his Munsarim evidently had no accurate information as to the true facts of the case. The Munsarim made a mistake which the Deputy Collector blindly followed. From this time forward the plaintiff did not take any steps to have his brothers' names expunged from the Khewat, but allowed things to remain as they were.

3. It has been shown that he joined with his brothers in executing a Vakalatnama, appointing pleaders for the prosecution of a suit against a tenant who had cut a tree, and that in the plaint he and his brothers are described as lambardars of the village. He also joined, with his brothers in an application for the removal of the patwari of the village on the ground of alleged misconduct and in the application as also in an appeal to the Collector the plaintiff and his brothers were described as zamindars of mauza Jaingara. In the Vakalatnama of 17th July, 1884, appointing pleaders in connection with the application for the dismissal of the patwari, the plaintiff is described as lambardar and the defendant as zamindar of mauza Jaingara. The plaintiff all along continued to collect the rents of the village, but it would seem that he permitted his brothers' names to remain and recorded as pattidars and to be associated with his in a number of legal proceedings in which they were described as pattidars or zamindars. It is alleged by the defendants, but denied by the plaintiff, that the defendants received their shares of the rents and profits of the village. The case made by the defendants in the court below was that the gift made by the Joti Prasad was intended to be a gift in favour of the defendants and the plaintiff equally, but before us their pleader has abandoned this contention, and in place of it has argued on their behalf that though the defendants were not objects of the bounty of Joti Prasad and acquired no title whatever under the deed of gift made by him to the plaintiff, yet that the facts establish that subsequently to the date of that deed the plaintiff transferred his exclusive interest in the property from himself alone to himself and his brothers; that in fact the property Was voluntarily thrown by the plaintiff into the common stock with the intention of abandoning all separate claims upon it. Did the plaintiff do so? and if so, at what time did the transfer take place?

4. Now, in the year 1886, a transaction which is not unimportant occurred. Baij Nath, the father of the parties, in his life time had started a banking business in the name of Baij Nath Jangi Nath, and for the purpose of that business borrowed moneys from various people and amongst others from the firm of Bansi-dhar Chunni Lal, Baij Nath died on the 6th December, 1885, and on the following 12th July, 1886, a suit was instituted by the firm of Bansidhar Chunni Lal for recovery of the amount due to them, In this suit the plaintiff and his brothers were impleaded as defendants, as sons and heirs in possession of the property of Baij Nath. Jangi Nath alone filed a written statement, and in it he alleged that he did not borrow any money from the plaintiff's firm but he admitted that money was borrowed by his father, Baij Nath, for which hundis were drawn in favour of the plaintiffs. He consented to a decree being passed for the amount which might be found to be due to the plaintiffs against the joint property left by Baij Nath. This property he estimated to be of the value of Rs. 35,000 and upwards, He asked in his written statement that the amount due might first be realized from the joint property left by Baij Nath. Before the hearing a compromise was entered into between the plaintiffs and Jangi Nath, the terms of which are set forth in the decree which was passed on the 17th December, 1886. The compromise was that the decree-holder should realize the amount of the decree, first from the estate of Baij Nath, situate in the cities of Agra, Muttra and Maiupuri, and that if the entire amount could not be recovered from this estate within a year and a half from the date of the first execution of the decree, the decree-holder should be competent to recover the balance by sale and attachment of mauza Jaingara which is stated “to have been given to Jangi Nath under a deed of gift, dated the 14th March, 1863, and registered on the 27th May, 1863, by Rao Joti Prasad, deceased “: that if the plaintiffs were unlikely to recover the decree-money within one and a half years from the estate of Baij Nath, then the whole or any portion of mauza Jaingara owned by this defendant (that is, Jangi Nath) could be attached and sold. The decree provided that the defendants' persons and properly should not be liable for the amount of the decree or costs. This decree was passed in the presence of the pleader for the defendants in the present suit as well as in the presence of the pleader for Jangi Nath. Here is a clear assertion of title by the plaintiff wholly inconsistent with the case now put forward, by the defendants that the plaintiff had thrown the village Jaingara into the common stock. It appears that on the same day on which this decree was passed, the defendants presented a petition to the court in which they alleged that Jangi Nath and they had equal shares in the village Jaingara, and that their shares in the village should not be sold in satisfaction of the decree, But nothing further was done by them in the matter. As a matter of fact, the village Jaingara was attached and sold by auction in execution of the decree, but the sale was cancelled upon the plaintiff agreeing to pay the balance of the decretal amount by installments; and subsequently all the installments were paid by the plaintiff between the years 1889 and 1893 from the profits of Jaingara and the decree was thus satisfied, It thus appears that the plaintiff at this time dealt with Jaingara as being his exclusive property, and that the defendants did not attempt to enforce their alleged rights in respect of it.

5. The oral evidence, it will thus be seen, is very conflicting and it is by no means easy to say on which side the truth lies. It must, however be borne in mind that once the plaintiff had proved the gift from his grandfather; and the entry of his name in the village papers in substitution for’ his grandfather's, the burden of proof lay on the defendants to establish their allegation as to their alleged rights in Jaingara. It is clear that at the date of the suit of Bansi Dhar Chunni Lal, the plaintiff laid claim to exclusive possession of the village and treated it as his own property, that the defendants permitted him to apply the profits in satisfaction of the decree obtained by Chunni Lal, and that no steps were taken by them to enforce their alleged rights until the 22nd April, 1898, when they filed an application in the Revenue Court for partition of the property. The conclusion we are disposed to come to is that the plaintiff's exclusive ownership was recognized until the revision of settlement in 1879, that upon that revision inaccurate information as to the title to the property was supplied to the Settlement Officer by some person acting in the interests of the defendants, or it may be in ignorance of the true state of facts, and that the names of the defendants were in consequence entered in the khewat, and that the plaintiff, although he may have filed a petition to have the names of the defendants expunged from the khewat, did not think it necessary to contest the matter, seeing that he was entered in the khewat as the lambardar and received the rents and profits through the karindas. We are disposed to think also that the plaintiff did make payments to his brothers out of his own income, but that such payments were made gratuitously and of his mere bounty and were of much less amount than the defendants and their witnesses would have us believe. Assuming this to be the true state of facts, it remains for us to consider what legal inferences can be drawn therefrom. It is now admitted by the respondents pleader that the respondents acquired no title under the deed of gift. He could not support the finding of the Subordinate. Judge that the intention of the donor was to benefit the family generally. He was obliged to abandon this finding and to put forward an entirely new case, namely, that though the plaintiff became and was absolutely the exclusive owner under the deed of gift made in 1863, yet that subsequently he voluntarily threw the property into the common stock with the intention of abandoning all separate claims upon it; that in fact from the conduct and acts of the plaintiff, it must be found that he divested himself of the exclusive ownership and vested the property in himself and the respondents equally’. This, it should be most emphatically noted, was not the defence set up in the court of first instance, It has been evolved by the ingenuity of the learned advocate who represented the defendants and who threw aside the findings of the Subordinate Judge. Now it is clear that self-acquired property of a member of a joint Hindu family may become joint property in this way, but in order to create such a new title there must be shewn a clear intention on the part of the owner to abandon his separate rights. Acts which may have been done out of affection or from kind motives will not be construed as a necessary, indication of such intention. The case of Lala Muddan Gopal Lal v. Khikhinda Koer(1) is an instructive one on this subject. In that case a younger brother, Sadho Ram, who was deaf and dumb from birth and so incapable according to Hindu Law of inheriting property, had for many years been treated by his elder brother as if he had been under no incapacity. His name was entered as joint owner in the revenue records, and documents were issued and taken in his name, For a number of years his case had been treated by the family as one that might be cured. Ultimately when there was no hope of his cure, a family arrangement was entered into by which he was set aside as incapacitated. A suit was brought after the death of Sadho Ram by a collateral relation of Sadho Ram, who was the last survivor of three brothers claiming to be entitled to sell Sadho Ram's estate. On the part of the defendant the disqualification of Sadho Ram was set up. It was held in the lower court that though Sadho Ram was not comptent to take by inheritance, he might take by gift and that the conduct of Kuldip (who was his elder brother) in recognizing Sadho Ram as joint owner after his incapacity became apparent, amounted to the creation of a new title in favour of Sadho Ram and constituted him a joint tenant with Kuldip. On appeal to the High Court it was held by Wilson and O'Kinealy, JJ., that as to the legal result of the mode in which Kuldip had dealt with his brother, it, had the effect of giving a new and good title to Sadho Ram, either by way of family arrangement or by virtue of the law of limitation. On appeal from the decision of the High, Court, Lord Macnaghten, who delivered the judgment of their Lordships of the Privy Council, in the course of his judgment thus dealt with this question: “They “(their Lordships)” are unable to agree with the High Court in thinking that the acts and conduct of Kuldip operated to create a new title in Sadho Ram. Undoubtedly/up to the year 1856, Kuldip did in every way and on every occasion recognize Sadho Ram as jointly interested with him in the family property. Nothing perhaps shows this recognition more plainly than the line of defence adopted in the litigation with Rajbansi, in which her claim was defeated by setting up Sadho Ram's interest, It is also shown by a deed of conveyance, by a petition for registration, by leases and other documentary evidence. But nevertheless their Lordships think, it would be wrong to hold that Kuldip's position was prejudiced by his conduct, Kuldip naturally and properly treated this afflicted brother as a member of the family and entitled to equal rights until it became absolutely clear that his malady was incurable. Their Lordships think it would not be reasonable, or conducive to the peace and welfare of families, to construe acts done out of kindness and affection to the disadvantage of the doer of them, by inferring a gift when it is plain that no gift could have been intended.

“Their Lordships are satisfied that there is no ground for supposing that Kuldip intended to divest himself of his own property or to waive any rights accruing to him by reason of Sadho Ham's incapacity; and they are equally clear that there is no principle of law founded on the doctrine of estoppel or laches or the law of limitation or otherwise which compels them to hold that under the circumstances of this case Kuldip's acts and conduct had an effect and operation which he could not have intended or contemplated.” In this case it is to be observed that for a number of years the title of Sadho Ram was in every way and on every occasion recognized by his brother.

6. Again in a case in which a party had joined in a petition, praying that his paternal uncle might be entered dakhilkharij in the revenue records and in which mutation of names was accordingly effected in favour of the uncle, it was held by ‘ their Lordships of the Privy Council that there might be a withdrawal of any admission of title contained in the petition. This was the case of Muhammad Imam Ali Khan v. Husain Khan. Lord Hobhouse in delivering the judgment of their Lordships at page 100, observes:— They do not see how the proceedings bar the right of the plaintiff to assert his legal title. Supposing that in 1878 he believed them to be true and made them spontaneously, why should he not assert the true state of the case after he has learned it? An Oudh taluka cannot be transferred like an ordinary estate under Mohammedan or Hindu law, because the Oudh Estate Act requires special modes of transfer. It is not now contended that the mutation operated as a transfer, it would be absurd to suppose that the plaintiff made any miss presentation to the defendant, neither was the situation of the defendant altered in any way to his prejudice. No consideration was given by the defendant, nor is there anything in the transaction to create a trust. Possibly it might have given the defendant a possession on which time would run; but if so, time has not run long enough to create a bar. Mr. Ross, who pressed this part of his case very earnestly, though with great fairness, rested mainly, as their Lordships understood, on the admission of title made by the plaintiff, but a gratuitous admission may be withdrawn unless there is some obligation not to withdraw it; and there is not here any title on which such an admission can rest. If then there is no transfer, nor estoppel, no bar by time, no trust, why should not the plaintiff assert his legal rights, whatever he may, in ignorance of the fact or in deference to his uncle or for any other cause not injurious to the defendant, have admitted? Their Lordships hold that he can assert them. In the present case the evidence satisfies us that the plaintiff never recognized any legal right in his brothers to share in the village in dispute and never showed any intention on his part to bring the village into the common stock; at the utmost he suffered their names to be entered and retained, in the record of right as pattidars. No consideration passed from his brothers to him for any share in the property, nor was the position of the defendants in any way altered to their prejudice by any act of his so as to entitle them to set up against him an estoppel by conduct. Up to the revision of settlement in 1879, beyond question, the plaintiff was the exclusive owner of the village under the deed of gift, and we fail to find any evidence from which it can be held that he divested himself of his interest in any portion of it. For these reasons the decree of the learned Subordinate Judge cannot in our opinion be supported. The plaintiff is in our opinion clearly entitled to the relief claimed in his plaint. Accordingly we allow the appeal, set aside the decree of the lower court and declare that the defendants have no proprietary right in any portion of the village in the pleadings mentioned, and that the plaintiff alone is absolute owner of that village, and that the defendant have no right and are not competent to have the village partitioned. We direct that the defendants pay the costs of this appeal and also the costs in the court below.

T.B.SAppeal allowed.