Judgement Appeal from a decree of the High Court (May 4, 1899) modifying a decree of the District Judge of Kistna (April 22, 1897). The suit was brought by respondent No. 1 (respondent No. 2, son of respondent No. 1, born after the institution of the suit, being afterwards added as second plaintiff), against the appellants and respondent No. 3, for partition of property alleged by the plaintiff to be joint family property, consisting of landed] and other property of great value. The first defendant set up that the property in suit was impartible, appertaining to the zemindary of Vallur, and that it had "always been treated as impartible by the members of the family," the succession to which had "always been governed by the rule of primogeniture, the junior members of the family enjoying only such maintenance as is granted to them by the zemindar for the time being." He also denied that he managed from the death of his father on behalf of himself and the plaintiff, and that the plaintiff had demanded a partition. 5 Law. Rep. 29 Ind. App. 76 ( 1901- 1902) Raja Bommadevara Venkata v. Raja Bommadevara 16 He alleged that the plaintiff had "fraudulently concealed the properties in his possession, and that properties worth about two lacs and a half, described in Scheds. I. and II. attached to his written statement, are in the possession of the plaintiff and the first and second wives of the first defendant, who at the instigation of the plaintiff have deserted the first defendant, and are now living with the plaintiff." He also contended that in any case the suit could not be maintained for want of "necessary parties," and because it did not include "all the properties which ought to be brought into hotchpot." The issue as to impartibility was abandoned in the First Court, and was not allowed to be reopened in the High Court on the ground that the pleaders who abandoned it had not exceeded their powers, and that the first defendant was bound by their act. An application by the first defendant after issues had been settled to raise an additional issue as to limitation was refused by the following order of the District Judge— "Defendant based his defence on the impartibility of the zemindary. No mention was made in the written statement that the claim was time-barred. An application by the first defendant after issues had been settled to raise an additional issue as to limitation was refused by the following order of the District Judge— "Defendant based his defence on the impartibility of the zemindary. No mention was made in the written statement that the claim was time-barred. Apparently the object of the issue is now to put forward another title by prescription. It appears to me too late to allow defendant to shift his ground now. It would necessitate another lengthy adjournment and interrogatories. If it is conceded that the family is joint and the estate partible, plaintiff cannot be said to have been excluded while in receipt of maintenance." This order was affirmed by the High Court. Both Courts concurred in finding that the plaintiff was not "in possession of any other property besides that which he admitted to be in the possession of his wife, and in holding that such possession as he admitted did not render his suit a suit for partial partition, or affect his right to claim a partition of the estate. The First Court made a decree for partition of the whole of the family property, with the exception of the property mentioned in Sched. I. to the written statement, the claim of the plaintiffs to a share of which the learned judge held that they had foregone, by omitting mention of it in the plaint. In the appeal to the High Court the respondents Nos. 1 and 2 presented memoranda of objection to this portion of the decree of the First Court, and also to a direction postponing or appearing to postpone the payment of their share in the surplus profits of the estate. The High Court allowed the respondents objections. Mayne and Cottari Venketramanah Nayudu, for the appellants, besides contending that the decree of the High Court was wrong upon the evidence, contended that the Court ought to have raised an issue as to limitation. The pleadings on their true construction raised it, and it was asked for before the trial had begun. His written statement put in issue whether he was in possession from 1869 to 1895 on behalf of himself and the first plaintiff, or whether he was in possession exclusively for himself. The pleadings on their true construction raised it, and it was asked for before the trial had begun. His written statement put in issue whether he was in possession from 1869 to 1895 on behalf of himself and the first plaintiff, or whether he was in possession exclusively for himself. The facts were sufficiently stated to raise the plea of limitation, and the Court was bound to raise it at any stage, especially on the application of the defendant not merely to raise it, but to adduce evidence in its support. They also submitted that the pleaders had no power of their own accord and without instructions to that effect to abandon the issue as to impartibility, and that the appellants had a right to have that issue tried, and to put in all their evidence relating thereto. Further, the 5 Law. Rep. 29 Ind. App. 76 ( 1901- 1902) Raja Bommadevara Venkata v. Raja Bommadevara 17 suit was wrongly conceived in that it sought a partial partition, excepting property in the possession of the plaintiff. The plaintiff had intentionally abandoned part of his cause of action see s. 43 of the Civil Procedure Code. Reference was made to Nanabhai Vallabdhas v. Nathabai Haribhai (( 1870) 7 Bomb. H. C. A. C. J. 46.), Parvathi v. Manjayakarantha (( 1870) 5 Madr. H. C. 193.), and Jogendranath Mukerji v. Jugobundhu Mukerji. (( 1886) Ind. L. R. 14 Calc. 122.) Jardine, K.C., Phillips, Shephard, and L. C. Krishnan, for the respondents Nos. 1 and 2, were not heard. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. This is an appeal against a judgment of the High Court at Madras, which affirmed with some modifications a decree of the District Court of Kistna in that Presidency. The suit was brought to obtain a partition of the zemindary of Vallur and the movable and immovable property held therewith. The principal plaintiff is the younger brother of the principal defendant, the other parties being minor sons of the plaintiff and defendant respectively, who were made parties for conformity. The property in question is of considerable amount, and the suit was hotly contested, many issues being raised to which it is unnecessary now to refer. The principal plaintiff is the younger brother of the principal defendant, the other parties being minor sons of the plaintiff and defendant respectively, who were made parties for conformity. The property in question is of considerable amount, and the suit was hotly contested, many issues being raised to which it is unnecessary now to refer. The main contention in the District Court was that, whereas the principal plaintiff alleged that the parties were members of an undivided Hindu family, the principal defendant asserted that the zemindary was impartible by family custom, and that the junior members were only entitled to maintenance out of the family estate. But after a certain amount of evidence had been recorded, this contention was abandoned by the defendants vakils, and the issue was decided in favour of the plaintiffs. It was one of the grounds of appeal to the High Court that the vakils exceeded their authority in giving up this issue; but the High Court held that a vakils " general powers in the conduct of a suit include the abandonment of an issue which, in his discretion, he thinks it inadvisable to press "; and in this opinion their Lordships concur. Before the issue of impartibility was decided, and before any evidence had been recorded, the defendants vakils applied to raise a general issue that the suit was time-barred, and the District Judges refusal to raise such an issue has been made a ground of appeal both in the High Court and before their Lordships. But no question of limitation is raised upon the pleadings, and the judges of the High Court held that although the District Judge had a discretion to raise such an issue, even at the stage of the proceedings at which it was asked for, he was not bound to raise it, and rightly exercised his discretion in refusing to do so. The written statement merely contains a traverse of the allegation that the principal appellant had managed the properties on behalf of himself and the plaintiff. The facts stated in the pleadings as to the appellants possession were at least consistent with either hypothesis that the zemindary was impartible, or that it was partible family property. The character of the possession was dependent on the determination of that issue. The facts stated in the pleadings as to the appellants possession were at least consistent with either hypothesis that the zemindary was impartible, or that it was partible family property. The character of the possession was dependent on the determination of that issue. In their Lordships opinion no question of limitation was either raised by the pleadings or arose upon the evidence, and it was not obligatory on the judge to direct an issue. Three questions were raised before their Lordships with regard to details of the property to be included in the partition. The first of these related to a hoard of gold coins, called varahalu petta, of the estimated value of ten lacs of rupees or thereabouts. This hoard is said to have originated in loot obtained at the siege of Seringapatam by the founder of the family (who was a contractor attached to the British force), and to have been concealed for many years in a hollow beam in the Fort of Vallur. From this receptacle, some twenty years ago, according to the principal plaintiffs story, the principal plaintiff and the principal defendant removed the treasure, which was then found to consist of 107,000 5 Law. Rep. 29 Ind. App. 76 ( 1901- 1902) Raja Bommadevara Venkata v. Raja Bommadevara 18 pagodas, and placed it in a chest in the main hall of the fort, where it was watched night and day by a guard. In 1888 an attempt was made to steal the chest, and the treasure was consequently transferred to an iron safe in another room in the fort, with a guard outside the window. In 1894 it is suggested that the principal defendant paid a flying visit to Vallur and removed the treasure and other valuables. It was contended before their Lordships that this was an incredible story, and no doubt it does contain some elements of romance; but the District Judge, who heard the evidence and saw the witnesses, believed it, and the High Court, after careful consideration, confirmed the finding of the District Court both as to the existence and value of the treasure. From this concurrent opinion of both Courts upon a question of fact their Lordships see no reason to dissent. From this concurrent opinion of both Courts upon a question of fact their Lordships see no reason to dissent. The second question is as to certain jewels, designated as samasthanam, or estate family jewels—that is to say, jewels belonging to the estate, and worn by members of the family on special festival occasions. There is some conflict of evidence as to the place of custody of these jewels, but it is admitted that they were not in the possession of the principal plaintiff, and the High Court held that, as the principal defendant admitted the existence of these jewels as joint family property, and could not charge the principal plaintiff with possession of them, he, as manager of the family, was primarily responsible, and was bound to account for them. This appears to their Lordships to be a correct conclusion. The last question is as to certain jewels enumerated in Scheds. H 1 and H 2 to the plaint, which are admitted to be in the possession of the principal plaintiff, and which for some inadequate reason he at first appears to have considered not liable to partition. It was argued that his failure to disclose at the outset his possession of this property converted the suit into one for partial partition only, and that the suit ought, therefore, to have been dismissed. But their Lordships cannot assent to this argument. The plaint seeks a complete partition of the whole of the family property, and at an early stage of the case ,the principal plaintiff expressed his willingness to bring these jewels into hotchpot. The decree of the District Court accordingly directs a valuation and a scheme of division into two equal shares of the movables mentioned in Scheds. H 1 and H 2 as well as of the rest of the family property. There is, therefore, no question of partial partition. For these reasons their Lordships will humbly advise His Majesty that the decree of the High Court ought to be confirmed, and this appeal dismissed. The appellants must pay "the costs of the first and second respondents, who alone defended this appeal; but the appellants are not to be called upon to pay any costs incidental to the appendix to the record, which was sent at the request and at the costs of the respondents, and was not used in the proceedings here.