JUDGMENT : STANLEY, J. All the defendants have acquiesced in the decision of the Court below with the exception of the defendants, Chakauri Singh, who is a minor and Bansgopal Singh, They have filed the present appeal and before us have pressed four grounds of appeal, namely:— (1) That the plaint was not properly verified; (2) That the suit is bad for misjoinder of parties and causes of action; (3) That the property in dispute was not the separate property of Kishen Dayal Singh, but was the joint property of Kishen Dayal Singh and the members of the other two branches of the family of Karta Singh; and (4) That the plaintiffs have failed to establish that they are the daughters of Kishen Dayal Singh. 2. I shall deal with these questions in order. The objection to the verification of plaint is that Dip Singh under a special power of attorney from Musammat Suraj Kuar alone verified it, and that there is no verification by Rup Raj Kuar. 3. We find that not merely was the plaint signed in autograph by Rup Raj Kuer, but that she signed her name in autograph under the verification made by Dip Singh. It is manifest that in appending her signature to his declaration she intended this as a verification of the plaint. The point raised is a futile one, and I would reject it. 4. The next ground of appeal is that the suit is bad for misjoinder of parties and causes of action. There appears to me no doubt that the suit is faulty in this respect, but it is clear that the appellants were in no way prejudiced by the misjoinder. On the contrary, it was for their advantage that the questions in issue between the plaintiffs and the other defendants should be determined in one and the same suit, and not in separate suit. They would have been necessary parties to each suit brought by the plaintiffs in respect of the several causes of action, and the irregularity which has been committed in no way affects the merits of the case or the jurisdiction of the Court. Having regard to the provision of section 578 of the Code of Civil Procedure, this ground of appeal has in my judgment no force (see Kalyan Singh v. Gurdayal, [1881] I.L.R., 4 All., 163). 5. Having regard to the provision of section 578 of the Code of Civil Procedure, this ground of appeal has in my judgment no force (see Kalyan Singh v. Gurdayal, [1881] I.L.R., 4 All., 163). 5. I now come to the third ground of appeal, as to which owing to the conflict of evidence I have found some difficulty in coming to a determination. It is to be borne in mind that the plaintiffs-respondents succeeded in establishing in the Court below that the property in dispute was the separate property of Kishen Dayal Singh. The onus therefore lies upon the defendants-appellants of satisfying the Court that this decision is erroneous. 6. [His Lordship, after discussing the oral evidence, proceeded thus:—] The evidence of these witnesses by itself is not of a character which can be regarded as of much value but it must not be lost sight of that Kishen Dayal Singh died upwards of 30 years ago and but little payrol evidence of a separation would ordinarily be now procurable. Taken in conjunction with the documentary evidence to which I shall now refer; it is not unimportant. It is a significant fact that with the exception of the two appellants the other members of the family have accepted the decision of the Court below and none of them have ventured into the witness-box to controvert the case made by the plaintiffs. 7. It is settled law that a partition by agreement is complete without apportionment. If the members of a joint family agreed to become separate in title, it is not necessary in order to complete the separation that there should be an actual partition by metes and bounds. In the case of Appovier v. Subba Aiyan, [1886] 11 M.J.A., 75, their Lordships of the Privy Council say at page 92, “If there be a conversion of the joint tenancy of an undivided family into tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to the property which is the subject-matter of that agreement, and that is a separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right.” 8. This may at any time be claimed by virtue of the separate right.” 8. One fact to be noted is that after the death of Kishen Dayal Singh his widows were recorded as owners. This of itself is not a matter to which much weight can be attached, inasmuch as not infrequently the heirs of a deceased Hindu allow the name of his widow to be recorded as owner, as it is said, for her consolation. If, however, we find in documents of title that separate ownership is recognized, the fact that a widow has been recorded as owner is not unimportant. 9. [His Lordship, after discussing the documentary evidence, proceeded thus:—] The weight of evidence on this point appears to me to be altogether on the side of the respondents. Our attention has not been called to any evidence which leads me to think that the decision of the court below was erroneous. 10. The last question for our determination is the parentage of the plaintiffs-respondents. It is a remarkable fact that not one of the defendants has ventured into the witness-box and denied that the plaintiffs are the daughters of Kishen Dayal Singh. Even, the adult appellant Bansgopal has not denied their paternity. A deposition which was made by the defendant, Dund Bahadur, who is the son of the plaintiff Suraj Kuer, on the 16th of April, 1899, on the occasion of an inquiry by the Naib Tahsildar, held in connection with mutation proceedings in respect of mauza Jhar-kata, was sought to be relied on by the appellants. In this deposition he alleged that Lachhmina Kuar died childless and that Kishen Dayal had no issue, male or female, by his wife Sunder Kuer, except Suraj Kuer. This deposition was objected to on behalf of the plaintiffs-respondents as being inadmissible. The learned Subordinate Judge in his judgment referred to the report of the Naib Tahsildar as evidence that the plaintiffs are the daughters of Kishen Dayal Singh, The defendants-appellants rely upon the deposition of Dund Bahadur as evidence that Lachhmina Kuer died childless. This deposition was objected to on behalf of the plaintiffs-respondents as being inadmissible. The learned Subordinate Judge in his judgment referred to the report of the Naib Tahsildar as evidence that the plaintiffs are the daughters of Kishen Dayal Singh, The defendants-appellants rely upon the deposition of Dund Bahadur as evidence that Lachhmina Kuer died childless. It seems to me that neither the report of the Tahsildar nor the deposition of Dund Bahadur is legally admissible in evidence, As regards the deposition of Dund Bahadur, he was a defendant to the suit and might have tendered himself for examination, If he had been examined and had given evidence inconsistent with the evidence which he gave before the Naib Tahsildar he might have been confronted in cross-examination with his former deposition. Not, however having been examined, I wholly fail to understand how a statement made by him can be admitted in evidence. Section 33 of the Evidence Act enumerates the cases in which the evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding or at a later stage of the same judicial proceeding the truth or the facts which it states. These are when a witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the Court considers unreasonable. Even in these cases a safe-guard is provided. Such evidence is only admissible when the proceeding was between the same parties or their representatives in interest; and the adverse party in the first proceeding had the right and opportunity to cross-examine; and the questions in issue were substantially the same in the first as in the second proceeding. This section obviously, I think, does not apply to the deposition made by Dund Bahadur, and I am clearly of opinion that the admission of his deposition would be a clear offence against the well-established rules of evidence. I would therefore unhesitatingly reject it. 11. This section obviously, I think, does not apply to the deposition made by Dund Bahadur, and I am clearly of opinion that the admission of his deposition would be a clear offence against the well-established rules of evidence. I would therefore unhesitatingly reject it. 11. [His Lordship, after discussing the evidence further, proceeded thus:—] It seems to me that the conduct of the defendants is inexplicable on any other basis than that they are well aware that the plaintiffs are the daughters of Kishen Dayal Singh. As I have already pointed out, with the exception of Bans-gopal Singh and the minor Chakauri Singh, the other defendants have acquiesced in the judgment of the Court below and have not appealed. The case is one by no means free from difficulty owing to the serious conflict in the evidence of the witnesses who have been examined no both sides, as well as the inconsistencies to be found in the documents to which I have referred. It seems to me, however, that the weight of evidence is on the plaintiffs-respondents' side and that the Court below came to a right conclusion. I would for the foregoing reasons dismiss the appeal with costs. BANERJI, J. I agree with the learned Chief Justice in the conclusions at which he has arrived. Upon the question of the admissibility in evidence of the deposition of Dund Bahadur Singh, dated the 16th of April, 1899, I express no opinion. Even if that deposition be admitted, it is not sufficient to rebut the evidence, detailed in the judgment of the learned Chief Justice which establishes the parentage of the plaintiffs, and to justify us in interfering with the finding of the Court below, a finding in which almost all the members of the family have acquiesced. The statement of Dund Bahadur Singh was manifestly made to defeat the claim set up by Bachhan Singh, son of Rup Raj Kuer, and seems to have been untruly made, I agree in dismissing the appeal with costs. BY THE COURT.— The order of the Court is that the appeal be dismissed with costs.