JUDGMENT CHANDRASEKHARA AIYAR, J. This is an appeal from the judgment and decree of the High Court of Bombay in First Appeal No. 120 of 1940, reversing the decree of the First Class Subordinate Judge of Surat in Suit No. 221 of 1938, the case fulfilling the requirements of Section 110 of the Civil Procedure Code as to the value of the subject-matter in dispute. The suit was one for partition of movable and immovable properties and it was filed by Jaymangavri, widow of one Vyomeshchandra, and two others, claiming as executors under the last will and codicil of Vyomeshchandra against Vyomeshchandra's brothers, Mangesh and Ashok, and Bai Sumitra, widow of Bhaskar, another brother. The genealogy showing the relationship is set out in the judgment of the High Court delivered on 16-03-1942 and it is to be found at P. 108 of the printed paper book. It was claimed that the properties were joint family properties of Janardan and his four sons, and that Vyomeshchandra, the husband of the plaintiff, expressed his intention to separate himself from the family even in the year 1928 and that he followed up this oral declaration by a written notice to the other members on 10-9-1929. He had also made a will on the previous date. This suit of the widow was resisted by the three defendants, who alleged that the properties were the separate self-acquired properties of Janardan, the first defendant, and that Vyomeshchandra had no share or interest therein. 2. The Subordinate Judge of Surat who tried the suit held that the properties were the sole and absolute properties of the first defendant and that Vyomeshchandra had no share therein. The contention that even if the properties were regarded as the separate properties of Janardan, they became converted into joint family properties, was negatived by the Subordinate Judge on the ground that there was no satisfactory evidence to prove any such conversion. Some minor issues were also decided by him, but they are not material now. The result was the dismissal of the plaintiff's suit with costs. 3. Some minor issues were also decided by him, but they are not material now. The result was the dismissal of the plaintiff's suit with costs. 3. On the appeal, the Bombay High Court concurred with the findings of the Subordinate Judge that the properties which came to Janardan, the first defendant under the will of his father, Virbhadra, in 1894, were his separate properties, but on the question whether they were converted later on into joint family properties, the learned Judges found that as it was not made the subject of any specific issue, the parties might have been at a disadvantage in the matter of leading evidence, and so they framed the following issue: “Whether the plaintiffs prove that Defendant 1 converted his self-acquired property into the joint family property of himself and his sons including Vyomeshchandra, or that Defendant 1 and his sons including Vyomeshchandra blended their separate earnings and threw them into a common stock with the result that the whole property became joint family property”; and directed the lower court to submit a finding after taking any additional evidence that the parties might wish to adduce. 4. Additional evidence was recorded and the Subordinate Judge in a lengthy order set up a finding in the negative. Several admissions made by Janardan in correspondence prior to the suit or in proceedings before the court to the effect that the properties were joint family properties were explained away as due to ignorance or a mistaken belief as to the true legal position on the part of the old man or as contained in letters marked “without prejudice”, which therefore could not be used against the party writing them, and that there was in fact no conversion or blending. The view of the Subordinate Judge is found tersely stated in these two sentences at page 151 of the paper book: “The result of all the documentary evidence containing admissions as referred to above will be that Janardan and his sons believed from the beginning that the properties were ancestral in the hands of Janardan and with this belief and impression Defendant 1 made statement to that effect in 1906-1907, 1926, 1928, 1935 and 1936. There is however nothing from the evidence in this case that can prove that these statements were made by Janardan knowingly and deliberately with a view to give up his right to the separate properties and to convert it as joint family properties.” 5. This finding, however, was not accepted by the learned Judges of the High Court, who came to the conclusion that there was sufficient evidence before the Court to show that Janardan knew, or must have known, that the properties he got under the will of his father were his separate properties and that he subsequently treated them as joint family properties. There was no scope for any mistaken belief on the part of Janardan. On this part of the case, they said:“On this conclusion the whole structure, which the lower court has raised on the abovementioned assumption, falls to the ground and the evidence must be examined on the basis that Janardan all along knew that the property came to him as his own. Janardan's admissions and conduct cannot be set aside as mistaken in fact or in law, and therefore, not binding, but they are to be assessed as proceedings from a person who knew that the property was his own and he can treat it as he liked.” In particular, they referred to the admission made by Janardan and his sons Mangesh and Ashok in a written statement that was filed in 1936 in connection with a succession certificate application filed by Defendant 4 the widow of Bhaskar, the other son, as regards monies standing in her husband's name in certain limited companies. Taking the view that the first defendant had knowledge that the properties he had got under his father's will were his separate properties and that his conduct and admissions were much more consistent with his intention to convert it into joint family properties than with his intention to keep it separate, they decreed the plaintiff's suit except the properties specified in Issues 3-A(a) and (b). 6. The decision of this appeal lies within a comparatively narrow compass, though we were taken at great length into the contents of several exhibits by the learned counsel for the appellants, who are Defendants 2 and 3 in their own right, and as legal representatives of the first defendant who died during the pendency of the appeal in the High Court. No reference was made to the correspondence that passed between the parties prior to the suit and this is but right because most of the letters were marked by the first defendant as “without prejudice”. The other admissions, whose admissibility in evidence could not be challenged for any such reason, were sought to be explained away on the ground that from the very commencement when Janardan got the properties under his father's will, he was labouring under the mistaken belief that they were joint family properties and that was why he said so, on so many occasions. According to the appellants, there is nothing on record to show that Janardan knew that the properties were his separate and absolute properties and that with this knowledge he treated them as joint family properties belonging to himself and his sons, when only a conversion as regards the nature of the properties can be recognised according to Hindu Law, as laid down in Naina Pillai v. Daivanai Ammal, AIR 1936 Mad 177 : (1936) 43 LW 302. 7. Before discussing this line of argument, a few facts may be stated as to the origin and the history of the properties. They belonged originally to Haribhadra, who died in 1804, leaving a widow called Ratankunver. Haribhadra had adopted a son called Purnabhadra, but this Purnabhadra renounced his interest as adopted son for some reason which is not apparent at this distance of time; and he did not take the properties of his adopted father. After Haribhadra's death, the widow, Ratankunver adopted Virbhadra in 1826. He died in 1894, leaving behind him three sons Janardan, Bhalchandra and Balkrishna, and a will under which he gave the properties to them in more or less equal shares. It is Ext. P-55. After Virbhadra's death, his three sons partitioned the properties in 1897-1898 in accordance with the directions contained in the father's will keeping certain properties as joint for convenience of management. Disputes arose subsequently between them with reference to the properties kept joint and some monetary dealings, and they entered into an amicable arrangement as regards the management. The agreement is evidenced by Ext. P-56, in which we find the recital or statement “the deceased Pathakji Virbhadraji and we the three brothers lived as members of a joint Hindu family. Disputes arose subsequently between them with reference to the properties kept joint and some monetary dealings, and they entered into an amicable arrangement as regards the management. The agreement is evidenced by Ext. P-56, in which we find the recital or statement “the deceased Pathakji Virbhadraji and we the three brothers lived as members of a joint Hindu family. After his death, we made a division amongst us of all the joint family property in Samvat 1954 (i.e. 1897-1898 AD).” In proceedings taken at the instance of relations of the family subsequent to his adoption and prior to Virbhadra's death, it was held that his adoption by Haribhadra's widow was invalid as Purnabhadra had already been adopted by the husband. 8. Therefore, Virbhadra could not be said to have got the properties from his adoptive father as joint family properties. If he got any title to them, it must have been by adverse possession against the rightful heirs or owners, and so, the property must be deemed to have been his self-acquired and separate property in which his sons had no interest by birth. This is the view taken by the courts below, and it is unexceptionable so far as it goes. It has also been held by the Subordinate Judge and by the High Court that Virbhadra's will (Ext. P-55) proceeds on the footing that they were his own properties which he could dispose of by will and there was no serious challenge of this position by the respondents here. What was sought to be argued, however, on their behalf is that the properties given to the sons under the will must be deemed to have been given as ancestral properties, so that the sons and the grandsons by the sons would get an interest by birth in the same and that there was authority of the Madras and Calcutta High Courts in support of this position. This, however, is a question on which there is a conflict between the several High Courts. This, however, is a question on which there is a conflict between the several High Courts. The Madras and Patna High Courts have taken the view that unless the father expresses his wish in making a gift or bequest that it should be deemed to be self-acquired in the hands of his son, it must be regarded as ancestral property, whereas the Bombay, Allahabad and Lahore High Courts have taken the contrary view that it should be deemed to be self-acquired in the absence of a clearly expressed intention that it should be taken as ancestral. It is however unnecessary to discuss these conflicting opinions in this appeal, for the reasons that this point was not raised by the respondents in their case lodged in this Court. Even a question of law must be raised in time so that the other side may not be taken by surprise. 9. We however, agree with the High Court in its finding that there was ample material on record from which it could be held that Janardan, the first defendant, must have known, when he got the properties under the will of his father, that they were his separate properties, in which his sons had no interest and that with this knowledge he was prepared subsequently to treat them as joint family properties belonging to himself and his three sons. In the first place his own evidence makes this quite clear. He stated “We three brothers had got property of our father through his will. Under the will, my son and Bhalchandra's son, who were then in existence, were not given anything. There was no intention expressed by my father to give anything to his grandsons.” After this evidence, there is no scope for saying that he was not aware of his rights about the properties that he got under the will and that he was labouring under a mistaken belief all along that they were all joint family properties. Even more important is the written statement filed by Janardan and his two sons, Mangesh and Ashok, opposing the grant of succession certificate to Sumitra, the fourth defendant. This is Ext. P-93. Para 3 of this written statement is as follows: “The deceased husband of the petitioner died without any issue, as a joint member of the joint family of us Opponents 1-2-3. This is Ext. P-93. Para 3 of this written statement is as follows: “The deceased husband of the petitioner died without any issue, as a joint member of the joint family of us Opponents 1-2-3. And as the petitioner is the widow of the deceased member of the joint Hindu family, she has no other legal right except the right of maintenance and residence and whatever joint (right) the husband of the petitioner had in the movable and immovable properties of the joint family, we the opponents have got the same by the right of survivorship. Therefore, the petitioner has no right to make such a petition. The story that the deceased husband of the petitioner separated from the joint (family) is entirely wrong. Therefore, as the statement that the petitioner is the heir of her deceased husband is false, we do not accept the same.” The significance of this plea is enhanced when we remember that the written statement was filed when correspondence was passing between the plaintiff's legal advisors on the one hand and the first defendant on the other as regards Vyomeshchandra's share in the properties. It is really unnecessary to multiply such instances which go to establish indubitably that Janardan throughout regarded the properties as belonging to the joint family consisting of himself and his sons. The main, if not the chief, contention of the appellant was that there was no satisfactory evidence to show that Janardan knew that he was converting separate property into joint family property, but enough has been said to show that this contention is not based on the facts as they emerge in the evidence. 10. Only one other point remains, and this relates to a sum of Rs 4885-3-6, which the first defendant said he had paid to Vyomeshchandra after 01-01-1929, the date of the notice to separate, and for which he had accounts. The Subordinate Judge held that the plaintiffs were bound to give credit for this sum in the account taking. The High Court directed that in the accounts, which the lower court had to take, the amount should be deducted from the amount that may be ascertained after taking accounts of the family income from the date of the notice (Ext. P-48) and that the plaintiffs should be given one-fifth share of the balance. The High Court directed that in the accounts, which the lower court had to take, the amount should be deducted from the amount that may be ascertained after taking accounts of the family income from the date of the notice (Ext. P-48) and that the plaintiffs should be given one-fifth share of the balance. We see nothing wrong in this direction as it is based on the finding that the amount must have been spent by the first defendant from the common fund. 11. The decree of the High Court is confirmed and this appeal is dismissed with costs of this Court payable by the appellants to the respondents. The order as to costs made by the High Court will however stand.