JUDGMENT N.U. Beg, J. - This is a Defendant's appeal arising out of a suit for possession by partition. In order to appreciate the facts in issue it will be helpful to give at the outset them pedigree of the parties. It is set out below: Mata Din_____________________|_______________________________ / / First Wife Second Wife / / / Gajadhar Prasad / Defendant No. 1_____________________________________________________ / / / / / Surajbali Jagannath Ajodhia Paras Ram Baijnath Plff. 6 / / / / / / / Ram Jiawan Plaintiff 1 Sheo Raman Plaintiff 2 Ram Sarup Plff. 3 Ram Suchit Plff. 4 Ram Prasad (Dead) Smt. Kailasha Defd. 5 Jaskaran Plff. 5. 2. The above pedigree would show that Mata Din had five sons from his first wife. After the death of the first wife, he married again and a son named Gajadhar Prasad was born to him through his second wife. Gajadhar Prasad was born about the year 1901. The birth of a son from the second wife appears to have given rise to dissensions in the family as a result of which the family was divided into two groups, one consisting of the five sons of Mata Din himself along with the minor son Gajadhar Prasad. These disputes led to a demand for partition by the sons of Mata Din from his first wife, who will hereafter be described as "Major sons". On the 24th August, 1903 an agreement was executed between the father and the sons. This deed is a combination of an agreement and an award. By it the parties agreed to effect a division of the joint family property. It was stipulated therein that the actual partition by metes and bounds would be brought about by Panches in the next fallow season that is in 1904. According to this partition deed the share of each member of the family would be one seventh. In the year 1922 Mata Din died and the revenue papers show that his one seventh share devolved on his minor son, Gajadhar. According to this partition deed the share of each member of the family would be one seventh. In the year 1922 Mata Din died and the revenue papers show that his one seventh share devolved on his minor son, Gajadhar. This situation continued for nearly a quarter of a century when the present suit was brought on the 24th January, 1946 by Ram Jiawan, Plaintiff No. 1 and Sheo Ram Plaintiff No. 2, the sons of Surajbali, Ram Sarup Plaintiff No. 3, Ram Suchit Plaintiff No. 4 the sons of Jagannath Jaskaran Plaintiff No. 5 son of Paras Ram and Baij Nath, Plaintiff No. 6, for partition of the family property specified in schedules A, and B, attached to the plaint. Schedule A consists of two houses numbered as 205 and 206 in ahata No. 240. Schedule B consists of certain under-proprietary and other plots with trees standing thereon. 3. The Plaintiffs brought this suit on the allegation that the agreement of the 24th August, 1903, which is Ex. A-1 in this case had resulted in the separation of all the seven members of the family. They accordingly claimed a four-sixths share in the property in dispute. Gajadhar Prasad was arrayed as Defendant No. 1 and Srimati Kailasha, widow of Ram Prasad was arrayed as Defendant No 2. The main contesting Defendant was Gajadhar Prasad. His defence was that inspite of the agreement, Ex. A-l he and his father Mata Din had continued to remain joint throughout. He accordingly claimed a two sevenths share in the properties mentioned in schedule B attached to the plaint. According to his defence, the Plaintiffs would been titled to only a four sevenths share in the property shown in schedule B and not a four sixths share as claimed by them. As to the property mentioned in Schedule A namely the houses Nos. 206, the Defendant No. 1 pleaded that the Plaintiffs had abandoned their shares in the said houses, and in any case, the Defendants had become absolute owners of the said share by adverse possession over it. 4. The Trial Court accepted the Defendant's suit only to the pleas and decreeded the Plaintiff's suit only to the extent of four-sevenths share in the property in Schedule B and dismissed it outright with regard to the entire property in Schedule A. 5. 4. The Trial Court accepted the Defendant's suit only to the pleas and decreeded the Plaintiff's suit only to the extent of four-sevenths share in the property in Schedule B and dismissed it outright with regard to the entire property in Schedule A. 5. The Plaintiff appealed against the said decision and the appellate Court reversed the finding of the trial Court hold that Mata Din had departed from his son Gajadhar. It further held that the Defendant had failed to prove his case of abandonment or adverse possession. It accordingly varied the decree of the trial Court by decreeing a four-sixths in favour of the Plaintiffs in the entire property in dispute. 6. Dissatisfied with the said judgment, Defendant No. 1 Gajadhar Prasad has filed this appeal and two questions that have arisen at this stage are: (1) Whether after the partition deed of the year 1903 Mata Din had remained joint with his son, Gajadhar Prasad and (2) whether the Defendant No. 1 has succeeded in proving his case of abandonment or adverse possession so far as the property in Schedule A, that is the houses, are concerned. 7. The first point has been dealt with by the lower appellate court as point No. 1 in its judgment. This point has been postulated for decision in its judgment in the following manner. 8. "1. If Mata Din was separate even from the Respondent No. 1". The manner in which the lower appellate court dealt with the main plea in the case does not appear to be legally correct. In fact the main question before the Court in this case was whether Mata Din had remained joint with Defendant No. 1 or not. The legal approach of the lower appellate Court, therefore, to this question does not appear to be correct. The lower appellate court then went on to consider the agreement of the 24th August, 1903. As a result of this agreement according to the lower appellate Court, a separation of all the members of the family of Mata Din came about. The legal position in a case like this is quite clear. There can be no manner of doubt that separation by one of the members of a joint Hindu family operates as a virtual separation of all the family members. The legal position in a case like this is quite clear. There can be no manner of doubt that separation by one of the members of a joint Hindu family operates as a virtual separation of all the family members. This proposition of law has been laid down in a number of decisions by Their Lordships of the Privy Council inspite of this severance of status, however, it is possible for any of the members of the family to remain joint or to effect a reunion with others. This aspect of the case was not considered by the lower court at all. The lower court adverted only to the agreement and observed that it brought about a severance of the joint status. It treated the virtual or national separation as complete and final. The lower court ignored the fact that inspite of this virtual separation it was open to any of the parties to remain joint. In fact this was the Defendants case and it appears to have been completely over-looked by the lower court. No doubt in such a case the burden of proving that certain members of the family continued to remain joint will be on the party setting up such a case. To substantiate this plea it is necessary that an agreement to that effect between the parties concerned has got to be established. This agreement, however need not be express. It can be implied and can be proved by actings and dealings of the parties that claim to have continued to remain joint. The law on this point has been clearly laid down in ruling of their Lordships of the Privy Council reported in Palani Ammal v. Muthuvenkaia Charla Moniagar L.R. 52 IndAp 83. At page 86 of the judgment Their Lordships have enunciated the law in the following words: But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lend to the inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. It is also now beyond doubt that a number of such a joint family can separate himself from the other member of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners without any special agreement among themselves, may continue to be coparceners and to enjoy as members of a joint family what remained of the property after such a partition of the family property. That the remaining members continued to be joint, may if disputed be inferred from the way in which their family business was carried on after their previous coparcener had separate from them. 9. Keeping the above propositions of law in mind, I have no hesitation in coming to the conclusion that the circumstance in "the present case clearly point to the conclusion that inspite of the partition agreement of the 24th August, 1903, Mata Din and Gajadhar Prasad had continued to remain joint. The circumstances existing at the time of partition throw a flood of light on this point. In this connection it would be relevant to recall that the five major sons were the sons of Mata Din from the first wife. This wife had died and Gajadhar Prasad was born about the year 1901 from the second wife. Previous to the birth of Gajadhar Prasad a female child was also born to Mata Din from the second wife. Her name was Rakhana. She was born about the year 1886. No demand for partition was made by the major sons then obviously because they felt that the birth of a daughter would not result in a diminution of their share in the property. The birth of a male child resulted in the disappearance of the calm that prevailed in the family atmosphere. It heralded the dawn of an era of disputes and dissensions between the parties. The major sons from the first wife felt that it would affect their claim to a larger share in the property and the birth of other sons from the second wife might result in further diminution of their shares. It heralded the dawn of an era of disputes and dissensions between the parties. The major sons from the first wife felt that it would affect their claim to a larger share in the property and the birth of other sons from the second wife might result in further diminution of their shares. They, therefore, appear to have felt apprehensive and dissensions were created in the family as a result of it. The partition deed Ex. A-l itself opens with a recital of the major fact that dissensions had taken place in the family. It appears to me that the circumstances clearly point to the conclusion that the family had broken into two groups as a result of this event. Another important fact which has to be borne in mind in this connection is that Gajadhar Prasad was only a baby in arms at that time. He would only be about two years old. It is inconceivable that the father would think of separating from him at that age. The agreement itself provides inherent evidence of the fact that the father and the minor son continued to be joint. The agreement as already mentioned opens with the recital of the fact that serious disputes had arisen between Mata Din and other members of the family. It is obvious that Gajadhar Prasad who was merely a baby in arms at the time could be no party to these disputes. At any there can be no question of any friction between him and there Mata Din. In fact it was his birth that was the cause of the disruption of the family and the father breaking his line with the issues of the first wife. There is every reason to think that under such circumstances the father would identify himself with the interests of this little child. The partition deed then goes on to state that the parties would bring about a division of the ornaments of the ladies and of other goods possessed by them including bedding, grain and clothing. There could be no question of possession of any ornaments by Gajadhar Prasad at the time or of any articles like clothing etc., that could be the subject matter of partition Para. 12. of this agreement is of special significance. There could be no question of possession of any ornaments by Gajadhar Prasad at the time or of any articles like clothing etc., that could be the subject matter of partition Para. 12. of this agreement is of special significance. It recites that whatever property would be acquired by Mata Din after the date of the said agreement would be owned and possessed by Gajadhar Prasad and other sons of the second wife, and the major sons from the first wife would have no concerned whatever with it. Para 13 again emphasises the same fact. These recitals to my mind clearly indicate that the father had remained joint with his minor son. There is also unimpeachable evidence to indicate that after the said division the father had continued to live in the same house along with his minor child whereas the other seceding members of the family left the house and commenced living in a separate house. This fact is also deposed to by Srimati Rakhana D.W. 5 the elder sister of the Defendant, Gajadhar Prasad and is not seriously disputed on behalf of the Plaintiffs. 10. A litigation that took place in the year 1905 provides further proof of the actings of Mata Din in this regard. In that year Mata Din had brought a suit in which he along with his minor son Gajadhar Prasad were arrayed as co-Plaintiffs. Mata Din acted as the next friend of Gajadhar Prasad in this suit. The suit which was jointly brought on behalf of the both was for the cancellation of the deed of agreement-cum ward mentioned above on the ground that the refractory attitude adopted by the major sons made it impossible for the panches to affectionate the award. All the five major sons were arrayed as Defendants in this suit. Exs. A-11 and A-12 are the written statements filed on behalf of the Defendants. Exs. A-3 and A-2 are the copies of the judgment and the decree respectively of that suit. The suit was dismissed on the ground that there was no cause of action for it. It, however, discloses that the father and the minor son where grouped together and constituted one block as against the major sons who constituted the other block. 11. Ex. The suit was dismissed on the ground that there was no cause of action for it. It, however, discloses that the father and the minor son where grouped together and constituted one block as against the major sons who constituted the other block. 11. Ex. A-17 is the statement of Baij Nath, Plaintiff No. 6 made on the 14th September, 1946 to the effect that a separation had been effected between the brothers 45 or 46 years before, that Gajadhar Prasad was his step brother and that he was on inimical terms with him. He further stated that Surajbali was the karta of his branch of the family. When confronted with this statement in court in this case, Baij Nath denied having made it and stated that in that case he had only mentioned about separation between the fathers and the uncle and not about the separation of brothers. The trial Court very rightly disbelieved his statement in this case and preferred to believe the statement made by him previously. 12. It also appears that after the death of Mata Din his one seventh share in the property devolved on the minor son, Gajadhar Prasad. The revenue records show that the entire two-sevenths which was the share of Mata Din and Gajadhar in the partition continued to be recorded in the name of Gajadhar after the death of Mata Din. Exs. A-15 and A-16 are the copies of khewats of the third settlement and Exs. A-13 and A-14 are the copies of the khewats of 1352. All of them tell the same tale. 13. On the 2nd January, 1917 Mata Din executed a will. This will is Ex. A-10. In it he stated that he had contracted two marriages and that from his first wife he had five children who after effecting partition of their shares had separated from him and were doing their business separately. He further stated on this will that from the second wife he had only one child named Gajadhar who had been living with him in the same house up to that time and was joint with him. The words used by him are "shamil sharik" which would indicate that they were members of a joint Hindu family. 14. He further stated on this will that from the second wife he had only one child named Gajadhar who had been living with him in the same house up to that time and was joint with him. The words used by him are "shamil sharik" which would indicate that they were members of a joint Hindu family. 14. It is also relevant to note in this connection that Mata Din died in the year 1922 and the present suit was brought by the Plaintiffs in the year 1946 very nearly a quarter of a century after his death. During all this period neither the Plaintiffs nor their ancestors challenged the entries in the revenue records showing that the entire share of Mata Din had devolved on Gajadhar Prasad. This laps of time is certainly a strong piece of evidence of the conduct of the Plaintiffs showing that they had themselves acquiesced in the claim of Gajadhar Prasad to the property of Mata Din by survivorship. Probably the reason for bringing the suit after the lapse of such a long period was that the evidence which would have thrown light on the truth and would have disclosed the real facts had disappeared, in the meantime. 15. Learned Counsel for the Respondents has argued that where there has been a severance of status of the various members of the family and one of the members of the family happens to be a minor, it is legally impossible for the minor member to remain joint with any of the other members of the family. His argument was that severance of the joint family status results in virtual separation in law of each of the family members. There can be a continuation of the state of jointness only if the parties choosing to remain joint are capable of expressing their will in the matter. As the minor was incapable of expressing his will, so he could never continue to remain joint. This argument if accepted would lead to startling results. Its effect would be that a minor would never be able to remain joint with any other member of this family when a severance of status is brought about. On the other hand it would be possible for the major members to continue to remain joint with any other member. Yet one would expect the law to be just the opposite. 16. On the other hand it would be possible for the major members to continue to remain joint with any other member. Yet one would expect the law to be just the opposite. 16. I am of the opinion that the question whether a minor remained joint with other members or not is a question that would depend upon the facts and circumstances of each particular case. There is no reason why in the present case it cannot be said that the minor being incapable of expressing his will, his father acting as his guardian on his behalf, in his interests and for his welfare continued to remain joint with him. On his attaining majority the minor never questioned the choice made by his father for him. On the other he stuck to the same position throughout. It was to his advantage and for his benefit. There seems to be no reason to deprive him of the fruits of jointness merely because he happened to be a minor at the time when the partition deed was executed. A number of rulings were cited by the learned Counsel for the Respondents in support of his contention but none of them lay down the proposition of law sought to be expounded by him on behalf of the Plaintiffs. 17. The learned Counsel for the Respondents has strongly relied on Ex. A-7. This is a judgment in a suit for recovery of possession of property of one Ram Sahai brought by Mata Din. In this suit he had impleaded Gajadhar. According to the plaint of Mata Din in this case he alone was entitled to succeed as the reversioner of Ram Sahai. Accordingly in this suit he impleaded his separated sons as well as Gajadhar Prasad. Gajadhar Prasad was merely a pro forma Defendant in this suit. He made no allegations nor claimed any relief against him. I do not think this case in any way militates against or disproves the case of their jointness which is established to the hit by the overwhelming evidence mentioned above. 18. Gajadhar Prasad was merely a pro forma Defendant in this suit. He made no allegations nor claimed any relief against him. I do not think this case in any way militates against or disproves the case of their jointness which is established to the hit by the overwhelming evidence mentioned above. 18. The entire evidence in the case, the dealings and the actings of Mata Din as well as of Gajadhar, the declarations and conduct of Mata Din himself, the entires in the revenue records and the circumstances and probabilities of the case all lead to the irresistible conclusion that Mata Din had remained joint with his son, Gajadhar. It is unfortunate that all this mass of evidence was entirely ignored by the lower appellate Court owing as I have mentioned, to its wrong legal approach to this question. The lower court has not dealt with this aspect of the question at all. I have no hesitation in agreeing with the well reasoned judgment of the trial Court on this point. 19. So far as the Defendants' case regarding ouster and abandonment is concerned I am however unable to agree with the arguments of the learned Counsel for the Appellants. He has not argued before me the plea of abandonment of relinquishment taken in the written statements of Gajadhar Prasad. He has, however, argued that the plea of ouster on behalf of Gajadhar Prasad has been established as he has been in long and exclusive possession of the houses to the knowledge of the Plaintiffs. It has to be remembered in this connection that the Plaintiffs are co-sharers in these houses. Unless, therefore, Gajadhar Prasad is able to establish that his possession was of such a nature as to amount to a denial of the title of the other co-sharers he cannot succeed. In this connection learned Counsel for the Respondents has drawn my attention to Ex. 3. This is a plaint of a suit filed in the year 1922. This suit was filed by Gajadhar Prasad along with Surajbali, Paras Ram and Baijnath the other co-sharers. In Para. 1 of the plaint Ex. 3, Gajadhar Prasad had clearly admitted that the Plaintiffs were the owners of the houses Nos. 205 and 206 situate in ahata No. 240. It, therefore, appears that Gajadhar far from denying the title of his co-sharers had been admitting the same. In Para. 1 of the plaint Ex. 3, Gajadhar Prasad had clearly admitted that the Plaintiffs were the owners of the houses Nos. 205 and 206 situate in ahata No. 240. It, therefore, appears that Gajadhar far from denying the title of his co-sharers had been admitting the same. Under these circumstances the mere possession of the property by one co-sharer is not enough to establish punishment of the other co-sharers or to make out the plea of adverse possession. In this view of the matter, the Defendants claim to the entire houses in dispute cannot be accepted. 20. The net result of the findings given by me above is that the Plaintiffs would be entitled to only a four-sevenths share in the entire property in dispute. This appeal is therefore allowed in part. A preliminary decree shall be prepared in accordance with the above directions. As both parties have partially succeeded and failed. I order that the Appellant and Respondents shall bear their own costs of the appeal. 21. Permission to appeal to a Division Bench was asked for and is granted.