JUDGMENT S.D. Khare, J. - This is an appeal directed against the judgment and decree passed by the learned Civil Judge, Etawah. The suit was for partition and that learned Civil Judge granted a preliminary decree for partition to the plaintiffs, directing that their share was one-forth in the property in suit. 2. The suit was originally instituted by Beni Prasad, who died during the pendency of the suit. His heirs have continued the suit after his death. The following pedigree, which is not disputed, will be of great help in understanding that facts of the case : 3. Beni Pd. Tribeni Pd. Gur Pd. Har Pd. Beni Prasad instituted the suit on the allegations that there had been a partition amongst the members of the family during the lifetime of Jwala Prasad and Smt. Ram Pyari in the year 1918. A partition suit was filed by the plaintiff and his minor brothers through him against their father and mother. A decree for partition was passed and the plaintiff's one-sixth share was separated from the rest of the family members by metes and bounds. The plaint case was that after the partition decree in suit no. 172 of 1918 filed by Beni Prasad and his minor brothers the status of each member of the family had become separate and each, that is to say, father, mother and their four sons had one-sixth share in the family property. Subsequently by means of mutual agreement the share of Smt. Ram Pyari was also separated and she became the owner of the specific property mentioned in Schedule A of the plaint. Out of the income of that property she acquired some more property which was mentioned in Schedule B of the plaint. The plaintiff's case was that Smt. Ram Pyari was the limited owner of these properties during her lifetime and on her death on 24-11-1943 Beni Prasad (deceased plaintiff) inherited one fourth share. It was further alleged in the plaint that the defendants were setting title to their property on the basis of a will executed by Smt. Ram Pyari and for that reason the plaintiff desired that his one fourth share in the property left by Smt. Ram Pyari be partitioned. 4. All the three brothers of Beni Prasad contested the suit. It was further alleged in the plaint that the defendants were setting title to their property on the basis of a will executed by Smt. Ram Pyari and for that reason the plaintiff desired that his one fourth share in the property left by Smt. Ram Pyari be partitioned. 4. All the three brothers of Beni Prasad contested the suit. They did not dispute the fact that their father Jwala Prasad owned certain ancestral property out of which Bene Prasad (deceased plaintiff) got one-sixth share by means of partition decree in suit no. 172 of 1918. Their case however was that after Beni Prasad had got his one-sixth share partitioned in the ancestral property, the father, the mother and their three minor sons (i.e. the defendants) continued to live joint and were, therefore, joint in status on the date of the death of Smt. Ram Pyari. They further pleaded that the tamliknama executed by Jwala Prasad in favour of Smt. Ram Pyari was a fictitious and fraudulent document and meant to defraud the creditors, as the family was heavily indebted on the date the tamliknama was executed. It was also pleaded that the property mentioned in Schedule B had not been. purchased out of the profits of the property mentioned in Schedule A but out of the funds belonging to the entire family after Beni Prasad (deceased plaintiff) had become separate from the rest of the family. It was also pleaded that after the death of Smt. Ram Pyari Tribeni Prasad, defendant no. 1, had invested about Rs, 3000/- in houses nos. 3 and 6 mentioned in Schedule A and defendant no. 2 had invested Rs. 1,200/- in houses nos. 1 and 5 mentioned in Schedule B; that they had done so in good faith; and that the plaintiffs could not get any decree unless (a) they brought their one sixth share in hatch potch and (b) they agreed to reimburse the defendants, who had invested money in the properties mentioned in Schedules A and B. 5. Several issues were framed as a result of the pleadings of the parties. Several issues were framed as a result of the pleadings of the parties. The learned Civil Judge, after considering the entire evidence led in the case, arrived at the conclusion that all the members of the family had become separate after the partition decree in suit no 172 of 1918, that the property mentioned in Schedule A of the plaint had been given by Jwala Prasad to Smt. Ram Pyari in lieu of her one-sixth share as she entered into possession of that property and acquired the property mentioned in Schedule B out of the profits of the property mentioned in Schedule A. No evidence was led by the defendants on several other pleas raised by them and the learned Civil Judge decided all those issues against the defendants. In the result, he decreed the plaintiff's suit for partition and held that the plaintiffs (heirs of Beni Prasad deceased) were entitled to one-fourth share. 6. Sahu Tribeni Prasad and Sahu Our Prasad, two sons of Jwala Prasad have filed this appeal. In the grounds of appeal they have reiterated all the pleas taken by them in their written statements. However, at the time of arguments, only one point was pressed that the learned Civil Judge had misconstrued the documents and the effect of the evidence and that upon the evidence led before him, he ought to have arrived at the conclusion that after the decree in suit no. 172 of 1918 had been passed only Beni Prasad had become separated in status and other members of the family had either continued to remain joint or had become reunited. 7. A Tamliknarna (Ex. 12) had been executed by Jwala Prasad in favour of Smt. Ram Pyari on 30-5-1930. The document also bears the signatures of all the sons of Jwvala Prasad in token of their having agreed to what was written in the deed. The properties mentioned in Schedule B were, according to the evidence led in this case, purchased in the name of Smt. Ram Pyari much after the date of Tamliknama. No evidence was led. by the defendants to show that the properties mentioned in Schedule B had been purchased henarni in favour of Smt. Ram Pyari out of the joint family funds. Therefore, the appeal can succeed only if the appellants can show that after the partition decree in suit no. No evidence was led. by the defendants to show that the properties mentioned in Schedule B had been purchased henarni in favour of Smt. Ram Pyari out of the joint family funds. Therefore, the appeal can succeed only if the appellants can show that after the partition decree in suit no. 172 of 1918 Jwala Prasad, his wife and three sons had continued to live joint or had reunited. The appellants contention is that inasmuch as only the one-sixth share of Beni Prasad was separated by metes and bounds in pursuance of the decree passed in original suit no. 172 of 1918, the other members of the family, that is to say, the father, the mother and their three minor children continued to live joint and thus retained their joint status. Other findings of fact recorded by the trial court have not been challenged and we confine(?) them. 8. The law on the point in issue is very clear and has been briefly summarised by D. F. Mulla in his book Hindu Law, 11th Edition at page 434 as follows : "The general principle is that every Hindu family is presumed to be joint unless the contrary is proved. This presumption, however, does not continue after one member has separated from the others. As observed by the Judicial Committee, "There is no presumption when one coparcener separates from the others, that the latter remain united.... An agreement amongst the remaining members of a joint family to remain united or to reunite must be proved like other facts. It is open to the non-separating members to remain joint and to enjoy as members of joint family what remained of the joint family property after such a partition. No express agreement is necessary for this purpose. The intention to remain joint may be inferred from the way in which their family business was carried on after their former coparcener had separated from them or it may be inferred from other conduct indicating, such an intention." 9. It was held in the case of Ram Prasad Singh v. Lakhati Kuer, 30 I. A. page 1 that in such cases the conduct of the par. ties must be looked into in order to determine what constitutes the true test of partition of property according to Hindu Law, namely, the intention of the members of the family to become separate owners. 10. ties must be looked into in order to determine what constitutes the true test of partition of property according to Hindu Law, namely, the intention of the members of the family to become separate owners. 10. In the case of Balabux v. Rukhmatai, 30 I. A. page 130 it was observed by their Lordships, "There is no presumption, when one coparcener separates from the others that the latter remain united. In many cases it may be necessary, in order to ascertain the share of outgoing member, to fix the shares which other coparcener's are or would be entitled to, and in this sense the separation of one is said to be virtual separation of all. Their Lordships think that an agreement amongst the remaining members of joint family to remain united or to reunite must be proved like any other fact." 11. The same view with which we respectfully agree was reiterated in the cases of Palani Ammal v. Mathu Venkatacharya, 52 I.A. page 83 and Bal Krishna v. Ram, Krishna, 53 All. page 300. 12. In view of what has been stated above, the learned Civil Judge was perfectly justified in arriving at the conclusion that if a coparcener separates from the joint family, the presumption of jointness does not continue and the persons alleging that the remaining members continued to remain joint or reunited must prove it. He could do so either by proving an express agreement between the remaining coparcener's to continue joint or by their conduct. 13. Suit No. 172 of 1918 was a suit for partition brought by Beni Prasad and his minor brothers through their next friend Beni Prasad against Jwala Prasad, the father and Smt. Ram Pyari, the mother. The suit was contested and Smt. Ram Pyari, in para. 8 of her written statement (copy Ex. 20), prayed that she may also be allotted a share in the family property. It was also contended that to hand over to the plaintiffs the shares of Tribeni Prasad, Cur Prasad and Har Prasad was not in their interest. The learned Civil Judge in his judgment delivered in that suit observed, "I therefore think that the share of plaintiffs 2, 3 and 4 should not be partitioned and should be allowed to remain as it is. The learned Civil Judge in his judgment delivered in that suit observed, "I therefore think that the share of plaintiffs 2, 3 and 4 should not be partitioned and should be allowed to remain as it is. If it be held however that it should also be partitioned, then out of the parties to this case, defendant 2 is the best person to whom it should be entrusted after partition if she too be not considered a fit person for this purpose, then that share may be made over to the supervision of the court of wards." It is obvious that by the words "partitioned" the learned Civil Judge meant "partitioned by metes and bounds." 14. Certain other facts are also not disputed. At the time of the institution of suit no. 172 of 1918 Tribeni Prasad, Cur Prasad and Har Prasad were minors. One-sixth share of Beni Prasad alone was separated by metes and bounds. The question remains whether, after the passing of the final decree in that partition suit, Jwala Prasad, his wife and the remaining three sons continued to be joint in status. Their shares might not have been separated by metes and bounds but that fact alone could not go to show that they had not become separate in status. A party alleging that they continued to remain joint in status had to prove that fact like any other fact. In case Jwala Prasad and his remaining three sons did not continue to remain joint in status, the fact that their shares were not separated by metes and bounds will have no effect. To continue as joint tenants of the property is one thing and to continue as members of a joint Hindu family and to own the entire property as coparcenary property is altogether a different thing. 15. The conduct of the parties, that is to say, Jwala Prasad, his wife and the remaining three sons after the passing of the final decree in suit no. 172 of 1918 is, therefore, material and shall have to be examined in detail. 16. Beni Prasad had stated under Order X, rule 2, Civil Procedure Code that he separated through court in the year 1920 and after 5 or 6 months of his separation, all his brothers also became separate and his father and mother also lived separately. 172 of 1918 is, therefore, material and shall have to be examined in detail. 16. Beni Prasad had stated under Order X, rule 2, Civil Procedure Code that he separated through court in the year 1920 and after 5 or 6 months of his separation, all his brothers also became separate and his father and mother also lived separately. The case taken up by Tribeni Prasad was that he, his father, his mother and his brother Gur Prasad always remained joint though Har Prasad had separated himself from the other members of the family in the year 1930 or 1931. 17. At the time of the institution of the suit out of which this appeal arises, all the brothers were admittedly living separate from each other and were separate in status (vide the statement of Har Prasad D. W. 2). There is no reliable proof on record to show that they had separated in the year 1920. The defendants too did not lead any reliable evidence to prove as to when the remaining three sons of Jwala Prasad had separated from each other. 18. The plaintiff examined five witnesses namely Deo Datt (P. W. 1), Uma Charan (P. W. 2), Ram Bharose (P. W. 3), Badri Prasad (P. W. 4) and Budh Sen (P. W. 5). Deo Dutt (P. W. 1) stated that he was the Pandit of Smt. Ram Pyari, Jwala Prasad and his sons. Deo Dutt further stated that Jwala Prasad, his wife Smt. Ram Pyari and his three sons continued to live joint and had joint income till the year 1930 after which they started dividing their income. He further stated that Jwala Prasad had transferred one-fourth share of his property in the name of his daughter Smt. Ramdei. Smt. Ram Pyari thereupon told Deo dutt to get her one-sixth share separated. She thought that Jwala Prasad might ruin the entire property. Deo Dutt talked to Jwala Prasad about the matter and the latter agreed to separate her share with the result that a Tamliknama was executed by Jwala Prasadin favour of Smt. Ram Pyari on 30-5-1930. Uma Charan (P. W. 2) was examined to prove that Smt. Ram Pyari had purchased the house of Pooran Mal out of her savings. Deo Dutt talked to Jwala Prasad about the matter and the latter agreed to separate her share with the result that a Tamliknama was executed by Jwala Prasadin favour of Smt. Ram Pyari on 30-5-1930. Uma Charan (P. W. 2) was examined to prove that Smt. Ram Pyari had purchased the house of Pooran Mal out of her savings. During the course of cross-examination this witness was also asked about the separation in the family and he stated that they had separated 20 to 22 years ago. The witness was giving his statement on 22-9-1952 and according to the statement made by Uma Charan, Jwala Prasad and his sons had been living separate from the year 1930 or 1932. Ram Bharosey (P. W. 3) stated that at the time of the death of Smt. Ram Pyari, all her sons were living separate from each other. Badri Prasad (P. W. 4) deposed that Jwala Prasad and other members of his family were living separately. When cross-examined he stated that Jwala Prasad used to live in a temple while Smt. Ram Pyari used to live in the lower portion of the Haveli, the upper portion of which was occupied by defendant no. 1. As regards defendants nos. 2 and 3, he stated that they used to live separately in the adjacent houses. The witness also stated that movable property was divided amongst the members of the family about 30 or 32 years ago. The last witness examined by the plaintiff was a Qanungo at Etawih. He proved the tamliknama (Ex. 12) executed by Jwala Prasad in favour of his wife Smt. Ram Pyari, 19. From what has been stated above, it is clear that although the plaintiff's case on the date of the issues was that the three brothers of Beni Prasad had separated from each other in or about the year 1920, evidence was led to show that they had remained joint till about the year 1930 when they separated. 20. The defendants examined five witnesses in support of their case. The first witness was Tribeni Prasad (D, W. 1). He stated that after the partition suit of 1918 Jwala Prasad, Smt. Ram Pyari and their remaining three sons continued to live joint. He also stated that the tamliknama (Ex. 12) had been executed out of the fear of creditor Vishambhar Nath and was a fictitious document. The first witness was Tribeni Prasad (D, W. 1). He stated that after the partition suit of 1918 Jwala Prasad, Smt. Ram Pyari and their remaining three sons continued to live joint. He also stated that the tamliknama (Ex. 12) had been executed out of the fear of creditor Vishambhar Nath and was a fictitious document. Har Prasad (D. W 2) deposed in examination-in-chief that the three sons of Jwala Prasad continued to live joint with their parents and had never separated. However, during the course of cross-examination he had to admit that all the defendants were living separately for the last three or four years. Brahma Nand (D. W. 3) and Kunwar Bahadur (D, W. 4) deposed that Jwala Prasad and his remaining sons had continued to live joint. When cross-examined, both witnesses could not state whether or not each of the three defendants had been realising the income of his property separately. Kunwar Bahadur (D. W. 4) stated that he had never entered the house of Jwala Prasad and his sons. He was, therefore, not in a position to say whether they lived jointly or separately. The defendants' evidence on this point cannot, therefore, be regarded to be satisfactory. 21. The result of the above discussion is that it is not at all clear from the oral evidence when the three defendants had separated from each other. The defendants claimed to be joint in status with others at the time of their mother's death. It was for them to establish that fact. However, there is no reliable evidence on that point. On the other hand, the documentary evidence filed in the case negatives that contention. 22. On 30th of May, 1930 a document was executed by Jwala Prasad in favour of his wife, Smt. Ram Pyari recognising her to be the owner of the property mentioned in Schedule A in lieu of her one-sixth share in the family property. On the other hand, the documentary evidence filed in the case negatives that contention. 22. On 30th of May, 1930 a document was executed by Jwala Prasad in favour of his wife, Smt. Ram Pyari recognising her to be the owner of the property mentioned in Schedule A in lieu of her one-sixth share in the family property. The relevant portion of the document reads as follows : "The said case was decided on 23rd December, 1920 from the said court to this effect that in accordance with the objection of me the executant, the entire movable and immovable property was partitioned in six shares i.e. six lots were made out of them, one share was given to Beni Prasad aforesaid, and the remaining five shares were in this way that one share was of me the executant, one share was of my wife Smt. Ram Pyari and my remaining three sons Tribeni Prasad, Gur Prasad and Har Prasad were given one share each. In this way five shares have been held jointly even up to this time. In view of changes of the time, now I the executant have heart felt Mst. Ram Pyari aforesaid, I should make a tamlik in her favour (put her in possession of her share) and that I should also make a tamlik in respect of what else I have to give to her so that in future after my death, and during my life time. She (my wife aforesaid) should not be put to trouble of any kind and that she should continue to be benefited from the property given in this tamliknama maintain herself fully according to her own wishes and she should not feel trouble for her fooding etc. and that she should not have to depend upon any of her sons. All the three sons of me the executant, are agreed to it and they have been made to sign on the margin of this document as witnesses, for this very purpose so that in future they should not have any chance of taking objection etc. of any sort." 23. The document bears the signatures of all the three defendants, who according to the recitals of the deed, had affixed their signatures after having carefully read the contents of the document. The defendants nos. I and 2 (Tribeni Prasad and Gur Prasad) admitted their signatures on the document (Ex. of any sort." 23. The document bears the signatures of all the three defendants, who according to the recitals of the deed, had affixed their signatures after having carefully read the contents of the document. The defendants nos. I and 2 (Tribeni Prasad and Gur Prasad) admitted their signatures on the document (Ex. 12) and also stated that they had consented to its contents. Tribeni Prasad stated that defendant no. 3 (Har Prasad) had also consented to the execution of the deed. Har Prasad However did not admit to have put his signatures on the document. The signatures of Har Prasad on the document are duly proved by the statement of Kripa Shanker, the scribe of the deed and Budh Sell the attesting witness of the deed. Tribeni Prasad stated that defendant No. 3 was aware of the contents of the document (Ex. 12) which had been read out to him and he had attested it in lieu of his consent. Since Har Prasad had denied his signatures on the document, the plaintiff examined Sri Russell Afzal Gregory in support of his case that the signatures on Ex. 12 are those of Har Prasad. The defendants examined another witness Sri A. S. Kapoor to state that the admitted signatures of Har Prasad did not tally with those on Ex. 12. The learned trial court has placed no reliance on the statement of Sri A. S. Kapoor in view of the fact that Sri Russell Afzal Gregory has given good reason for arriving at the conclusion that the signatures on Ex. 12 purporting to be that of Har Prasad were of Har Prasad defendant and that the statement is in conformity with other reliable evidence led in the case. We see no reason to differ from the trial court on that point. There can be no doubt that the document Ex. 12 had been executed by Jwala Prasad with the consent of all his sons, who had signed it as attesting witnesses in token of their having consented to its execution. 24. The recitals made in the deed (Ex. 12) clearly show that after the partition decree in suit no. 172 of 1918 each party to the decree regarded his share to be one-sixth. Except Beni Prasad all others seem to have continued to live jointly at least till the near 1930. 24. The recitals made in the deed (Ex. 12) clearly show that after the partition decree in suit no. 172 of 1918 each party to the decree regarded his share to be one-sixth. Except Beni Prasad all others seem to have continued to live jointly at least till the near 1930. However, that was immaterial because, as will appear from their subsequent conduct, the intention of the parties was to live together only as tenants in common. They not fully understood that their joint status had come to an end after the partition decree of 1918 and they made no effort to reunite. On the other hand, in the year 1930 a share was given to Smt. Ram Pyari the mother in pursuance of the partition decree which had been obtained as a result of the suit instituted by Beni Prasad in the year 1918. 25. It has come in evidence that the family of Jwala Prasad was heavily indebted in the year 1930 and, therefore it is contended that the document (Ex. 12) must be fictitious and executed in order to defraud the creditors. Jwala Prasad had executed a mortgage deed in favour of Ch. Raghunath Das on 18th of June, 1918. A preliminary decree was obtained on its basis on 1st September 1926 and a final decree was passed on 30th of July, 1927 for Rs. 65,436/-. The mortgage decree could not be satisfied out of the sale of the mortgaged property and, therefore, the mortgagee obtained on 6th August, 1930 a decree under Order XXXIV, rule 6, Civil Procedure Code for Rs. 25,362/2/3 only. The document (Ex. 12) was executed by Jwala Prasad in favour of his wife a few months before a decree under Order XXXIV, rule 6, C. P C. had been passed. However, this circumstance will not go to show that the document (Ex. 12) was a fictitious or fraudulent and the recitals made therein were incorrect. In our opinion, no reliable evidence has been led by the defendants to show that the recitals made in the document (Ex. 12) were incorrect. There had been a disruption in the joint status of the family as a result of the partition decree passed in suit no 172 of 1918. It is abundantly clear that at the tine of that partition Smt. Ram Pyari was also entitled to one-sixth share in the roily property. 12) were incorrect. There had been a disruption in the joint status of the family as a result of the partition decree passed in suit no 172 of 1918. It is abundantly clear that at the tine of that partition Smt. Ram Pyari was also entitled to one-sixth share in the roily property. She had asked for share at the time she had filed a written statement but she did not care to press that prayer. The property which she got in the year 1930 roughly corresponded to her one sixth share in the family property. It is, therefore, clear that what she got in the year 1930 was in pursuance of the partition that had taken place in the year 1918. A mere perusal of the document (Ex. 12) will show that the joint status of the family had come to an end and the parties had interpreted the partition decree of 1918 to mean that they had become separate in status, and had defined shares (one sixth for each) in the joint family property. 26. Schedule A of the suit property had been given to Smt. Ram Pyari (the mother) keeping in view the partition which had taken place in the year 1918. The property in Schedule B was admittedly acquired after 1930 in the name of Smt. Ram Pyari. There is nothing on the record to show that any person other than Smt. Ram Pyari had paid for the properties which must be regarded to be acquisitions from the income of the property mentioned in Schedule A. After the death of Smt. Ram Pyari in the year 1943 all her four sons were entitled to inherit her in equal shares. The plaintiff's suit for one-fourth share was, therefore, rightly decreed. 27. No other point was prepared before us at the time of argument by the learned counsel Sri Virendra Dixit who put his case before us in a very clear,,concise and lucid manner. 28. The appeal is dismissed with costs to he plaintiffs-respondents.