JUDGMENT Banerjee, J. : This appeal at the instance of the defendant-appellant arose out of a suit by the plaintiff for partition. The plaintiff and the defendant No.1, since deceased, were two brothers and the defendant no. 1 was the elder brother of the plaintiff. It is alleged that they used to carry on business in dry fruits jointly and used to mess together and formed a joint family and had a joint common fund, Ejmali, which used to be kept with the defendant no. 1, being the eldest of the brothers. On 16th December, 1927 with the above joint fund, the property at 25, Ekbalpore Lane, was purchased by both the two brothers in the name of the rider brother, the defendant no. 1, as the plaintiff had ample confidence and faith in him. It is stated that thereafter on the joint effort and with the income of the Ejmali business, construction was effected on the said premises and it became thus the joint property of the two brothers, the plaintiff and the defendant no. 1 and this property mentioned in schedule "A" forms one of the subjects of the present suit and was liable to be partitioned. It is further staled that the plaintiff feeling inconvenience in the joint mess and joint dwelling accommodation in the above premises removed to a separate house and had been getting a share of the income from the defendant no. 1, out of the income of the property in schedule "A" but the major portion of the income of the suit property by common consent was kept with defendant no. 1 for acquisition of other properties and with the said income, the properties mentioned in schedule "B" were subsequently acquired gradually from the said accumulation but in the name of the defendant no. 1. The defendant no. 1, since deceased, stopped paying any money out of the income of the suit properties and being pressed for that expressed that he had been forced to make some Benami documents in favour of his wife and daughter and that they were claiming the properties on the basis thereof, for Which he was not in a position to give the plaintiff his due share of the usufructs. The plaintiff was very much surprised at the above statement of the elder brother and made searches from the registry office and other quarters and came to learn that out of fraudulent motive, he had created certain deeds in favour of his wife and daughter and daughter's son and daughter regarding the suit properties. It is alleged that the aforesaid deeds are all Benami fraudulent and collusive and sham and paper transactions and without consideration and the right, title and interest that the plaintiff has got in all those properties are not at all affected and those are by no means binding upon the plaintiff. It is alleged that the plaintiff has got an indefeasible right in the suit properties to the extent of 8 annas share and he is entitled to get a decree for partition by metes and bounds even if the Court finds that the transactions are valid. During the pendency of the suit the defendant no. 1 Ahamed Shah Khan died. It is alleged that the plaintiff, being his brother, is entitled to 3/16th share of the property by way of inheritance, the defendant no. 2 has got 1/4th share and defendant no. 5 has got 1/16th share in the suit properties. The plaintiff thus has 11/16th share in the same. It further appears that the plaintiff Ahmed Shah Khan has executed and registered a Kobala purporting to transfer the property in favour of his wife, Hossaini Bibi. It is alleged that the said document is collusive and sham paper transaction. Further the said property having been acquired out of the income of Ejmali property, the plaintiff has got 8 annas interest therein and thus the deceased defendant Ahamed Shah Khan had no capacity to transfer more than 1/2 share of the property and as such the Kobala is valid to that extent, the defendant cannot claim even more than 1/2 share therein. The Kobala relating to 16B Ebrahim Road was however invalid and Ahmed Shah Khan having died leaving the plaintiff as one of his heirs and in the suit property the plaintiff has 11/16th share. It is alleged that the cause of action arose on and from 15th June, 1958 when the defendant no. 1 refused to pay any income of the properties or to effect partition. It is alleged that the cause of action arose on and from 15th June, 1958 when the defendant no. 1 refused to pay any income of the properties or to effect partition. From these pleadings, the plaintiff prayed for a decree for partition in the preliminary form against the defendant regarding 11/16th share in the suit property and for a declaration that the deeds and transactions mentioned in schedule "C" are not at all binding upon the plaintiff and are all Benami, fraudulent, sham paper transactions and that a final decree be passed in favour of the plaintiff and in terms of the final report and that such other relief or reliefs be granted to which the plaintiff is entitled under law and equity. The suit was filed on 19th September, 1959 and the defendant no. 1 died on 1st of May, 1960. 2. The defendant Nos. 2 and 4 filed written statements on 21st March, 1960. In the written statement filed by the defendant no. 2 Sahajadi Begum it was stated as follows :– It is stated that the suit is barred by limitation and is liable to be dismissed for partition. The defendant denied that the defendant no. 1 and the plaintiff used to carryon business in dry fruits jointly at Hogg Market and they used to mess together and they formed a joint family or that they had joint common fund Ejmali, which was used to be kept with defendant no. 1. The plaintiff and the defendant no. 1 did never carry on business in dry fruits jointly or singly at stall No. 77 of Hogg Market in the name of Hazi Ali Bux Fazle Elahi during the years 1912-1942 or at any time. The alleged business in the name of Hazi Ali Bux Fazle Elahi at stall No.77, Hogg Market, did not belong either to plaintiff or defendant no. 1. The allegations of joint common fund Ejmali and keeping of such fund with defendant no. 1 are absolutely false and have been made with the object of instituting this false suit. It was denied that the property at 25, Ekbalpore Lane was purchased by the two brothers in the name of the elder brother with the alleged joint fund. It is alleged that 25, Ekbalpore Lane was purchased by Sahara Khatoon Bibi, the deceased first wife of the defendant no. It was denied that the property at 25, Ekbalpore Lane was purchased by the two brothers in the name of the elder brother with the alleged joint fund. It is alleged that 25, Ekbalpore Lane was purchased by Sahara Khatoon Bibi, the deceased first wife of the defendant no. 1 by registered deed of sale in the Benami of her husband who lent his name in the said sale deed, and the said Shahara Khatoon Bibi after her purchase of the said property built upon same and she had ever since been in exclusive possession and enjoyment thereof and dealt with it as her own to the knowledge of the plaintiff and all. Ahmed Shah Khan the defendant no. 1 by the deed of release dated 6th August, 1929 executed in favour of his said wife Sahara Khatoon Bibi declared that he never had any right title or interest in the said property and that Sahara khatoon Bibi as absolute owner had been in exclusive enjoyment and possession thereof. The defendant no. 1 in subsequent other deeds made declaration to the same effect. The plaintiff and/or the defendant no. 1 had no right, title or interest in the said property. The defendant no. 1 further stated that Sahara Khatoon Bibi died on or about 22nd February, 1949 and left a Will wherein the defendant no. 1 has been named as testatrix and by which she bequeathed, among other things, her said property, being 25, Ekbalpore Lane. The said will was in the custody of the defendant no. 1. The defendant is the only daughter of the testatrix and sole legatee under the said Will subject to some other legacies. Long after the death of the testatrix the defendant no. 1 made over the said will to this defendant, who in Letters Administration case No.8 of 1958 of the Court of local District Delegale obtained necessary grant with copy of the said wilt on 2nd June, 1958. On proper citation being issued, the defendant no. 1 appeared in the said case but did not contest the same. The estate of her mother, the said testatrix, is now vested in this defendant as administratix and as such he is in exclusive possession of the said property at 25, Ekbalpore Lane, and in course of administration and in terms of agreement dated 21st June, 1958 entered into between her and defendant no. The estate of her mother, the said testatrix, is now vested in this defendant as administratix and as such he is in exclusive possession of the said property at 25, Ekbalpore Lane, and in course of administration and in terms of agreement dated 21st June, 1958 entered into between her and defendant no. 1 in conformity with the direction in the said Will, this defendant has been paying to the defendant no. 1 the monthly amount on account of his maintenance. It is denied by the defendant that there was a joint effort and with the income of the joint Ejmali business construction was effected on the said premises and that it became the joint property of the two brothers. The defendant denied that the plaintiff and the defendant no. 1 never lived in joint mess. The plaintiff had been for sometime living separately in a portion of the house at 25, Ekbalpore Lane as licensee under the said Sahara Khatoon Bibi to whom the said property absolutely belonged. The plaintiff removed to a rented house at 19E, Mominpore Road in 1940. The defendant further denied that the plaintiff never received any share of the income of schedule "A" property nor the defendant no. 1 could give to the plaintiff any share of income of the said property. The defendant stated that the income of the schedule "A" property could never be kept with common consent with the defendant no. 1 as the said property did never belong to the plaintiff or defendant no. 1 and as such the property is not liable to be partitioned. The defendant stated that on 22nd August, 1944 the defendant no. 1 in this own interest and with his own money purchased in auction sale, surplus Corporation land on Ibrahim Road in three contiguous lots of which the northern one was lot No. 16 containing the area of 3 cottahs 5 chittacks and 40 sq. ft. and subsequently being premises No. 16/1, Ibrahim Road, the middle one was lot No. 17 containing the area of 3 cottahs and odd subsequently being premises No. 17, Ibrahim Road and the southern one was lot No. 18 containing the area of 4 cottahs and odd subsequently being premises No. 18/1, Ibrahim Road. All these plots were amalgamted into one premises renumbered as 16, Ibrahim Road. The defendant no. All these plots were amalgamted into one premises renumbered as 16, Ibrahim Road. The defendant no. 1 constructed structure thereon in his own interest and with his own money and had been in exclusive possession and enjoyment of the same. The schedule 'B" property exclusively belonged to defendant no. 1 and the plaintiff never had 8 annas share or any share therein. It is further stated that the defendant no. 1 divided the said 16, Ibrahim Road premises into three separate portions now renumbered as 16A, 16B and 16C. The defendant no. 1 by two registered deeds of lease granted permanent lease of the said northern and southern portions now numbered as premises Nos. 16A and 16C, Ibrahim Road to defendants nos. 3 and 4 respectively and by deed of sale sold the middle portion now mumbered as 16B, Ibrahim Road to his third wife Hussain Bibi. The said premises No. 16B, Ibrahim Road has been left out of this suit and the said Hussain Bibi has not been made a party. The defendant denied the allegation that the plaintiff has still in his possession a drawing room in the ground floor of the said premises No. 25, Ekbalpore Lane, wherein he has got his furniture and very often goes there. The defendant further denied that the defendant no. 1 recently stopped paying any money out of the income of the suit properties and that on being pressed, he expressed that he had been forced to make some Benami documents in favour of his wife and daughter who are claiming the properties on the basis thereof and that he is not in a position to give the plaintiff his due share of the usufruct. The defendant further stated that the plaintiff being a very designing person in collusion with the defendant no. 1's third young wife Hussain Bibi removed the defendant no. 1 to his house at 8A, Ekbalpore Lane and thereafter he is living at the said house. The defendant no. 1 is now completely under the evil influence of his third wife and the plaintiff and both of whom are acting in collusion with each other and with the evil motive of depriving this defendant and her son and daughters, the defendants nos. 3 and 4 of their properties, the present false and fraudulent suit has been instituted. It is further stated that the defendant no. 3 and 4 of their properties, the present false and fraudulent suit has been instituted. It is further stated that the defendant no. 2 was granted Letters of Administration in respect of the Will and unless the said Will is revoked the suit is not maintainable. It is further stated that the plea or partition as made out in the plaint is based in the history of false allegation and fraudulent case and the suit for partition is liable to be dismissed. 3. The defendants Nos. 3 and 4, the minor sons of Sahazadi Begum defendant no. 2, also filed written statements stating, inter alia, that there was no joint business in dry fruits, never messed together and never formed joint family. The property at premises no. 25, Ekbalpore Lane was never purchased from the joint fund. The premises No. 16, Ibrahim Road was purchased by defendant no. 1 with his own money in auction sale held by the Corporation of Calcutta on 22nd August 1944. The said three plots were renumbered as 16A, 16B and 16C, Ibrahim Road and the same were divided into three portions by defendant No.1 and each portions were separately numbered as 16A, 16B and 16C, Ibrahim Road. The defendant no. 1 in order to make provision of his grand-sons and grand-daughters made a lease of premises No. 16A, 16B and 16C, Ibrahim Road. 4. The defendant no. 5 also filed the written statement and stated therein that she does not admit that the plaintiff and Ahmed Shah Khan jointly carried on any business in dry fruits as alleged at stall No. 77 Hogg Market or at any other place at any material time. She denied the allegation that 25, Ekbalpore Lane was purchased by the plaintiff jointly with Ahmed Shah Khan in the name of the latter. It is further stated that the plaintiff and Ahmed Shah never had a joint common fund and the suit premises is not joint property as alleged by the plaintiff. It is stated that 16, Ibrahim Road was purchased by Ahmed Shah Khan alone with his own money and constructed structure thereon. The said property was divided into three parts and they were re-numbered as 16A, 16B and 16C, Ibrahim Road. It is stated that 16, Ibrahim Road was purchased by Ahmed Shah Khan alone with his own money and constructed structure thereon. The said property was divided into three parts and they were re-numbered as 16A, 16B and 16C, Ibrahim Road. By two deeds of leases executed by him he granted permanent lease to his grand-son and grand-daughter and again by a deed of sale dated 25th March, 1955 sold and transferred for valuable consideration to this defendant the middle portion i.e. premises No. 16B, Ibrahim Road. The right, title and interest of Ahmed Shah in premises No. 16B, Ibrahim Road was transferred to the defendant no 5. The allegations of fraud and collusion was denied by the said defendant. It is further stated that the defendant no. 1 Ahmed Shah Khan was absolute owner of the property in schedules 'A' and 'B' and the right, title and interest of the said defendant was transferred in favour of the other defendants. On the said pleadings the defendant no. 5 prayed for a dismissal of the suit. It appears that the plaintiff got an exparte degree against the defendant for non-appearance of the defendant. The said exparte decree was set aside on an application being made by the defendant and the suit was heard on merits. After the evidence was adduced by the party the learned Sub-ordinate Judge of the 5th Court, Alipore, decreed the suit. While making the decree in Title Suit No. 81 of 1959, declared that the plaintiff's title in respect of the suit premises to the extent of 9/16th share in 'A' schedule property and half share in the 'B' schedule property subject to this that the plaintiff should add to the list of the joint properties in the plaint premises 8A, Ekbalpore Lane in which the plaintiff has 9/16th share by amendment of the plaint within 15 days from the date and the suit being Title Suit No. 91 of 1959 filed by Ahmed Shah Khan and continued by Raja Khan challenging the transfer to Hussian Bibi stood dismissed. There was no application against this decree. While decreeing the suit the learned Judge below held, inter alia, that Ahmed Shah Khan is the brother of Raja Khan and they lived in a joint mess. There was no application against this decree. While decreeing the suit the learned Judge below held, inter alia, that Ahmed Shah Khan is the brother of Raja Khan and they lived in a joint mess. It was further held that the fruit business was also run jointly and the fruit business was run from 1917 and continued upto 1939. It was held that the acquisition of the property, that is, 25, Ekbalpore Lane, was made from the joint fund and for the benefit of the joint family the acquisition of 16, Ibrahim Road was also made from the usufruct of 25, Ekbalpore Lane which was acquired by the brothers jointly and therefore the brothers had joint mess. The case of the defendant that Sahara Khatoon purchased the property with her own money was dismissed. 5. Mr. Mitter on behalf of the appellant contended that under the Mahomadan Law, the idea of Hindu joint family cannot at all be imported. The learned Subordinate Judge was wrong according to Mr. Mitter when the presumption or Hindu joint family was imported in a matter of Muslim brothers. According to Mr. Mitter the mere existence of joint fund, if at all, in the hands of a Muslim and purchased by several members with a joint fund will not make the joint property purchased from the joint fund into a joint family property in the matter of Muslim brothers. It is argued by Mr. Mitter that if two Muslim brothers jointly carries on business that will not be a joint family business in accordance with the concept of joint family business of Hindu law but will be a contractual business between the brothers and thirdly it is argued by Mr. Mitter that there cannot be any partnership in regard to the business of smuggling. The plaintiff cannot maintain the suit for usufruct of illegal partnership. It is argued by Mr. Mitter, but not admitted, that even if all the findings of the Court below are correct, still the plaintiff is not entitled to the decree and the suit ought to have been dismissed in limine. Mr. Mitter argued that the parties did not carryon any business jointly and moreover it is argued by Mr. It is argued by Mr. Mitter, but not admitted, that even if all the findings of the Court below are correct, still the plaintiff is not entitled to the decree and the suit ought to have been dismissed in limine. Mr. Mitter argued that the parties did not carryon any business jointly and moreover it is argued by Mr. Mitter that the evidence given by the plaintiff's witnesses cannot be believed, inasmuch as, they are not competent witnesses and they could not say anything regarding the joint family fund, if at all, and how it has been kept or utilised, Mr. Mitter also argued, even assuming the findings are correct on law, the suit for partition is not maintainable. 6. Mr. Chowdhury on behalf of the respondent-plaintiff however supported the judgment of the Court below on fact. Mr. Chowdhury argued that the evidence is clear that Sahara Khatoon was a woman of no means and the deed of disclaimer by Ahmed Khan or subsequent deed were made to defraud his brother. It is argued by Mr. Chowdhury that Ahmed Shah Khan himself has filed the suit, being Title Suit No. 91 of 1959 which was heard along with this suit where he himself admitted that the property being No. 25, Ekbalpore Lane was a joint property of his and his brother Raja Khan the plaintiff. Mr. Chowdhury contended that in view of the admission of the predecessor-in-interest of the defendant it can be said that no further evidence is required to prove the plaintiff's case for partition. Mr. Chowdhury contended that the parties jointly carried on business in fruits. It is further stated that the fruit business was being carried on in Stall No. C-77 in the Hogg Market. Mr. Chowdhury further contended that it is quite true that the plaintiff did not say about the smuggling but the facts remain that the brothers were involved in the smuggling case and were imprisoned. Some smuggling cases were being investigated sometime in 1928/29 and went on till 1937 when the parties came out of the jail. It is argued by Mr. Chowdhury that the disclaimer was made because this smuggler was apprehensive of the confiscation of the property, and therefore, Mr. Chowdhury argued that the deed of disclaimer was not acted upon and was made only to save the property, that is, 25 Ekbalpore Lane from being confiscated. It is argued by Mr. Chowdhury that the disclaimer was made because this smuggler was apprehensive of the confiscation of the property, and therefore, Mr. Chowdhury argued that the deed of disclaimer was not acted upon and was made only to save the property, that is, 25 Ekbalpore Lane from being confiscated. Both the brothers enjoyed the rent accrued from 25, Ekbalpore Lane jointly and from the joint fund, 16 Ibrahim Road was purchased and therefore the plaintiff is entitled to the partition as claimed. 7. The first point raised by Mr. P.N. Mitter on behalf of the appellant is that there cannot be a joint family fund in respect of the Muslim brothers. Mr. Mitter contended that assuming the finding of the Court below was correct, still under the law the plaintiff is not entitled to the partition. The Hindu idea of joint family cannot be obtainable in a Muslim family. 8. Under the Mahomedan Law, jointness of family is not recognised at all though various members of a Mahomedan family live in commensality and they do not form a joint family in the sense in which that expression is used with regard to the Hindus in Hindu law and there can be no presumption of jointness in favour of the joint family in the matter of acquisition of the property obtainable in the Mahomedan law. If a property is purchased by one brother when the two brothers live together jointly there is no presumption that the property was purchased with the joint fund. In a case reported in (1) ILR 8 Cal 826 (Hakim Khan v. Gool Khan) this Court held that "when the members of a Mahomedan family live in commensality, they do not form a "joint family" in the sense in which that expression is used with regard to Hindus; and in Mahomaden law there is not, as there is in Hindu law, any presumption that the acquisitions of the several members are made for the benefit of the family jointly". In the said case the plaintiff and the defendant were 3 brothers. The plaintiff brought this suit to recover possession of 1/3rd share of a house at Gora-bazar in Dum Dum, and a tank in Italgacha, on the allegation that they were the joint property of the brothers. In the said case the plaintiff and the defendant were 3 brothers. The plaintiff brought this suit to recover possession of 1/3rd share of a house at Gora-bazar in Dum Dum, and a tank in Italgacha, on the allegation that they were the joint property of the brothers. In the said case the brothers were connected with Karbar and lived in the same mess upto 1271 (1864) and their mother died in 1264 (1861). It was held by lower appellate Court that the Court of first instance that the Court below was wrong in holding that the parties being Mahomedan, the presumption of the Hindu law in favour of joint acquisition and joint family does not arise at all. Considering the point urged at page 830 the Division Bench of this Court held that "the Mahomaden law of inheritance is based on Sura-i-Nissa in the Koran, which was revealed in order to abrogate the customs of the Arabs and on the Hadis or traditions of the prophet. According to the principles of Mahomaden law any attempt to repudiate, the law of the Koran would amount to a declaration of infidelity, such as would render the individual concerned liable to civil punishment by the Kazee in this world, and to eternal punishment in the next. No custom opposed to the ordinary law of inheritance, which was created to destroy custom, would be recognised by the Doctors of the Mahomaden law, and in our opinion it follows as a natural consequence, that no such custom should be recognised by our Courts which are bound by express enactment to administer Mahomedan law in questions of inheritance among "Mahomedans". Their Lordships further held that "In this case the Sub-ordinate Judge has, we think, erred in deciding the question of title according to the principles of Hindu law, and so far as he has set aside the decision of the Lower Court, we are compelled to reverse his judgment". In the note portion of the said report 8, Cal. 826 (Hakim Khan v. Gool Khan) it appears that there was another judgment where the question as to the presumption of joint family relations amongst the Mahomedans was also raised in the case of Jaker Ali Chowdhury v. Raj Chunder Sen. 9. In the said case Mr. In the note portion of the said report 8, Cal. 826 (Hakim Khan v. Gool Khan) it appears that there was another judgment where the question as to the presumption of joint family relations amongst the Mahomedans was also raised in the case of Jaker Ali Chowdhury v. Raj Chunder Sen. 9. In the said case Mr. Justice Field made the following observation : "the appellant's vakeel, in one part of his argument, contended that the brothers Mahomed Daim and Asmutoollah lived together in coparcenary ; and he further contended that the presumption of the Hindu law, that all property acquired by members of a coparcenary must be presumed to have belonged to the family, jointly although such property may stand in the names of individual members of the family ought to be held to apply to this case". ......It was further held that "from the mere fact, if proved, of Mahomedans living in the same bari, or family-dwelling, and messing together it appears to us that no presumption arises that the property standing in the name or names of an individual member or members of that family is joint in the sense in which this term is used in Hindu law"…....It was held that the "general statement of witnesses that all the members of this particular family lived jointly and in commensality is not enough to introduce into the Mahomedan family a parcenership which is a concept of Hindu law". It appears to us on the basis of these judgments that even assuming that the parties lived in a joint mess and carried on joint karbar still the property being 25 Ekbalpore Lane being in the name of the elder brother does not per se become the property of the joint family of both the brothers as has been held by the Court below. The court below relied upon the passage in the Art. 57 of the Molla's Mahomedan Law, 1961 which provides that "Joint family business (1) When the members of a Mahomedan family live in commensality they do not form a joint family in the sense in which that expression is used in Hindu law. The court below relied upon the passage in the Art. 57 of the Molla's Mahomedan Law, 1961 which provides that "Joint family business (1) When the members of a Mahomedan family live in commensality they do not form a joint family in the sense in which that expression is used in Hindu law. Further, in the Mahomedan Law, there is not, as in the Hindu law any presumption that the acquisition of the several members of a family live in messing together are for the benefit of the family, but during the continuance of the family properties are acquired in the name of the managing member of the family, and it is proved that these are possessed by all the: members jointly. The presumption is that there are properties of the family and not the separate properties of the members in whose name they stand". The first part of the observation as has been seen cannot be deduced from the judgment of this Court reported in (1) 8 Cal, 826 (Hakim Khan v. Gool Khan). The other proposition of law of joint family property of the presumption regarding joint family property cannot, in our opinion, hold good in view of the judgment of the case reported in 8 Cal., 826. It appears that the last portion of the observation in the Art. 57 is based on a case reported in (2) ILR 59 Cal, 531 : AIR 1932 Cal., 538 (at 539-40). In the said case it appears that there was a joint ancestral property and karbar which were inherited by all the brothers. After the death of the Mahomedan father, the son, who inherited the property, continued the business for quite a long time. Thereafter the joint family continued as it did not break up with the death of the mother and the question arises whether the property purchased in the name of the managing brother was a joint property of the Mahomedan family. It was held that the property was joint property and partition was granted. The case has a distinctive quality and as such cannot be an authority on the broad proposition that any karbar between the two Mahomedan brothers will have the presumption of the Hindu law in the Mahomedan system also. On the other hand the case on the point as we have referred to is quite clear that this cannot be so. The case has a distinctive quality and as such cannot be an authority on the broad proposition that any karbar between the two Mahomedan brothers will have the presumption of the Hindu law in the Mahomedan system also. On the other hand the case on the point as we have referred to is quite clear that this cannot be so. We are, therefore, of the opinion that assuming the brothers carried on the business jointly in dry fruits, there cannot be a joint family property if one of the brothers purchased the property in his own name. 10. Mr. Chowdhury, however, contended that, as evidence adduced on behalf of the plaintiff conclusively proved that the property was purchased from the joint fund arising out of a joint business carried on by the two brothers but in the name of the elder brother even without going into the question of joint family property, the plaintiff is entitled to the partition in respect of the property in question which was admittedly purchased by the fund of both the brothers arising out of a joint business. Mr. Chowdhury referred to the passages from evidences in support of his contention that the property was purchased from the joint fund. We now examine the evidence adduced on behalf of the parties on the questions of joint fund and joint property. On behalf of the plaintiff 14 witnesses came to the box to depose about the jointness of the family and purchase from the joint fund. On behalf of the defendant 4 witnesses deposed saying that there was no joint fruit business. The parties were carrying on smuggling of opium and cocaine. They were apprehended and were jailed for 2 years and the property was purchased by Sayera Khatoon with her own money and the plaintiff has no right to claim any share in the property. The case of the plaintiff is that Ahmed Shah and Raja Khan were two brothers and were employed in the shop of Hazi Allah Bux and Fazle Elahi at New Market from 1913. Bibi Omar said in her answer to questions Nos. 20 to 25 that Bibi Omar was married sometime in 1926/27. She answered to question 20 saying that the brothers were carrying on business in dry fruits at New Market. Bibi Omar said in her answer to questions Nos. 20 to 25 that Bibi Omar was married sometime in 1926/27. She answered to question 20 saying that the brothers were carrying on business in dry fruits at New Market. Witnesses for the plaintiff, P.W. 1, 3 and 11 stated that Ahmed Shah and Raja Khan carried on business in dry fruits at New Market from 1917 onwards. P.W. 2, 7, 11 and 14 also stated that Ahmed and Raja Khan became the owner of the Stall No. C-77 in 1917 and carried on the said business till 1939 when it was closed down. On behalf of the defendant it is stated that there was no business in dry fruits but the brothers carried on the smuggling business of opium and cocaine all throughout. When this suggestion was made to the plaintiff's witnesses by the defence in their cross-examination, it appears that all of them stated including Bibi Omar that they have no knowledge of the case and the imprisonment of Ahmed Shah and Raja Khan for the offence of smuggling. 11. It is however admitted by Mr. Chowdhury in his argument that the brothers carried on smuggling business and they were hauled up and were imprisoned for 2 years. In fact, Ext. 12 makes it clear for the case of the defence that Ahmed Shah and Raja Khan were involved in smuggling business and in the smuggling conspiracy were hauled up and tried and were imprisoned for about 2 years between 1933 and 1937. From the judgment of the Court below it has also been found, as a question of fact, that the brothers, Ahmed Shah Khan and Raja Khan, were engaged in illegal deals and involved in smuggling of cocaine and opium. On the basis of this evidence, it was also found that the brothers were not only engaged in fruits business, which is a joint venture, but also in the illegal transaction of smuggling of opium and cocaine. It appears to us however even from the evidence of the witnesses for the plaintiff who have denied the knowledge of imprisonment of Ahmed Shah and Raja Khan as accused after they were found guilty of smuggling which was being investigated and subsequently tried in criminal Court, was not known to these witnesses at all. It appears to us however even from the evidence of the witnesses for the plaintiff who have denied the knowledge of imprisonment of Ahmed Shah and Raja Khan as accused after they were found guilty of smuggling which was being investigated and subsequently tried in criminal Court, was not known to these witnesses at all. In fact even Bibi Omar was emphatic in her assertion that there was no smuggling case against the brothers and that they were not sent to jail. 12. The plaintiff's witnesses stated that the Stall No. C-77 in the New Market belonged to Hazi Allah Bux and Ahmed Shah Khan and Raja Khan were only employees under Hazi Allah Dux. Thereafter in 1917 Hazi Allah Bux gave this fruit Stall to Reja Khan and Ahmed Shah Khan and in the said fruit stall Reja Khan and Ahmed Shah Khan continued the business. Other witnesses also stated in the same line. It appears from the Corporation Register that the Stall continued in the Dame of Hazi Allah Bux till about 1939 when admittedly the business was closed down. It appears to us however that Ext. A is a certified copy of the rent roll of the permanent stall of Hogg Market. In the Corporation Register it shows that Stall No. C-77 was let out to Hazi Allah Bux and Fazle Ilahi and they came to occupy the said stall on 8th January, 1917 and continued there till the date of termination of the occupation of the stall on 13th June, 1939. It gives a lie to the evidences on behalf of the plaintiff that Ahmed Shah Khan and Reja Khan were occupying the Stall No. C-77 and continuing dry fruits business therein between the period 1920 and 1939. 13. Mr. Chowdhury however contended that it is not very unnatural that the Stall stood in the name of Hazi Allah Bux and Fazle Ilahi but Ahmed and Reja continued to occupy the same. In this case the plaintiff's witnesses differed in a major details about the number of the employees who were in the Stall. In view of the fact, no witnesses, not even Bibi Omar, could say how many persons were employed in the stall. It is safe to rely on the public documents than the oral evidence of the witnesses given about 30 years after the incident took place. In view of the fact, no witnesses, not even Bibi Omar, could say how many persons were employed in the stall. It is safe to rely on the public documents than the oral evidence of the witnesses given about 30 years after the incident took place. Bibi Omar stated that there were 10/12 persons working in the dry fruits shop. No one of the other plaintiff's witnesses stated that there were 10/12 persons working in the shop and Bibi Omar did never go to the shop at all during the continuance of the business long about 20 years. The Court below heavily relied upon the evidence of PW 4. who it is stated, is an independent witness, in our opinion, PW 4 who is a land speculator, could not produce the letter of authority by which he was appointed the broker for purchase of the property at 25, Ekbalpore Lane and he did not even remember bow much did he get as brokerage. He stated that be was present when the document was executed in the Registration Office but could not say how much was paid at the Registration Office. He stated that Rs. 10,000/- was paid at the Registration Office but from the Memo of consideration of the said Ext. it does not appear that on the date of registration only Rs. 10,000/- was paid on 16th December, 1927 when the deed was registered. It appears that the said broker, was not even witness to the deed. From the Hazira which was filed on 5th March 1968, the name of PW 4 is not to be found. In our opinion, the occupation of PW 4 was a land speculator. He has never stated that he was a land broker or agent but he was a land speculator. He did not even remember the name of the Attorney or address of his Office who prepared the deed, though he went to his office. In our opinion, this evidence is not worthy of belief. Witnesses for the plaintiff are also not proper witnesses to say that the property was purchased from the joint fund. Their information are all hearsay evidence and is liable to be disbelieved on the point of accumulation of the joint fund for the purchase of the property from the said fund. Witnesses for the plaintiff are also not proper witnesses to say that the property was purchased from the joint fund. Their information are all hearsay evidence and is liable to be disbelieved on the point of accumulation of the joint fund for the purchase of the property from the said fund. Bibi Omar is, however, another witness who stated that there was a joint fund which arose out of a joint fruit business. Bibi Omar stated that Reja Khan used to bring the money from the shop 3/4 days of the last of a month and would give it to her for giving to Bara Baba that is Ahmed Shah Khan. The evidence is that both the brothers conducted the fruit business jointly and used to go to the shop and stayed there. It is hard to believe that the younger brother would alone bring the money from the shop and thereafter he gave it to Bibi Omar who handed over the money to Bara Baba at the end of the month. It appears that to Bibi Omar he gave about Rs. 2,000/-, 3,000/-, 4,000/-. and Rs. 5,000/-. Bibi Omar stated that she did not know how to count the money and sometime she could count by Rs. 20/-. It is hard to believe that Rs. 2000/-, 3000/-, 4000/- and Rs. 5000/- are given by Reja Khan to Ahmed Shah Khan to be made over to Ahmed Shah Khan through Bibi Omar and it is also hard to believe further that Bibi Omar is a person who could say how much money was given to Ahmed Shah Khan because it was difficult for her to count the money at all before she handed them over to Ahmed Shah Khan. In the state of evidence, it is difficult to believe that there was any joint fund through which the property was purchased by both the brothers. It is no doubt true, as Mr. Chowdhury has specifically pointed out, that in the judgment of the Session Judge it has been stated that the brothers were living in comfort and they were living together at 25 Ekbalpore Lane. Ext. 12 shows that the accused in the said case were carrying on business of smuggling including his two brothers and that they were in the said business in the big way. Ext. 12 shows that the accused in the said case were carrying on business of smuggling including his two brothers and that they were in the said business in the big way. If the joint business in dry fruits in Stall No. C-77 is not believed and we do not believe it, then the only other business is smuggling in which they earned a lot of money. It appears to us however that even if we believe that there was a joint business in dry fruits in another man's stall there is scope for holding that the plaintiff and the defendants, Ahmed Shah and Reja Khan, were also involved in a big way in the smuggling business of opium and cocaine and their joint fund, if any, was built up from the profit of the dry fruits business as well as this smuggling business of cocaine and opium. In fact the Court below has held that apart from the joint fruit business, there was illegal transaction of smuggling in which the brothers were companions. 14. Mr. Chowdhury however contended that in the plaint filed by Ahmed Shah Khan, he admitted that 25, Ekbalpore Lane property was purchased from the joint fund and as such it goes to the very root of the matter and no further evidence ace required to be adduced by the plaintiff in support of their case and the fruit business was a joint business and the property purchased in the name of the elder brother is a joint property. Mr. Chowdhury argued that one or two contradictions in respect of the fact is that who was in possession of the Stall or how many persons were employed will not make the evidence of the witnesses unworthy of belief. Mr. Chowdhury referred to (3) AIR 1965 SC., 277 (Ugar Ahir v. State of Bihar). In paragraph 6 of the said judgment, it has been stated that the maxim falsus in uno falsus in ombibus' (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and in terms of the falicitous metaphor, separating the grain from the chaff. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and in terms of the falicitous metaphor, separating the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest". Applying this principle in the facts of this case, if the exaggerations of Bibi Omar are omitted, in correct details of other witnesses regarding jointness of the dry fruit business are discarded, the untrue statement regarding the carrying on business of smuggling are considered, then the evidence of the plaintiff's witnesses cannot be believed and must be discarded. 15. So far as the admission of the plaint in T.S. No. 91 of 1959 is concerned it is clear that the suit was filed when Ahmed Shah was residing with Reja Khan at 8A Ekbalpore Lane. It is the case of the plaintiff that Ahmed Shah Khan left 25 Ekbalpore Lane between 9 and 12 months before he died. Ahmed Shah died on 1st May, 1960. The suit was filed on 25th November 1959 when admittedly Ahmed Shah Khan was residing with Reja Khan at 8A, Ekbalpore Lane. The plaint was drafted by a lawyer who was also a lawyer for Reja Khan in T.S. No. 81 of 1959. Sri Bhattacharya, junior to Golam Mohiuddin, Advocate for the plaintiff in T. S. No. 81 of 1959 deposed in this case. PW 10 stated in his evidence that he filed the T.S. No. 91 of 1959. Ext 6A which was a draft of the plaint in TS No. 91 of 1959 was filed by P.W. 10 as an Advocate of Ahmed Shah Khan, he stated that Ahmed Shah Khan signed the plaint. He did not sign in his presence. He instructed the witness and Mohiuddin about the suit. The witness did not know the hand-writing of Ahmed and he was satisfied on the version of the agent that the plaint was signed by Ahmed. In this state of evidence, it cannot be said that the plaint in T.S. No. 91 of 1959 was properly signed and verified by Ahmed Shah Khan. The witness did not know the hand-writing of Ahmed and he was satisfied on the version of the agent that the plaint was signed by Ahmed. In this state of evidence, it cannot be said that the plaint in T.S. No. 91 of 1959 was properly signed and verified by Ahmed Shah Khan. It is however true that if the plaint is properly signed and verified, it may be admissible in the evidence but if it is not properly verified the question of admissibility does not arise. Moreover in the present case the plaint in T. S. No. 91 of 1959 was not even an Ext. and what was exhibited is only a draft of the plaint (Ext. 6). In our opinion therefore, the plaint, not having been varified, the admission made therein cannot be used as against the defendant in this case. 16. Mr. Mitter further contended, and in our opinion rightly, assuming for a moment that it is an admission by Ahmed Shah as against himself, the plaint in T.S. No. 91 of 1959 was filed on 25th November, 1959 after the lease was executed on 10th July, 1956. It appears to us that under section 18(1) and (2) of the Evidence Act, this admission cannot be treated admission in respect of the plaintiff's possession prior to the execution of the lease after he has parted with his interest by execution of the lease. In our view, therefore, there was no dry fruit business carried on by both the Brothers at Stall No. C-77, Hogg Market. Both the brothers however carried on some business of smuggling including dry fruits and earned a lot of money on that score. It appears, therefore, in view of the fact that under the Mahomaden law there cannot be a joint family property, the question of partition between the two brothers carrying on business jointly does not arise. The suit therefore as framed for partition is liable to be dismissed. 17. Let us see whether the suit for 8 annas share of contractual partnership is maintainable or not. 18. Mr. Chowdhury contended that admittedly the brothers carried on business jointly. Whatever the kind of business, the plaintiff, therefore, may be entitled to the half-share into the property purchased from the joint fund. 19. Mr. Mitter contended that if the business itself is illegal, no suit for dissolution of contractual partnership is maintainable. 18. Mr. Chowdhury contended that admittedly the brothers carried on business jointly. Whatever the kind of business, the plaintiff, therefore, may be entitled to the half-share into the property purchased from the joint fund. 19. Mr. Mitter contended that if the business itself is illegal, no suit for dissolution of contractual partnership is maintainable. It must be stated that Mr. Chowdhury did not base his argument on the basis of contractual partnership. He stated in a simple way as follows : That two brothers were carrying on joint dry fruits business in Hogg Market and purchased the property out of the joint fund and as such he is entitled to the 1/2 share in the property. Mr. Chowdhury contended that even that suit for partition is not maintainable as the finding of the Court below is that the brothers were carrying on business in dry fruits as well as in the smuggling of cocaine and opium and if the property was purchased from the assets of the illegal partnership, a suit for partition is maintainable. 20. Mr. Mitter referred to the cases reported in (4) AIR 1926 All., 591 (Mewa Ram v. Ram Gopal, (5) AIR 1927 All., 487 (K. B. Narasimha Chettiar v. K. P. Balarishna Chetty, (6) AIR 1951 Mad., 291 (Kumaraswami v. Chinnathami) and (7) AIR 1927 Mad. 123 (Punniah v. Sagarajee Kasarmal). In AIR 1927 Mad. 123 the case arose out of a suits dissolution of partnership and for taking of partnership accounts. The partnership was formed between four firms which were unregistered. The partnership firm carried on business and made profits. While the matter was pending in appeal, it was found that the total number of persons constituting the four firms which entered into this partnership, to deal as a combined concern in these goods, consisted of 22 persons and the question arose as to how far on the plaint such a partnership would be legal in view of section 4, Cl. (2) of the Companies Act. The Division Bench of the Madras High Court held as follows : "We are of opinion that having regard to the plaint the partnership which is sought to be dissolved is illegal having regard to section 4 of the Indian Companies Act. The suit fails and the plaintiff will not be entitled to any decree". (2) of the Companies Act. The Division Bench of the Madras High Court held as follows : "We are of opinion that having regard to the plaint the partnership which is sought to be dissolved is illegal having regard to section 4 of the Indian Companies Act. The suit fails and the plaintiff will not be entitled to any decree". The similar question arose in the case reported in (4) AIR 1926 All 591 (Mewa Ram v. Ram Gopal). In the said case Mr. Justice Sulaiman and Mr. Justice Mukherji differed on the question of law which having been referred to the third Judge, it was held that the suit filed was not maintainable. It appears in this case that the plaintiff filed the suit for declaration that the partnership was invalid for a refund of the plaintiff's subscription out of the proceeds realized by an auction sale of the factories or for exclusion of the plaintiff from the partnership and a refund of his subscription in some other proper way. In the alternative a division of the properties of the factories and, if proper an auction sale of the property and an award to the plaintiff of a 1/8th share in their sale proceeds. It appears that when the partnership was formed, more than 22 persons were shareholders of the factory. Mr. Justice Sulaiman held that if a member is anxious to relieve himself from all further liabilities he should be allowed to come to Court and obtain a declaration that the Association is illegal. But the Court can not assist the plaintiff in getting accounts made, so that he may have his full share of the profits made by the illegal Association, nor can the Court order winding up. Mr. Justice Sulaiman however held that the simple partition of assets can be granted. Mr. Justice Mukherji and Mr. Justice Walsh did not agree with Mr. Justice Sulaiman's view. Mr. Justice Mukherji held at page 598 that– "Will the Court enforce an agreement which is void under the law ? There can be only one clear answer, viz., in the negative. The learned Judge of the Court below was of the same opinion. But he thought that he might make a distinction and held that he was dividing the property belonging to the parties and that there was no objection to this course of proceeding. There can be only one clear answer, viz., in the negative. The learned Judge of the Court below was of the same opinion. But he thought that he might make a distinction and held that he was dividing the property belonging to the parties and that there was no objection to this course of proceeding. But the question is : Is not the learned Judge doing the same act which he himself holds is prohibited by law and only gives another name for the act in order to make it lawful. The partition which he has ordered will involve, as it must do, realization of the assets of the company, payments of its just debts, sale of its property and distribution among its members. In the relief of dissolution of partnership or of winding up, the same thing has to be done and nothing beyond that. I am, therefore, clearly of opinion that the decree made by the learned Judge of the Court below cannot be sustained". For the difference of the opinions with Mr. Justice Sulaiman, the matter was referred to Mr. Justice Walsh and Mr. Justice Walsh agreed with Mr. Justice Mukherji and Mr. Justice Walsh held at page 602 as follows :– "But for my own part I am of opinion that however the decree in this case were framed it would be in substance and in fact an order to wind up this association, realize the assets, discharge the liabilities and distribute the same, and whether you call the gentleman charged with carrying out that duty a Receiver or an Amin or a Commissioner, he would be in substance a liquidator, and liquidation is clearly prohibited by the language of S. 4 of the Companies Act, which treats an association such as this as one not recognized by law. I am influenced to some extent in arriving at the opinion at which I have arrived by the consideration that if a decree of his kind were to be granted in a suit framed as this suit has been in the case of such an association as this, it would be in substance to entertain an application for winding up the association and, would, therefore, render S.4 a nullity, because if such a precedent were once established I can see nothing to prevent the formation of an unlimited number of such associations consisting of more than 20 persons carrying on trade for the purpose of gain, any one of the members of which could come to the Court and ask for relief in a suit in the nature of a winding up of the assets of the associations. The result would be to give such associations under another guise the cloak of legality although the statute has forbidden them". The same principle was reiterated in the case reported in (5) AIR 1927 All 487 (B.K. Narasimha Chettiar v. K. P. Balarishna Chetty). In this case admittedly the brothers were involved in the illegal business of smuggling and the property was purchased out of the said illegal business or in the other words their assets were out of the illegal transaction. Therefore the plaintiff cannot claim or maintain the suit for partition of the assets accrued out of the illegal business of smuggling. 21. In the result, the plaintiff's Title Suit No. 81 of 1959 fails and the appeal succeeds. The decree in Title Suit No. 81 of 1959 is set aside. The appeal is allowed with costs. 22. Let the two Receivers appointed by the Court below submit their accounts in the said Court within two months from today and thereafter they will be discharged immediately by the Court below. Sharma, J. : I agree.