JUDGMENT 1. - This fiat appeal by defendant Anand Prakash alias Laduram is directed against the preliminary decree, passed by the Additional District Judge, Jodhpur, in a suit for partition of mesne profits. 2. The plaintiff respondents Arjun Singh and his mother Suraj Kanwar based their case on the following pedigree: 3. None of the parties disputed the correctness of the above pedigree table. 4. The facts alleged in the plaint are like this : Harlal was the common ancestor of the plaintiffs and defendants 1 to 3. The father of Arjunsingh, namely, Ghasi Ram died in 1934. At the time of death of Ghasiram, the plaintiff Arjunsingh was aged 3 years. Prior to the death of Ghasiram all the descendants of Harlal constituted joint Hindu family & they resided together. According to the plaintiffs. Harlal left behind him immovable properties detailed at serial Nos. 1 to 13 and movables worth Rs. 10,000/- detailed at serial No. 14 in Schedule `A' attached to the plaint. The version of the plaintiffs is that for the sake of convenience the parties began to reside in separate houses. Defendant No. 1 Anand Prakash occupied House No. 1, Plaintiff Arjun Singh occupied House No. 2, Defendant No.3 Ram Swaroop occupied Houses Nos. 3 and 4 and Defendant No. 2 Kishore Singh occupied House Nos. 5, 6 and 7. According to the plaintiffs this arrangement has made for the convenience of the parties. The plaintiffs in their plaint mentioned no specific date or year when this so called arrangement was made. The plaintiffs denied that there was partition amongst the descendants of Harlal at any time. The plaintiffs, therefore prayed that the entire joint family property detailed in Schedule 'A' attached to the plaint be partitioned by metes and bounds and the plaintiffs be allotted 1/4th share therein. The plaintiffs further alleged that House No 8 and Shop Nos. 9 to 13 mentioned in Schedule `A' were mortgaged with possession on 23-6-43 for Rs. 35,000/- by Defendants Anand Prakash, Kishoresingh and Ram Swaroop in favour of the mortgagees. Defendant Nos. 4 to 8. According to the plaintiffs this mortgage was executed without their consent or knowledge and they 'were therefore not bound by it. The plaintiffs also claimed their 1/4th share in the joint family ornaments described at serial No. 14 in schedule `A'. 35,000/- by Defendants Anand Prakash, Kishoresingh and Ram Swaroop in favour of the mortgagees. Defendant Nos. 4 to 8. According to the plaintiffs this mortgage was executed without their consent or knowledge and they 'were therefore not bound by it. The plaintiffs also claimed their 1/4th share in the joint family ornaments described at serial No. 14 in schedule `A'. The plaintiffs stated that these ornaments remained in possession of Defendant No 3 Ram Swaroop. The plaintiffs also claimed a sum of Rs. 2295/- on account of rent for the last three years of the mortgaged properties. The plaintiffs further claimed a sum of Rs. 2293/- as costs of improvement made by them in House No 2 occupied by them. According to the plaintiffs the mortgage of the property was made by the defendants 1 to 3 at the time of minority of the plaintiff Arjun Singh for their personal benefit and not for the benefit or legal necessity of the family. The plaintiffs in the circumstances claimed that they were not entitled to pay the mortgage debt. 5. The suit was contested by all the defendants including the mortgagees. The defendants Nos. 1 to 3 admitted that the immovable properties mentioned in Schedule `A' attached to the plaint were ancestral properties and were inherited by them from their ancestor Harlal. Defendant No. 1 Anand Prakash pleaded that there was total partition of the entire joint family properties mentioned in Schedule `A' attached to the plaint in the month of June 1952. He further alleged that after the partition, each coparcener remained in exclusive possession of the house or houses allotted to his share. Defendant No. 1 also pleaded that it was agreed by each member of the family that he would share the burden of the mortgage debt proportionate to his share in the property for, the mortgage debt was incurred for legal necessity and benefit of the family. Defendant No 1 also took the plea that five shops situated at Udaimandir and not included in Schedule 'A' attached to the plaint were joint family properties and they were allotted to the share of the plaintiffs at the time of partition. According to Defendant No. 1 all these five shops were acquired by the joint family fund. As regards ornaments left by Harlal, Defendant No. 1 showed his ignorance. According to Defendant No. 1 all these five shops were acquired by the joint family fund. As regards ornaments left by Harlal, Defendant No. 1 showed his ignorance. Some more pleas were raised by Defendant No. 1 but they need not be mentioned here as they have no relevancy in the present appeal. 6. Defendant No. 2 Kishore Singh took somewhat different stand. According to him there was a partition in respect of House Nos. 1 to 7 mentioned in Schedule `A' attached to the plaint. According to this defendant the mortgaged properties consisting of House No. 8 and Shop Nos. 9 to 13 were kept joint and the rest of the properties were partitioned and the property allotted to the share of each member was handed over to him. He also mentioned that the said partial partition was made on 16-6-52 and it was given effect to from 1-7-52. According to him each member of the joint family began to live separately from 1-7-52 in the house or houses allotted to his share and he also began to realise rent from the tenants living in the house or houses allotted to him. As regards the mortgage, he pleaded that it was effected for the legal necessity of the joint family. In additional pleas at page 57 of the paper-book be stated that contract for supply of goods was taken by Defendant Anand Prakash from the then Jodhpur-State in the year 1938-39 which resulted in huge loss. He farther stated that in order to maintain the prestige of the family House No. 8 and shop Nos. 9 to 13 belonging to the joint family were mortgaged in the year 1939 with Thikana Chanod. The said property was later on redeemed from Thikana Chanod and remortgaged with mortgagee Nos. 4 to 8. He clearly stated at the end of para No. 1 of the additional pleas that this mortgage was executed for the legal necessity of the family and for the benefit of the estate. 7. Defendant No. 3 Ram Swaroop in his written statement admitted separate allocation and possession of the house or houses by each member of the family in the month of July 1952, but he denied that there was any partition of the family properties. 7. Defendant No. 3 Ram Swaroop in his written statement admitted separate allocation and possession of the house or houses by each member of the family in the month of July 1952, but he denied that there was any partition of the family properties. According to him the separate possession of the property by each in, member of the family was made for the convenience of the members of the family. He also admitted that in the year 1952 utensils, clothes etc. were also allotted to each member of the family'. No separate allocation, was however made in respect of House No. 8 and shop Nos. 9 to 13. As regards the mortgage-deed, the defendant No. 3 showed his ignorance. He however admitted that the defendants Anand Prakash and Kishore Singh did borrow some money from some person at a time when he was minor. He further stated that as far as he remembered his signatures were obtained on some document after he attained majority but he was unable to say what was the nature of that document. According to him no money was borrowed for legal necessity and benefit of the family. 8. The mortgagees also filed separate written-statement. The only plea which they took was that originally the rate of interest was 33/4 annas percent per mensem but latter on it was enhanced to 6 annas percent per mensem. The admitted that they were put in possession of the mortgaged property and they realised rents from the tenants occupying the mortgaged property. It was also mentioned that out of the mortgaged property the rent of shop No 10 in occupation of Bata Shoes Store was realised by Defendant No. 1 Anand Prakash. According to the mortgagees upto the date of the written statement a sum of Rs. 28,000/- was due to them. 9. On the pleadings of the parties the following issues were framed by the learned trial court : "l (a) Whether the immovable property mentioned in schedule A attached with the plaint is joint ancestral property of the parties and hence is liable to be partitioned amongst them? (b) Whether the movable property mentioned in para 5 of the plaint is also joint and liable to be partitioned? (c) Whether the property was partitioned amongst the parties in June 1952 and the parties are in possession of their shares in pursuance of the partition? (b) Whether the movable property mentioned in para 5 of the plaint is also joint and liable to be partitioned? (c) Whether the property was partitioned amongst the parties in June 1952 and the parties are in possession of their shares in pursuance of the partition? (d) Whether the plaintiff has spent Rs. 2253/- in the repairs of the property in his possession and is entitled to get it allotted to him in partition? 2 (a) Whether the five shops situated at Udaimandir in the City of Jodhpur which are in possession of the plaintiff are also part of the joint Hindu family property and liable to be partitioned? (b) If so, whether the plaintiff is in adverse possession of the shops, and hence suit is barred? 3. Whether the property mentioned in schedule A filed by the defendant No. 3 also forms part of the joint Hindu family property and is liable to be partitioned? 4. Whether the joint Hindu property was mortgaged to defendant Nos. 4 to 8 for payment of any antecedent debt or for any legal necessity of the joint Hindu family consisting of the plaintiff and defendant Nos. 1 to 3 and hence it is binding on them? 5. What are the assets of the joint Hindu family firm Magniram Har Lal and its subsequent substitute? If so, are they also liable to be partitioned? 6. Whether the plaintiffs are entitled to Rs. 2295/- as mesne profits? 7. Whether the court fee paid is insufficient? 8. Whether the suit is barred by limitation? 9. To what relief are the plaintiffs entitled?" 10. On consideration of the evidence led by the parties the learned trial Judge came to he following conclusions:- (1) That the properties mentioned in Schedule `A' of the plaint were ancestral properties and were inherited by the plaintiffs and defendants Nos. 1, 2 and 3 from their common ancestor Har Lal. (2) That no partition had taken place of the joint family properties mentioned in Schedule A except the ornaments valued at Rs. 10,000/-. (3) That the ornaments valued at Rs. 10,000/- were not part of the joint family properties. According to the learned judge these ornaments were "Stri Dhan" of the widow of Har Lal and she was fully justified in giving them away to Defendant No. 3. (4) That the plaintiffs had incurred an expenditure of about Rs. 10,000/-. (3) That the ornaments valued at Rs. 10,000/- were not part of the joint family properties. According to the learned judge these ornaments were "Stri Dhan" of the widow of Har Lal and she was fully justified in giving them away to Defendant No. 3. (4) That the plaintiffs had incurred an expenditure of about Rs. 2293/- in making additions and alterations on House No. 2. (5) That the five shops situated at Udaimandir are exclusive property of the plaintiffs and they do not belong to the joint family. (6) That the land and 'piao' situated at Masuria, Jodhpur, were dedicated for the common benefit of the general public and as such this dedication cannot be revoked and the land and 'piao' cannot be held to be joint family property. (7) That the property mentioned in Schedule attached to the written statement of Defendant No. 3 has not been proved to be joint family property. (8) That the mortgage-deeds executed in favour of Thikana Chanod and Defendants Nos. 4 to 8 were not made for any legal necessity or for payment of antecedent debt. These mortgages were made for the benefit of Defendant No. 1 and as such Defendant No. 1 alone was liable to repay the mortgage debt to Defendant Nos. 4 to 8. (9) That in respect of the mortgaged property the plaintiffs as well as Defendants Nos. 2 and 3 are entitled to 1/4th share out of the rents and profits realised by Defendant No. 1 or the mortgagees from 1940 upto the date of the actual partition. (10) That the court fee paid by the plaintiffs was deficient. 11. The learned trial Judge, therefore, ordered the plaintiffs to pay the balance of court fee amounting to Rs. 2555/- on or before 14th of August, 1969. It was also ordered that in case of failure by the plaintiffs to pay the requisite amount of court fee by the specified date, the plaint shall stand rejected and in case the plaintiffs paid the court fee the suit shall stand decreed in the following manner : "A preliminary decree for partition is passed in favour of the plaintiffs and against defendants Nos. 1, 2 and 3 to the effect that the plaintiffs and defendants Nos. 1, 2 and 3 to the effect that the plaintiffs and defendants Nos. 1 to 3 will be entitled to 1/4th share each on partition in respect of the immovable properties mentioned in Schedule A of the plaint viz. (1) House Nos. 1 to 8, (2) shop Nos. 9 to 13 situated in Sojatigate,Jodhpur, (3) 1/4th share or rents and profits in respect of shop Nos. 9 to 13 and house No. 8 for which the defendant No. 1 alone will be liable to account for the rent and profits of this property to the plaintiffs and defendant Nos 2 and 3, to the extent of 1/4th share of each on partition in respect of the immovable properties mentioned in Schedule A of the plaint viz. (1) Houses 1 to 8 (2) shop Nos. 9 to 13 situated in Sojatigate, Jodhpur (3) 1/4th share of rents and profits in respect of shop Nos. 9 to 13 and House No. 8 for which the defendant No. 1 alone will be liable to account for the rents and profits of this property to the plaintiffs and defendant Nos. 2 and 3 to the extent of 1/4th share of each from the period 1940 upto the date of actual partition. Shri P.N. Mohanani is appointed as the Commissioner to divide the properties mentioned in Schedule A of the plaint by metes and bounds, taking into his consideration the convenience and requirements of the parties, and having due regard to the possession of the plaintiff; on individual properties, if it be so expendient. The Commissioner will also take account of rents and profits from defendant No. 1 in respect of shops 9 to 13 and house No 8 situated in Sojatigate, Jodhpur from 1940 upto the date of partition. This partition by metes & bounds will be effected in consultation with all the parties concerned. The defendant No. 1 will be liable to pay off the mortgage debt and the interest, if any, in respect of the mortgaged properties, i.e. shop Nos. 9 to 13 and house No. 8, as stated above and the other parties to the partition, will not be liable for any contribution towards payment of mortgage debt. The plaintiffs' suit is decreed with costs against defendant Nos. 1 and 2. 9 to 13 and house No. 8, as stated above and the other parties to the partition, will not be liable for any contribution towards payment of mortgage debt. The plaintiffs' suit is decreed with costs against defendant Nos. 1 and 2. In case the plaintiff fails to pay the required court fee, as indicated above his plaint shall stand rejected, and the plaintiffs will not be entitled to any relief whatsoever. That a decree-sheet be drawn accordingly." 12. It is against this decree that the Defendant Anand Prakash has preferred this appeal. 13. We have heard learned counsel for the parties and Defendant No. 3 in person. 14. Before going into the merits of the case, we could like to mention that this appeal was filed by Anand Prakash on a court fee stamp of Rs. 10/-. An objection was raised by the office that the court-fee paid by appellant was insufficient as per judgment the court below. This office objection was over-ruled by this Court vide order-sheet dated 17.12.69 and it was held that the court fee paid by the appellant was sufficient. In view of the order dated 17.12.69, the finding of the court below that the court fee paid by the plaintiffs in the trial court was deficient, cannot be sustained. We are informed that the plaintiffs paid the balance of court-fee amounting to Rs. 2555/- in the court below as ordered in the impugned decree but that was refunded to the plaintiffs by the lower court on the order of this Court dated 17.12.69. We, therefore, do not propose to go into the question as to the sufficiency of the court fee paid by the plaintiffs in the lower court and by the defendant- appellant in this Court. 15. Coming to the merits of the appeal, we may state at the outset that none of the parties before us challenged the correctness of the finding of the court below that the immovable properties mentioned in schedule `A' attached to the plaint were inherited by the plaintiffs and defendant Nos. 1 to 3 from their ancestor Halal and further that the plaintiffs & Defendant Nos. 1, 2 & 3 have each 1/4th share in them. 1 to 3 from their ancestor Halal and further that the plaintiffs & Defendant Nos. 1, 2 & 3 have each 1/4th share in them. Again, the learned counsel for the defendant-appellant did not challenge the correctness of the finding of the court below that the five shops situated at Udaimandir exclusively belonged to the plaintiffs but this finding has been challenged by way of cross-objection by Defendant No. 3. None of the parties has any grudge in respect of the finding of the court below that the land and `piao' situated at Masuria, Jodhpur, were dedicated for the use of the public and as such they were not liable to be partitioned. Again neither the plaintiffs nor Defendant Nos. 1 and 2 are desirous that the ornaments mentioned in Schedule `A' and given to Defendant No. 3 be partitioned. The plaintiff as well as Defendant Nos. 1 and 2 have admitted before us that in the month of July 1952 there had been partition of the joint family immovable properties namely Houses at serial Nos. 1 to 7 mentioned in Schedule `A' attached to the plaint and further that the plaintiffs as well as defendant Nos. 1, 2 and 3 are in occupation of the share allotted to them at that partition. So far as the plaintiffs and defendant Nos. 1 and 2 are concerned their contention now is that house No 8 and shop Nos. 9 to 13 were left undivided in the year 1952 and the said properties may now be partitioned and 1/4th share be allotted to the plaintiffs and likewise the defendant Nos. 1, 2 and 3. Defendant No 3 Shri Ram Swaroop is however not agreeable to this stand taken up by the plaintiffs and defendant Nos. 1 and 2 in this Court. He vehemently contends that there had been no partition of any of the joint family immovable properties in the year 1952. According to him House Nos. 1 to 7 were no doubt allotted to the parties but it was so done for the convenience of the coparceners. No partition by metes and bounds of House Nos. 1 to 7 was effected in the year 1952 The question that arises for consideration in this appeal is whether there had been any partial partition of the joint family property in the month of July 1952? No partition by metes and bounds of House Nos. 1 to 7 was effected in the year 1952 The question that arises for consideration in this appeal is whether there had been any partial partition of the joint family property in the month of July 1952? It is admitted case of the parties that in July, 1952 House No.1 mentioned in Schedule A attached to the plaint was given for occupation exclusively to Defendant No. 1 and similarly House No. 2 to the plaintiffs, House Nos. 3 and 4 to Defendant No. 3 and House Nos. 5, 6 and 7 to Defendant No 2. It is further not in dispute that in July 1952 no partition or allocation of possession was effected in respect of House No 8 and Shop Nos. 9 to 13 mentioned in Schedule `A' of the plaint. In connection with partition of Houses Nos. 1 to 7 in the year 1952, our attention was drawn to Ram Swaroop's previous statement Ex D.2/Dl appearing at page 312 of the paper-book. This statement was made by Ram Swaroop in the suit for eviction filed by him against his tenant Deo Ram in respect of a portion of one of the houses allotted to him in the year 1952. In that statement Ramswaroop admitted that there had been a partition of the joint family properties on 1-7-52 and that the disputed house was allotted to his share. But attention was also drawn to the receipts Ex D.l/DW 4 (1) & Ex D1/D W 4 (2) relating to the period after 1952. These receipts show that Ram Swaroop realised rent from Kishan Lal in respect of the house allotted to his share. But attention was also drawn to the receipts Ex D.l/DW 4 (1) & Ex D1/D W 4 (2) relating to the period after 1952. These receipts show that Ram Swaroop realised rent from Kishan Lal in respect of the house allotted to his share. Our attention was also drawn to the written statement of Defendant No. 3 wherein he stated as follows:- tk;nkn lkfey t:j jgh exj tqykbZ lu~ 1952 esa gjykyth ds rhuksa yMds% izfroknk uEcj 1] 2 o 3 oknh uEcj 1 us o jtkeanh oknh uEcj 2 o vkil esa lgqfy;r ds fy;s edkur dk o nhxj ?kj fcdzh ds nje; diM+s vkfn dqN vyx vyx fd;s Fks vkSj lHkh ls ml ij vyx vyx dkfcr gS] ;g eqdkfcy ugh Fkk nqdkur vkfn T;ksa dh R;ksa jgh vkSj ckaVk dEiuh ds tks nqdkusa fdjk;s gS mldk fdjk;k 100@& :i;s ekgokj vkrk Fkk] og izfroknh uEcj 1 ysrk Fkk o vc rd ysrk gS blds ckcr ;g r; gqvk Fkk fd blesa ls 810@&:i;s lkykuk v[kjs vkB lkS nl :i;s lkykuk izfroknh uEcj 1 uEcj 3 dks nsxk o ckdh tks cpsxk :i;s rhu fgLls djds ,d fgLlk izfroknh uEcj 1 ,d fgLlk izfroknh uEcj 2 o ,d fgLlk oknh uEcj 1 dks fn;k tkosxk exj izfroknh uEcj 1 us vkt rd islk ugh fn;k o reke fdjk;k mlh ds ikl gS tks Hkh caVokjk esa 'kkfey fd;k tkosA pqafd mijksDr vjsatesaV eqdfey ogkWa ij u gqvk o pkjksa fgLls cjkcj ugha gSA eq>s izfroknh dks lc ls FkksM+k fgLlk feyrk gS vkSj foNsn tkus okyk vc rd fgLls uk cjkcj gksus ls o nhxj tk;nkn dk Hkh caVokjk djk;k tk;s o gjsd dks viuk fgLlk fnyk;k tkosA Our attention was then drawn to the statement of Defendant No.3. In his statement he admitted his exclusive possession on House Nos. 3 and 4 mentioned in schedule A attached to the plaint and further that he has been realising rent from the tenants occupying these houses since 1952. In his statement he admitted his exclusive possession on House Nos. 3 and 4 mentioned in schedule A attached to the plaint and further that he has been realising rent from the tenants occupying these houses since 1952. The relevant portion of his statement runs as under: esjs dCts esa ---------------------------------------2 esa uksgjk ekdZ ua0 3 o edku ekdZ ua0 4 ij crk;s x;s gSa bldk fdjk;k :0 19 ekfld vkrk Fkk vkSj vc :0 35 ekfld lu~ 1961 ls vkrk gS uksgjs dk fdjk;k :0 35 ekfld igys Fks vc lu~ 1961 ls :i;s 45 ekfld fdjk;k vkrk gSA lu~ 1952 esa dksbZ caVokjk ugh gqvk FkkA dsoy vkSjrksa es >xM+s gksrs Fks lkS jgus dh lgqfy;r ls vyx vyx ,jsUtesUV fd;k FkkA lu~ 1952 esa reke xSj eudwyk tk;nkn dk dksbZ estjesUV ugha fn;k x;k u okLrsUVjh fd;k x;k vkSj u caVokjk fd;k x;k dksbZ fgLls gh ugha gq, lks lc ds cjkcj fgLls dCts esa vkus dk loky gh iSnk ugh gksrk dksbZ caVokjk ugh gqvk tks ftl fgLls esa jgrk Fkk mldk fdjk;k oks gh ysrk Fkk vkSj mudk izcU/k oks gh djrk FkkA esjs dCts okys edku esa nsodqekj oekZ esjh rjQ ls fdjk;s ij jgrk FkkA mlls edku [kkyh djkus dh tks dk;Zokgh dh Fkh nkok djok;k FkkA ml nkosa dk QSlyk bZ0,Dl0ch0A os ml nkos esa esjs c;ku Hkh gq;s Fks mlls ls esjs c;ku ,DtchV@Mh 2 ua0 1 gq, eaSus blesa ,0Vw0ch0 esa ;g Fkk fd ^^gekjs tksbUV Qsehyh esa tc ikVsZ'ku gqvk rc eqnk;ykg fdjk;snkj Fkk eqtuktk edku esjs fgLls eSa tc ikVsZ'ku 1&7&1952 ls bQsDV esa vk;kA Defendant No.3 tried to explain in what circumstances he made statement Ex D2/D 1. He stated that he admitted partition of the joint family property in his statement Ex D2/D1 as he was in need of the house occupied by his tenant Deo Kumar. He further stated that his Vakil advised him to make such admission in case he wanted his suit for eviction to be decreed against his tenant. The learned trial judge has believed the above explanation given by Ram Swaroop. But looking to the circumstances of the case we are of the opinion that the explanation offered by Defendant No.3 to explain his admission contained in his previous statement Ex D2/1 is wholly concocted and after-thought. The fact that joint family House Nos. The learned trial judge has believed the above explanation given by Ram Swaroop. But looking to the circumstances of the case we are of the opinion that the explanation offered by Defendant No.3 to explain his admission contained in his previous statement Ex D2/1 is wholly concocted and after-thought. The fact that joint family House Nos. 1 to 7 were allotted separately to each coparcener in the year 1952 and thereafter each coparcener bed an realising rent exclusively Iron the tenants who occupied the houses allotted to their respective share, leads to an inference that there had been partition of House Nos. 1 to 7 amongst the members of the joint family and that they came into occupation of the house or houses as per terms of the said partition. The real grievance of Defendant No.3 appears to be that the houses allotted to his share are comparatively of less value than the houses allotted to his other brothers Defendant Kishore Singh in his statement has explained this inequality in allotting the houses to Defendant No 3. He has stated that Defendant 3 was allotted property of less value because he was given all the ornaments of their mother. He has further stated that at the time of partition in the year 1952, none of the coparceners objected to the partition of House Nos. 1 to 7. We may mention here that the plaintiffs also came with the case that there had been no partition of the joint family immovable properties, but now they have admitted that there had been partition of House Nos. 1 to 7 in the year 152. That apart. the statement of DW 3 Hira Lal shows that some portion out of Horses Nos. 1 to 7 was let out to him in the month of May or June 1952 and he remained in occupation of the portion upto 1962. He has deposed that for the first two months i.e. May and June 1952 he paid rent to Kashi Ram and thereafter he paid rent of this partition, to Arjun Singh alone. 1 to 7 was let out to him in the month of May or June 1952 and he remained in occupation of the portion upto 1962. He has deposed that for the first two months i.e. May and June 1952 he paid rent to Kashi Ram and thereafter he paid rent of this partition, to Arjun Singh alone. From his statement it appears that since no partition was affected upto June 1952 he paid rent of the house in his occupation to Bashi Ram who was admittedly managing the entire joint family property but from July 1952 he began paying rent exclusively to Arjun Singh as the portion let out to him fell to the share of Arjun Singh. 16. The next important witness in this connection is D2/DW4 Kishan Lal who was let out some portion of House Nos. 1 to 7 long before 1952. He has deposed that he came to know about the partition some 10 or 12 years ago i.e, some time in 1952 as Arjun Singh collected rent of three Kotharies & Ram Swaroop collected rent of Nohara and Kothi let out to him In support of his statement he produced receipts Ex D1/DW 4,(1) Ex D1/DW 2 (2)& Ex D1/DW 4. He has further stated that Ex D1/DW 4C1) is in the handwriting of Ram Swaroop & Ex D 1/ DW 2 (3) is in the handwriting of Arjun Singh & Ex. D1/DW4 (2) is in the handwriting of Ram Rakh Master. A perusal of the receipt Ex D1/DW4/3) shows that Ram Rakh master realised the rent on behalf of Ram Swaroop. Neither Arjun Singh nor Ram Swaroop challenged the genuineness of these receipts. The conduct of Ram Swaroop after July 1952 as evidenced by his own statement as DW 3 and other document referred to above leads to a reasonable inference that there had been a partition of the joint family House Nos. l to 7 in the year 1952. The finding of the court below that no partition had taken place in respect of any of the properties belonging to the joint family in the year 1952 is not correct. We are definitely of the opinion that there had been partition of the joint family House Nos. l to 7 in the year 1952. The finding of the court below that no partition had taken place in respect of any of the properties belonging to the joint family in the year 1952 is not correct. We are definitely of the opinion that there had been partition of the joint family House Nos. 1 to 7 mentioned in Schedule `A' in the year 1951 and it was due to this reason that all the plaintiffs and defendants 1 to 3 occupied separate house or houses allotted to their respective share and began to realise rent from the tenants who were in occupation of the house or houses allotted to their share. We are further of the opinion that there had been no partition in respect of House No. 8 and Shop Nos 9 to 13; the reason being, that House No. 8 and Shops Nos 9 to 13 were under mortgage and in occupation of the mortgagees who are defendant Nos. 4 to 8. In view of our above finding the plaintiffs are not entitled to a decree for partition in respect of House Nos 1 to 7. 17. The plaintiffs are also not entitled to the expense. incurred by them in making additions and alterations in House No. 2 as that house had come to their share at the partition held in July 1952. 18. Mr. Parekh, the learned counsel for the defendant-appellants has challenged the correctness of the finding arrived at by the lower court that the mortgage executed in favour of the mortgagees in the year 1943 did not bind the plaintiffs and defendant Nos. 2 and 3 as the debt was not incurred for legal necessity or for the benefit of the estate. The contention is not without substance. It is true that none of the mortgagees has appeared in the witness box, but the original mortgage-deed has been brought on the record and it is marked as Ex. D1 Defendant No. 1 Anand Prakash and Defendant No 2 Kishor Singh have not denied execution of the mortgage-deed Ex D1 by them. On the contrary both of them have admitted that they had mortgaged House No 8 and Shop Nos. 9 to 13 for Rs. 35,000/- in favour of Defendant Nos. 4 to 8 DW 3 Ramswaroop in his written statement did not specifically deny execution of the mortgage-deed Ex D1 by him. On the contrary both of them have admitted that they had mortgaged House No 8 and Shop Nos. 9 to 13 for Rs. 35,000/- in favour of Defendant Nos. 4 to 8 DW 3 Ramswaroop in his written statement did not specifically deny execution of the mortgage-deed Ex D1 by him. In para No. 6 of the written statement at page 40 of the paper-book he has mentioned as under:- tgka rd e>s ;kn iM+rk gS esjs nLr[kr t:j djok;s Fks exj dc djk;s ;k fdl ij djk;s ;g ;kn ugh&dCtk fy;k Hkh x;k gks rks [kkunku dh tk;t t:jr ;k tk;nkn ds Qk;ns ds fy;s ugh fy;k x;k Fkk vkSj u ,slh lwjr esa eq> ij ;k tk;nkn [kkunku ij mldh dksbZ ikcUnh gks ldrh gSA In his statement as D W 1 he has stated as under; jgu ukek ,Dl Mh 1 ij ,0Vw0ch0 nLr[kr esjs gksuk eq>s MkmV Qqy yxrs gS D;ksafd esa nLr[kr ,slh ugh djrkA From the above discussion, we can safely say that Ramswaroop neither in his written statement nor in his statement on oath specifically denied execution of Ex D 1. In the absence of specific denial of the execution of the mortgage- deed Ex D 1 by Ram Swaroop in his written statement and in his statement on oath, we hold that the question of execution of the mortgage-deed by Defendant No. 3 must be taken to have been admitted by him. 19. It is settled law that an alienating coparcener cannot impeach hi s own alienation. This is based on the principle that a mortgagor cannot derogate from his grant. This principle was followed by a Full Bench of this Court in Gomti v. Rameshwardas, AIR 1971 Raj. 211 . In this view of the matter it does not lie in the mouth of Ram Swaroop to challenge the validity of the mortgage-deed Ex D1 on the ground of want of legal necessity. Similarly Anand Prakash and Kishore Singh are debarred from challenging the validity of the mortgage-deed. So far as the plaintiffs are concerned they can challenge the validity of the mortgage-deed on the ground of want of legal necessity and benefit of the estate. Similarly Anand Prakash and Kishore Singh are debarred from challenging the validity of the mortgage-deed. So far as the plaintiffs are concerned they can challenge the validity of the mortgage-deed on the ground of want of legal necessity and benefit of the estate. The plea put forward by the plaintiffs, in this connection, is that this mortgage debt was incurred for the purpose of repayment of the loss arising out of a contract taken exclusively by Defendant Anand Prakash. We find no substance in the above plea. It is true that the contract was in the name of Anand Prakash and it is also true that the mortgage debt was incurred to repay the loss suffered in the contract. But, simply because the contract was in the name of Anand Prakash it cannot be said that he alone was liable for the loss. The fact and circumstances clearly go to show that the contract though in the name of Anand Prakash was, in fact taken by him on behalf of the joint Hindu Family. In the first place had the loss been incurred personally by Anand Prakash, his other major brothers viz. Kishore Singh and Ram Swaroop would not have signed the mortgage-deed Ex D 1. The very fact that all the major coparceners executed the mortgage-deed shows that the money was borrowed for the sake of joint Hindu family in order to pay of the loss incurred by the joint family. Again, Kishore Singh in his statement on oath has deposed that the entire account of the contract was written in the Bahies of the Joint Hindu family firm viz Har Lal & Sons. It is true that these Bahies have not been produced before the court but we see no ground to disbelieve the oral statement of Kishore Singh in this connection. We may also point out that there is no reliable evidence to show that the joint family accounts books of Har Lal and Sons are or were in existence at the time when the suit was filed. We there fore do not agree with the learned trial Judge that the mortgage deed Ex. D1 was not binding on the plaintiffs and Defendants Nos. 2 and 3. In this view of the matter the finding of the lower court that Defendant Anand Prakash alone is liable for the entire mortgage dent cannot be sustained. We there fore do not agree with the learned trial Judge that the mortgage deed Ex. D1 was not binding on the plaintiffs and Defendants Nos. 2 and 3. In this view of the matter the finding of the lower court that Defendant Anand Prakash alone is liable for the entire mortgage dent cannot be sustained. The trial court, in the circumstances, also committed error in passing a decree against Anand Prakash fer mesne profits in respect of the mortgaged property from the year 1940. It is common ground between the parties that the mortgage-deed Ex D 1 is in the nature of a usufructuary mortgage and the possession of the entire mortgaged property was handed over to the mortgagees on the date of the mortgage-deed i.e. 23-6-43. That being the admitted position, the mortgagees are liable to account for all the rents they had received from the tenants occupying the mortgaged property. It has been urged before us on behalf of the plaintiffs that the defendant Anand Prakash had realised Rs. 100/- per month from one of' the tenants of the mortgaged property. Even so, it is a matter inter se between the mortgagees and the Defendant Anand Prakash. In the present suit, the mortgagees will have to account for the entire rent which was realised or could be realised by them from the tenants occupying the mortgaged property. 20. The question now arises whether the entire mortgage amount has been paid? We need not consider this aspect of the case for the present. It will be proper that a Commissioner be appointed to go into the accounts of the mortgagees & find out what amount is due to the mortgagees or the mortgagors. If on an account it is found that the mortgagees have realised more than what was legitimately due to them in accordance with law or terms of the mortgage-deed, the trial court shall be entitled to pass a decree against the mortgagees at the time of passing the final decree. 21. For the reasons stated above, we allow the appeal in part and while modifying the preliminary decree passed by the trial court we in its place pass the following decree: (1) A preliminary decree for partition is passed in favour of the plaintiff; and against Defendant Nos. 1, 2 and 3 to the effect that the plaintiffs and Defendants Nos. For the reasons stated above, we allow the appeal in part and while modifying the preliminary decree passed by the trial court we in its place pass the following decree: (1) A preliminary decree for partition is passed in favour of the plaintiff; and against Defendant Nos. 1, 2 and 3 to the effect that the plaintiffs and Defendants Nos. 1 to 3 will be entitled to 1/4th share each on partition of that immovable properties, namely, House No. 8 and shop Nos. 9 to 13 mentions d in Schedule 'A' attached to the plaint. (2) The mortgagees shall submit an account of the amount of rent realised by them or which they ought to have realised from the tenants of the mortgaged property. The Commissioner shall make all legitimate deductions which the mortgagees are entitled to under the terms of the mortgage-deed or under the law out of the total amount realised by the mortgagees from the mortgaged property. After making all adjustments the court comes to the conclusion that the mortgage money has been fully repaid and some excess amount has been realised by the mortgagees, the court shall while passing the final decree pass a decree for the excess amount against the mortgagees. (3) The excess amount thus recovered from the mortgagees shall be distributed amongst the plaintiffs and Defendant Nos. 1 to 3 as per their share in the mortgaged property. (4) In case the court comes to the conclusion that the mortgage amount has not yet been paid off, the mortgagees shall keep possession of the mortgaged property till the entire mortgage money is repaid to the mortgagees. (5) A Commissioner shall be pointed by the trial court to effect the partition and also to go into the accounts of the mortgagees. 22. The learned counsel for the mortgagees submits that his clients are prepared to handover the possession of the mortgaged property to the Commissioner forthwith. The Commissioner in that case will take over possession of the mortgaged property and realise the rents from the tenants occupying the mortgaged property and deposit the same in the court. 23. We now take up the cross objection filed on behalf of Defendant No.3. In the cross-objection Defendant No. 3 has challenged the correctness of the finding relating to five shops situated at Udaimandir. 23. We now take up the cross objection filed on behalf of Defendant No.3. In the cross-objection Defendant No. 3 has challenged the correctness of the finding relating to five shops situated at Udaimandir. It is urged that these shops were wrongly held to be not belonging to the joint family. It is common ground between the parties that Ghashiram was insured for Rs. 10,000/. On his death in the year 1934, his widow Mst. Suraj Kanwar recovered the said amount from the insurance company and utilised that amount in purchasing or constructing the said five shops situated at Udaimandir. The connection of Defendant No. 3 is that since the premiums of this insurance policy of Ghasiram were paid out of the joint family funds the five shops purchased or constructed out or in trance money must be held to be belonging to the joint family. There is however no reliable evidence on the record to show that the premiums were paid out of the joint family funds. On the contrary, the entry dated 27.11.32 relating to payment of one premium of the insurance policy of Ghasiram shows that the premium paid by the joint family was not debited to "Kharcha Khata" but was debited to Ghasiram personally. That shows that whatever premiums were paid in respect of the insurance policy of Ghasiram, were paid out of the share of Ghasiram in the joint family. That apart, Mst. Suraj Kanwar received the insurance amount as Ghasi Ram had nominated her to receive the insurance amount after his death. That also shows that the insurance amount received by Mst. Suraj Kanwar exclusively belonged to her. With whatever angle the case is viewed the five shops purchased out of the money received from the insurance company did not belong to the joint family. 24. In our opinion, the learned trial court has come to a right conclusion that these five shops are not part of the joint family property. We, therefore, see no merits in the cross-objection which is hereby rejected. The parties are left to bear their own costs in this Court in the appeal as well as in the cross-objection. 25. The parties are directed to appear before the Additional District Judge, on 27th of October, 1977. We, therefore, see no merits in the cross-objection which is hereby rejected. The parties are left to bear their own costs in this Court in the appeal as well as in the cross-objection. 25. The parties are directed to appear before the Additional District Judge, on 27th of October, 1977. Since the case is an old one, the learned Additional District Judge is directed to dispose of this case as early as possible.Appeal partly allowed. *******