JUDGMENT Chandrasekhara Menon, J. 1. The plaintiff is the appellant in the Second Appeal. The suit was for partition and separate possession of the proper lies which originally belonged to one Vittappa Kamath. Vittappa Kamath executed a registered will on 17th December 1931 bequeathing his properties in Schedule.1 of the will to one Ganapathy Kamath for life and afterwards to the "second schedule people''. Schedule.2 properties were given to defendants 1 to 3 and the children of Mukunda Kamath to be born thereafter. The plaintiff and defendants 1 to 6, the children of Mukunda Kamath, according to the plaintiff, are entitled to share in the properties. I think it is useful to quote paras 4 and 5 of the plaint. "4. As per the terms of the will the properties described in the schedule I to the will are to devolve on the children of Mukunda Kamath i.e., Plaintiff and Defendants if Ganapathy Kamath is to die without male issues and the schedule II properties are to be enjoyed by plaintiff and Defendants absolutely even if Ganapathy Kamath be gets children. 5. The testator Vittappa Kamath is dead and Ganapathy Kamath also died without male issues. Thus the properties mentioned below have come to the plaintiff and Defendants absolutely on the strength of the will and they are in joint possession of the properties." The prayer in the plaint is for partitioning the properties into 7 equal shares and allotment of 1 such share to the plaintiff after making suitable provisions for the family viniyogas. 2. The first defendant in his written statement questioned the maintainability of the suit. According to him the suit properties have devolved upon defendants 1 to 3 who are the only sons in existence at the time of the execution of the will. Plaintiff and defendants 4 to 6 were born after the death of Vittappa Kamath. As such, they, who were not born at the relevant period, do not derive any right or interest in respect of the said properties. He also contended that the 6th defendant does not derive any right in respect of the properties even according to the terms of the will because the will specifically states that the sons of Mukunda Kamath alone would be entitled to the properties. Sixth defendant is a daughter of Mukunda Kamath. 3. He also contended that the 6th defendant does not derive any right in respect of the properties even according to the terms of the will because the will specifically states that the sons of Mukunda Kamath alone would be entitled to the properties. Sixth defendant is a daughter of Mukunda Kamath. 3. The Trial Court in the first instance held that the plaintiff and defendants 4 and 5 besides defendants 1 to 3 will be entitled to get the benefits as per the will but then the court further held that the suit properties were being enjoyed as joint family properties managed by the manager or Kartha of the joint family, the first defendant. On that basis the court held that the plaintiff has title over the suit properties besides defendants 4 and 5 as also defendants 1 to 3. A preliminary decree was passed for partition of the suit property into 6 equal shares, one share to the plaintiff, one share to the first defendant and the remaining 4 shares to be jointly allotted to defendants 2 to 5. The share of the 1st defendant in plaint item No. 7 was to be allotted to the 7th defendant and share of 1st defendant in plaint item No. 8 was to be allotted to the 8th defendant as assignees of the properties from the same defendant. 4. The matter was taken up in Appeal before the subordinate court of Kasargod as A.S. No. 43 of 1970. That court also held that the plaintiff has title over the suit properties as also defendants 1 to 5 each having 1/6th share of the plaint schedule properties. But the Subordinate Judge also held that the learned Munsiff should have framed an issue as to what provisions are to be made in regard to family viniyogas. In the result the court set aside the judgment and decree of the Trial Court and the suit was remanded to the learned Munsiff's court with a direction to frame the additional issue as to what provisions should have to be made in regard to the family viniyogas. The court directed the Munsiff to dispose of the case afresh in accordance with law and the observations made in the judgment. 5. Accordingly the matter was taken back to the Munsiff's Court. The court directed the Munsiff to dispose of the case afresh in accordance with law and the observations made in the judgment. 5. Accordingly the matter was taken back to the Munsiff's Court. There the issue was framed regarding the provisions to be made for the purpose of the family viniyogas. The court went into all the issues and held against the plaintiff as he has failed to prove that he has got title to the suit properties or that he has acquired title by adverse possession and prescription. According to him on the basis of the provision of the will Schedule II properties in Ext. A1 were to devolve on the children of Mukunda Kamath who were in existence at the time of the death of the testator and by reason that Ganapathy Kamath has got no male issues Schedule.1 properties were also to devolve on defendants 1 to 3. Therefore defendants 1 to 3 are the only persons who are owners of the suit property and plaintiff and defendants 4 to 6 have no title to them. In the result a preliminary decree was passed for partitioning the properties into 3 equal shares, one such share to the first defendant, one share to the 2n defendant and the remaining one share to the 3rd defendant. The share of the 1st defendant in item No. 7 was to be allotted to the 7th defendant and the share of the 1st defendant in item. No.8 was to be allotted to the 8th defendant. This decree of the Munsiff has now been confirmed in appeal by the Subordinate Judge in A.S. 43 of 1974. As a result the plaintiff has come up with appeal in this court. 6. It is strongly contended before me by Mr. T. L. Viswanatha Iyer, learned counsel for the appellant that Ext. A1 conferred rights to all the children of Mukunda Kamath the properties to be held by them as ancestral properties. As a result the plaintiff has come up with appeal in this court. 6. It is strongly contended before me by Mr. T. L. Viswanatha Iyer, learned counsel for the appellant that Ext. A1 conferred rights to all the children of Mukunda Kamath the properties to be held by them as ancestral properties. He would contented that even otherwise the bequest was to all the children of Mukunda Kamath and there was no words limiting the devolution to children .The neot relevan t portion of the will is: cording to him in view of the rather 'the throu sons of Mukund a Kammath, s/o my deceased brother Upendre Kammath v iz., Rama Dasa Ram a Dasa Narasimha and Achueha and the male dnildren to be botn to tde sa i d Musenda , hereafter end th ee ongcendants shall enjoy t we p ropes i es in l ist I I from ge ne ration to g eneration on qeeiority ba sis, get the patta transferred and pcy assessment.' i the will Ext. A1. He would alternatively contented that the court below should have held that in any event the properties have been inpressed with joint family character be unequivocal declaration of defedants 1 to 3 and their conduct in enjoing them as family properties. The significants of the recital in Exts.A-2, B-1, B-2 and B-9 and the conduct of defedants 1 to 3 as evidenced by their deeds has not been properly understood. They declaration in this document is sufficient to impress the properties with joint family charactor. He also contents that in the nature of the direction of the Subordinate Judge in the order of remad Courts below should not have opend any other issues apart from the question of viniyoga. 7. I might, at the firat stage deal with the last matter, raised by Mr.Viswantha Iyer. he learned Subordinate Judge in the order of remand did not restrict it to any particular issue. The whole case was left open for decision. The learned Munsiff in his order has referred to the English copy of the Will which have been accepted by both sides. That is a translation produced by the plaintiff and the correctness of which has not been questioned by the other side i would refer to the relevant passages in the Will here. The learned Munsiff in his order has referred to the English copy of the Will which have been accepted by both sides. That is a translation produced by the plaintiff and the correctness of which has not been questioned by the other side i would refer to the relevant passages in the Will here. "Also the prooerties enjoined by me on payment of Mulgani rent out of which leaving the properties and the properties alienated by me the remaing properties and the properties which have likely been left are to be enjoyed by me as I like with absolute right in me, till my death. the properties detailed in List No.1, and which have likely been left off and also properties which I might acquire hereafter would be enjoined by Ganapathy Kamath, son of my deceased brother Manjunatha Kamath on transfer of patta in his name and payment of assessment to Government and also on payment of purappad to Madian Kula Khestrapala Devaswom.........................." The said Ganapathy Kammath has no male issues now and if no sons are born to him till his death the persons in the No.2 list would be absolutely entiled to list No. 1 properties after his death. Here I might point out that Mr. Yajman, learned counsel for the forst defendant pointed out that the word used is The next relevant portion of the will is: 'the three sons of Mukunda Kammath, s/o my deceased brother Upendra Kammath viz., Rama Dasa Rama Dasa Narasimha and Achutha and the male children to be born to the said Mukunda, here after and their descendants shall enjoy the properities in list II from generation to generation on seniority basis, get the patta transferred and pay assessment." 8. It will ee necessary in this connection to took into the statutory provisions a S.111 of the Indian Succe ss ion Act. S.111 reads: "111. Where a bequest is made s imcly to a described cl ass on p ers ons, the chind beque athed shah go on ly to sucv as are a live at th e testators death. It will ee necessary in this connection to took into the statutory provisions a S.111 of the Indian Succe ss ion Act. S.111 reads: "111. Where a bequest is made s imcly to a described cl ass on p ers ons, the chind beque athed shah go on ly to sucv as are a live at th e testators death. Exception.- If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that time go to such of them alive, and to the representatives of any of them who have died since the death of the testator. Illustrations.- (i) A bequeaths 1,000 rupees to 'the children of B without saying when it is to be distributed among them. B had died previous to the date of the will, leaving three children, C, D and E. E died after the date of the will, but before the death of A. C and D survive A. The legacy will belong to C an D to exclusion of the representatines of E. (ii) A lease for years of a house was bequeathed to A for his life, and after his decease to the children of B. At the death of the testator. B had two children living C and D, and he never had any other child. Afterwards, during the lifetime of A, C died, leaving E. his executor. D has survived A. D and E are jointly entitled to so much of the leasehold term as remains unexpired. (iii) A sum of money was bequeathed to A for her life, and after her decease, to the children of B. At the death of the testator, B had two children living, C and D and after that event, two chidren, E and F, were born to B. C and E died in the lifetime of A, C having made a Will. A has died, leaving D and F surviving her. A has died, leaving D and F surviving her. The legacy is to be divided into four equal parts, one of which is to be paid to the executor of C, one to D, one to the administrator of E and one to F. (iv) A bequeaths one-third of his lands to B for his life, and after his decease to the sister of B. At the death of the testator B had two sisters living, C and D, and after that event another sister E was born. C died during the life of B. D and E survived B. One third of A's lands belong to D, E and the representatives of C, in equal shares. (v) A bequeaths 1,000 rupees to B for life and after his death equally among the children of C. Up to the death of B, C had not had any child. The bequest after the death of B is void. (vi) A bequeaths 1,000 rupees to 'all the children born or to be born' of B to be divided among them at the death of C. At the death of the testator, B has two children living, D and E. After the death of the testator, but in the lifetime of C, two other children, F and G, are born to B. After the death of C, another child is born to B. The legacy belongs to D, E, F and G, to the exclusion of the after born child of B. (vii) A bequeaths a fund to the children of B, to be divided among them when the eldest shall attain majority. At the testator's death, B had one child living, named C. He afterwards had two other children, named D and E. E died, but C and D were living when G attained majority. The fund belongs to C, D and the representatives of E, to the exclusion of any child who may be born to B after C's attaining majority." 9. As far as list No. II properties are concerned going by the will alone it might be that only the persons who are alive when the testator died could get it. What would be the devolution as regards list I properties by the Will as such? As far as list No. II properties are concerned going by the will alone it might be that only the persons who are alive when the testator died could get it. What would be the devolution as regards list I properties by the Will as such? Will it go to defendants 1 to 3 who alone were alive when the testator died or will it go also to the other children of Mukunda Kammath who were born subsequent to the testator's death but before the death of Ganapathy Kammath? Mr. Viswanatha Iyer would contend that the intention of the testator as is gathered from the instrument would indicate that he wanted all the children of Mukunda Kammath to enjoy list I and list II properties. However on account of the statutory provisions, the subsequent born sons after the death of the testator may not be entitled to list II properties but as regards list I properties they will go to those sons also who were born before the death of Ganapathy Kammath. Mr. Yajman stressed on the words the Schedule.2 people which according to him would mean those who in law would inherit schedule II properties. How a will has to be considered is Well settled in law. In Rajendra v. Gopal AIR 1930 PC 242 the Privy Council stated: "In England, as also in India, even where a document is executed in vernacular, the fundamental rule of construction is the same. The duty of the Court is to ascertain the intention from the words used in the document. The Court is entitled and bound to bear in mind surrounding circumstances, but the Court does that only to ascertain the real intention of the executant from the words used by him. The surroundings of an Indian, his manners, his outlook proceeding from different religion and social customs, are often different from those of an Englishman. Ordinarily documents executed by an in his own language, particularly without any professional aid, are often expressed in loose and inaccurate language. All these considerations have to be borne in mind, and sometimes by reason of these aforesaid circumstances a more extended or restricted meaning may have to be given to particular words than their exact literal meaning permits, provided always that the context justifies it. In short, the Court is entitled to 'put itself into the testator's armchair'. All these considerations have to be borne in mind, and sometimes by reason of these aforesaid circumstances a more extended or restricted meaning may have to be given to particular words than their exact literal meaning permits, provided always that the context justifies it. In short, the Court is entitled to 'put itself into the testator's armchair'. Once the construction is settled the Court is bound to carry out the intention as expressed and no other." 10. According to me, schedule II people does not mean the persons who as per S.111 of the Succession Act will get schedule II properties. It means those persons described in the Will as are entitled to get schedule II properties viz.., the sons of Mukunda Kammath already born to him and those to be born thereafter. But then by the statutory provisions of S.111, whatever be the intention of the testator, only those born till the death of Ganapathy Kammath will be entitled to get list I properties, while only those who are alive on the death of the testator will get list II properties. Whatever that be on the evidence, according to me, plaintiff and defendants 1 to 5 are entitled to all the properties in lists I and II as they have been impressed with joint family character. No doubt there is no specific pleading in the matter, but the parties proceeded on the basis that the questions arises whether the properties are joint family properties or not. It is certainly true that relief should be founded on pleadings made by the parties. Undoubtedly, if a plea is not specifically made and yet it is covered by an issue by implication and the parties know that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. As the Supreme Court pointed out in Bagwati v. Chandramaul AIR 1966 SC 735 : "It is hardly necessary to emphasise that in a matter of this kind, it is undesirable and inexpedient to lay down any general rule. As the Supreme Court pointed out in Bagwati v. Chandramaul AIR 1966 SC 735 : "It is hardly necessary to emphasise that in a matter of this kind, it is undesirable and inexpedient to lay down any general rule. The importance of the pleadings cannot, of course, be ignored, because it is the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing the issues would be defeated if parties are allowed to travel beyond them and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. But cases may occur in which though a particular plea is not specifically included in the issues, parties might know that in substance the said plea is being tried and might lead evidence about it. It is only in such a case where the court is satisfied that the ground on which reliance is placed by one or the other of the parties, was in substance, at issue between them and that both of them have had opportunity to lead evidence about it at the trial that the formal requirement of pleadings can be relaxed." 11. In Kunju Kesavan v. M. M. Philip 1964 (3) SCR 634 the Supreme Court said:- "The parties went to trial, fully understanding the central fact whether the succession as laid down In the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a material sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated In his replication that the 'suit property was obtained as makkathayam property, by Bhagavathi Valli under the Ezhava Act'. The subject of exemption from Part IV of the Ezhava Act, was properly raised in the Trial Court and was rightly considered by the High Court." (Emphasis Supplied) 12. The question then is whether the properties concerned have become joint family properties? When does a property of a member of a family, his self acquired property becomes joint family property? The law on the matter is more or less well settled. The question then is whether the properties concerned have become joint family properties? When does a property of a member of a family, his self acquired property becomes joint family property? The law on the matter is more or less well settled. In G. Narayana Raju v. Chamaraju AIR 1968 SC 1276 , Ramaswami, J. speaking for the court said that there is a doctrine of Hindu Law that property which was originally self acquired may become joint family property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A man's intention can be discovered only from his words or from his acts and conduct. In K. V. Narayanan v. K. V. Ranganadhan AIR 1976 SC 1715 the Supreme Court again spoke: "Property separate or self acquired of a member of a joint Hindu Family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with intention of abandoning his separate claim therein but the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights. Such an intention cannot be inferred merely from the physical mixing of the property with his joint family property or from the fact that other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilised out of the generosity or kindness to support persons whom the holder is not bound to support or from the failure to maintain separate accounts, for an act of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation. The mere fact that the properties were not separately entered by the coparcener in the account books or that no separate account of the earnings from these properties was maintained by him cannot rob the properties of their character of sell acquired properties. So also the mere fact that some amount out of the joint family" funds was used for discharge of the debts is also of no consequence". 13. In S. L. Chhabda v. C.I.T. 1976 (2) SCR 164 which arose out of an Income tax reference the. Supreme Court has said: "Even is the absence of an antecedent history of jointness, the appellant could constitute a joint Hindu Family with his wife and unmarried daughter. True that the appellant could not constitute a coparcenary with his wife and unmarried daughter but under the Income. Tax Act a Hindu undivided family, not a coparcenary is taxable unit. A Hindu coparcenary is a much narrower body than the joint family." In that case it was held that an item of property became a joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. 14. In B. B. Lal v. R. P. Sinha 1978 (1) SCC 632 the court allowed the plea that the property was one blended together with joint family properties though there was no specific pleading to that effect. Having appreciated the entire facts and circumstances of the case it was held that the property was blended with joint family properties. In Goli Eswariah v. Commissioner of Gift Tax 1970 ITR 675 , Justice Hegde and Justice Shah said: "It must be remembered that a Hindu family is not a creature of a contract. Having appreciated the entire facts and circumstances of the case it was held that the property was blended with joint family properties. In Goli Eswariah v. Commissioner of Gift Tax 1970 ITR 675 , Justice Hegde and Justice Shah said: "It must be remembered that a Hindu family is not a creature of a contract. As observed by this Court in Mallesappa Bandeppa Desai v. Desai Mallappa, the doctrine of throwing into the common stock inevitably postulates that the owner of separate property is a coparcener who has an interest in the coparcenary property. The existence of a coparcenary in absolutely necessary before a coparcener can throw into the common stock his self acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stork with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be separate property and acquires the characteristics of joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property in the common stock is a unilateral act". In Subramania v. Commissioner of Income Tax AIR 1955 Madras 622 a Division Bench of the Madras High Court consisting of Justice Rajagopalan and Justice Rajagopala Ayyangar said that: "Under the Hindu Law, there is no necessity for joint family property to exist in order that there may be a joint family. Where the joint family consists of father and son there is nothing to prevent the father from impressing upon any self acquired property belonging to him the character of joint family property. No formalities are necessary in order to bring this about and the only question is one of intention on the part of the owner of the separate property to abandon his separate rights and invest it with the character of joint family property. Where an inference of this sort is sought to be deduced from the conduct of the parties, there might be room for ambiguity and for difference of opinion. Where an inference of this sort is sought to be deduced from the conduct of the parties, there might be room for ambiguity and for difference of opinion. Where, however, it is the declaration of the owner of the separate property that is the evidence before the Court or the Tribunal, the inference that the character of joint family property is impressed upon the separate property follows, unless the words arc incapable of that construction or if it represents nearly a future intention not yet given effect to". 15. On the basis of these decisions when we look into the evidence in this case, it can reasonably be inferred that defendants 1 to 3 had voluntarily treated the properties devolved on them by the Will as joint family properties. I would in this connection refer to Ext. B1 which is a document executed by the plaintiff and defendants 1 to 3 and sons of D1. This relates to some properties taken in by the plaint in this case. There, the first defendant describes himself as manager and ejman of the family. No doubt, the right is traced to the Will. But it is expressed that the properties belong to the executant as they are joint family properties, Ext. A7 is the plaint filed by the first defendant fur arrears of rent in respect of the plaint schedule items. The first defendant describes himself there as the ejman and manager of the joint family and the suit is filed in that capacity also. 16. Para 3 of Ext. A2 plaint states: "The property described in the schedule below originally belonged in jenmam right to one Vittappa Kamath, The said Vittappa Kamath bequeathed all his properties under a registered Will dated 17th December 1931. Schedule one of the properties annexed to the Will was bequeathed to one Ganappa Kamath son of Manjunatha Kamath elder brother of the testator. Schedule II was bequeathed in favour of the plaintiff and his brothers to be enjoyed by them as joint family.............. " Para. 4 states: "....... Hence by virtue of the clause in the Will referred to above all the properties of Schedule I have devolved upon the plaintiff and his brothers who constitute a joint family of which the plaintiff is the manager being the eldest member thereof". Ext. " Para. 4 states: "....... Hence by virtue of the clause in the Will referred to above all the properties of Schedule I have devolved upon the plaintiff and his brothers who constitute a joint family of which the plaintiff is the manager being the eldest member thereof". Ext. A3 is a document of sale executed by plaintiff, defendants 1 to 3 and children of the first defendant wherein they said that the properties described in the schedule belong to their vliycC[ mric/ vi7„608\ and that as per the Will that had devolved on them. It is also clear from Ext. B2 judgment of the Subordinate Judge of South Kanara in A S.422/1953 in a suit, filed by the first defendant, the plaint proceeds on the basis that the legacy as per the concerned Will has been taken by himself and his two brothers as a joint family. No doubt, there the learned Subordinate Judge said that this contention is untenable for the reason that the father of these persons was not a legatee. But this is clear enough to indicate that defendants 1 to 3 had treated those properties as joint family properties. At this distance of time they cannot go back. They had voluntarily thrown the shares in the properties to the joint family stock. It cannot now be said that it was on a mistaken interpretation of the Will that the first defendant had done so. This long course of conduct cannot be so easily explained away especially when these persons were represented by their lawyers in the suits. 17. I am also of the view that apart from the fact that the proper ties bearing the character of joint family properties the joint family of the plaintiff and defendants 1 to 3 had acquired right over the properties by adverse possession and limitation. I would refer in this connection to the case of Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi Mahapatrulu Garu ILR 24 Madras 387. The facts of the case were as follows: "The plaintiff, respondent, and the defendant appellant, were first cousin, the sons of two brothers, respectively. The brothers were a Hindu family joint in estate. Both brothers deceased before the end of 1858; both left a widow and her minor son. The facts of the case were as follows: "The plaintiff, respondent, and the defendant appellant, were first cousin, the sons of two brothers, respectively. The brothers were a Hindu family joint in estate. Both brothers deceased before the end of 1858; both left a widow and her minor son. The elder brother, Bayana Padhi, was the father of the defendant, Vasudeva Padhi, who attained full age about 1869, The younger brother Gurunatha Padhi was the father of plaintiff, Maguni Devan Bakshi, said to have come of age in the year 1871. It was admitted that the elder brother received a grant of two Inam villages In the Ganjam district, named Rajendrapuram and Eranadurana Chandrapuram, from the Raja of the Chekati taluk. Of these villages, the plaintiff claimed in this suit partition alleging himself to be jointly Interested therein with the appellant as a cosharer in joint family estate. The quest ion argued on this appeal was whether the grant made originally in the sole name of the defendant's father was intended to be held for the joint benefit of the grantee and his brother, as a gift to members of a joint family, or on the other hand, the villages were granted to the defendant to be held for his exclusive benefit and that of his defendants." In India Courts including the High Court had differed on the matter. The first court decided in favour of the defendants while the High Court in appeal reversed that decision. A division Bench of the High Court consisting of Shephard and Subrahmania Ayyar, JJ. had said: "Assuming that the cowle was made in the name of the elder brother, who was at the time joint with the other members of the family, we think that the evidence of the enjoyment of the property is strong to show that the family took, and not the one brother exclusively." In its decision it is pointed out that it was clear that the exclusive possession of the defendant, who was the son of the donee, had been discontinued, in favour of the joint estate, from the year 1858 when the then surviving brother had died. The defendant was, at the death of his father, a minor; and afterwards came of age about the year 1871. Within the period of limitation, the defendant had not sued to establish the right of exclusive ownership. The defendant was, at the death of his father, a minor; and afterwards came of age about the year 1871. Within the period of limitation, the defendant had not sued to establish the right of exclusive ownership. The possession of the joint estate was adverse to his separate title. It followed upon this that the defendant's title, if any, to the two villages, in the character of separate estate, was extinguished. It might be noted that the defendant himself was in possession of the properties. The Privy Council said affirming the High Court's decision in Vasudeva Padhi Khadanga Gum v. Maguni Devan Bakshi Mahapatrulu Garu ILR 24 Madras 387. "Their Lordships, for the purpose of their judgment, will make the assumption which is most favourable to the appellant, and they will assume in his favour that up to the year 1858, the date of the death of the surviving brother, it was treated as, and was separate property of Bayana, to which the appellant was entitled to succeed as his heir. But on that assumptions the appellant was dispossessed, or discontinued his possession of his separate property in favour of the joint estate at least on the death of his uncle in the year 1858; and the case comes within No. 142 in the second schedule; but if that be not so the possession of the joint family was at any rate adverse to his separate estate from the same date; and it thus comes within No. 144. It is immaterial for the present purpose which article it comes under." 18. It is interesting in this connection to look into the case of Abdul Kareem v. Zuleika Bi AIR 1971 Madras 184. There, a Donor executing gift deed of his property in favour of his minor granddaughter, he constituted himself as the minor's guardian. In that case the court held that the donor's possession was the donee's possession and consequently adverse to donor himself. Neither the donor nor his heirs could set up a claim to the property after the expiry of 12 years from the date of the gift even assuming that the gift was invalid. Secretary of State for India v. Krishnamani Gupta ILR (29) Calcutta 518 is another case where the same principle applied. Neither the donor nor his heirs could set up a claim to the property after the expiry of 12 years from the date of the gift even assuming that the gift was invalid. Secretary of State for India v. Krishnamani Gupta ILR (29) Calcutta 518 is another case where the same principle applied. I here, the Court said that if a person holds some land on the basis that he has leased it from the Government he will loose his right as owner by adverse possession and limitation. The judicial committee stated at page 535: "Only one point was raised in the cross appeal of the Mozumdars which may be shortly disposed of. They say that the whole of the disputed land has been found to have been at one time part of the zamindaris, of which (as already mentioned) a permanent settlement was made with them, and they point to the third clause of the Regulation of 1793, by which the Government engage not to raise the assessment on permanently settled lands. They have always paid and continue to pay the full amount of this assessment and it is argued that the exaction by the Government or the jumnos under the ijras in addition to the assessment under the permanent settlement was a breachment of the engagement, and the Government (they say) are estopped from asserting khas proprietary rights in the land. It is difficult to see where the estoppel comes in, and what must be meant is that the zamindars should be deemed to have been in possession of the lands as part of their zamindaris and not under the iraras (which should be treated as a mere usurpation or overcharge), and therefore there is no case of limitation. The grievance felt by the Mozumdars is intelligible enough, but their lordships can only decide the questions between the parties according to law, and it is outside their province to deal with any question of hardship. The question really is, what was the character of the possession of the lands after the grant of the iraras, and whether in the events which have happened they remain or are part of the zamindars in respect of which the permanent assessment is paid heir? The question really is, what was the character of the possession of the lands after the grant of the iraras, and whether in the events which have happened they remain or are part of the zamindars in respect of which the permanent assessment is paid heir? The answer can only be that the Mozumdars elected and agreed to hold the lands not as part of their zamindaris, but as part of the khas mehal of the Government, and to pay the jumnas reserved by the ijaras on that footing. What led to the change of the position of the Mozumdars was the decision of the Collectorate in February 1859 that these lands belonged to the Government as an accretion to their Jajira land. This decision was acquiesced in by the Mozumdars, and case has been proved for relieving them from the legal consequence of their acquiescence." 19. It is well settled that if the possession of a cosharer becomes adverse to the other cosharer as a result of ouster, the mere assertion of his joint title by the dispossessed cosharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his cosharer by reentry upon the properly or by resuming possession in such manner as it was possible to do. It may also check the running of time if the cosharer who is in exclusive possession acknowledges the title of his coowner or discontinues his exclusive possession of the property. On the materials on the record none of these things seems to have been proved in the present case. Similar was the view in Chenabasavana v. Mahabaleswarappa AIR 1954 SC 337 . If a person who may be entitled to hold a property ia his individual right as his own property makes out that he is holding the property as manager of a joint family and that the property belongs to the joint family and if he has managed the property in that manner for more than the statutory period of 12 years, the property acquires the character of joint family property by adverse possession and limitation. 20. Mr. 20. Mr. Ejman during the course of his argument referred to the case of Vrajlal Trikamlal v. C.I.T., 1971 (80) ITR 299 where the Gujarat High Court speaking through Chief Justice Bhagavati as he then was, with Mehta, J. had said: "The Hindu law doctrine of blending of separate property of a member with the joint family property clearly requires that the property which is said to be impressed with the character of joint family property is separate property of a member of the joint family and known it to be his separate property and with full knowledge of that fact he voluntarily throws it into the common stock with the intention of abandoning his separate claim upon it. Vrajlal who was a partner in the assessee firm died without leaving a widow or any children with the result that his brother, Mulchand, inherited the properties left by him as his only heir. On the death of Vrajlal, Mulchand was admitted as a partner in the assessee firm but the credit balance in the account of Vrajlal in the books of accounts of the assessee firm continued to stand in the same name. Every year, the assessee firm credited interest in the account standing in the name of Vrajlal and such interest was shown by Mulchand in his personal assessment and it was taxed as his personal income on the footing that the credit balance in the account of Vrajlal belonged to him as his separate property. The assessee firm also on the same footing treated interest credited in the account of Viajlal as interest paid to Mulchand and it was disallowed as an inadmissible deduction in the assessment of the assessee firm on the ground that it represented interest paid to a partner. This state of affairs continued up to the assessment year 1956-57. For the assessment yeas 1957-58, Mulchand filed a revised return, stating that he had made a mistake in showing interest received in the account of Vrajlal as his personal income and took up the stand that it was income belonging to the joint Hindu family consisting of himself (Mulchand) and his two sons." The Court held that Mulchand, having inherited the credit balance standing in the account of Vrajlal as an heir of his brother, Vrajlal, it came to him as his separate property. There was no evidence to show that he had consciously blended this properly with his joint family property and the Tribunal was, therefore, right in taking the view that the amount of interest credited in the account of Vrajlal belonged to Mulchand as his personal income and it was not allowable as a deduction in assessing the total income of the assessee firm. In this case it was not by mistake that the first defendant had stated earlier that the properties are the joint family properties. In suits he describes himself as the manager of the joint family and the properties involved therein as belonging to the joint family. Even if there was some ambiguity in regard to the exact nature of devolution of the properties as per the will, he considered the properties in both suits as joint family properties. Here, there is a further question that, for the long length of more than 12 years these properties were considered to be joint family properties. 21. In the light of the above discussion, the S.A. has to be allowed. It was submitted that no appear had been filed by defendants 4 and 5 and they need not be given any reliefs. I do not think that these defendants would be disentitled, to reliefs of claiming their shares in the property. Their case has been effectively represented by the appellant himself and they are entitled to reliefs given to the appellant in the light of O.41 R.4 and 33 of the Code of Civil Procedure. In the result, I allow the appeal and direct the lull property be partitioned into 6 equal shares. One such share will be given to plaintiff, one to the Ist defendant and the remaining four shares to defendants 2 to 5. Defendants 7 and 8 will he entitled to equitable rights as against the first defendant in respect of the properties sold to them. Parties will bear their costs in the first two courts. The appellant will get the costs In this court from the contesting defendants.