P. C. PATHAK, J. ( 1 ) THIS appeal is filed by the plaintiff against the judgment and decree dated 20-3-1978, passed in Civil Suit No. 3-A of 1977, by the Addl. District Judge, Khurai, district Sagar, dismissing her suit for declaration of her title and possession in respect of the suit property detailed in schedules 2, 3, 4, 6, 7 attached to the plaint. ( 2 ) THE relationship between the parties can be better understood by the following genealogy: ( 3 ) THE plaintiffs case is that married wife of Ramchand died about 35 years before filing of the suit. Defendant 1 Smt. Ranibahu was the concubine and through her, Ramchand got a daughter Smt. Komalbai, defendant 2. Raghuvirsingh, Ramesh Kumar and Suresh Kumar, defendants 3, 4 and 5, are Smt. Komalbai's sons through Jwalaprasad, whose elder brother is Mahadeo, defendant 6 and Mahadeo's son Rajkumar is defendant 7. Durgsingh and his three sons formed a joint Hindu family. After the death of Durgsingh and later on Puranchand, the joint family property was succeeded to by Ramchand and his brother Battulal, having 1/2 share each. After the death of Battulal and his widow Smt Indrambahu, the plaintiff became the sole heir to succeed to the 1/2 share of Battulal Similarly, after the death of Ramchand, the plaintiff succeeded to his 1/2 share in the joint property also. Defendant 1 Ranibahu being a concubine of Ramchand and defendant 2, Smt. Komalbai being Ramchand's daughter born through Smt. Ranibahu, have no right to inherit Ramchand's interests in the joint property. The plaintiff therefore, claimed title over entire property left by Ramchand and Battulal detailed in schedules 2 to 7 attached to the plaint. The defendants are, however, in possession of the entire property and they refused to give possession. The plaintiff further pleaded that after Battulal's death, property in schedule 2 was mutated in the name of Ramchand, Battulal's widow Indranibahu and the plaintiff. In collusion with the patwari, Ramchand got his name alone mutated. The defendants are, however, in possession of the entire property and they refused to give possession. The plaintiff further pleaded that after Battulal's death, property in schedule 2 was mutated in the name of Ramchand, Battulal's widow Indranibahu and the plaintiff. In collusion with the patwari, Ramchand got his name alone mutated. From the income of joint property, Ramchand purchased : (i) Property described in schedule 3 attached to the plaint in the names of defendant 1 Rani Bahu and defendant 6 Mahadeo, (ii) Property described in schedule 4 attached to the plaint in the names of Raghuvir defendant 3 and Rajkumar defendant 7, and (iii) Property described in schedule 5 attached to the plaint in the names of Smt. Ramkunwar plaintiff and defendant 2 Smt. Komalbai. Therefore, all these properties also become joint property and the plaintiff claimed her title as stated above. ( 4 ) DEFENDANTS 1, 2 and 6 filed their joint written statement, while a separate written statement was filed by defendants 3, 4, 5 and 7. They submitted that Smt. Indranibahu had become an unchaste woman during the lifetime of ler husband Battulal and after Battulal's death, she remarried another person and thus went out of Battulal's family. Smt. Ranibahu married Ramchand after the death of his first wife according to caste custom 'kari'. Property in schedule 3 was purchased by defendant Smt Ranibahu from her stridhan and no money came either from Mahadeo Prasad or Ramchand. Property in schedule 4 was purchased by Jwala Prasad from his own income in the name of his minor son Raghuvirsingh defendant 3 and nothing was contributed by joint family of Ramchand and Smt. Ramkunwar. Property in schedule 5 was purchased by Smt. Komalbai and her husband. They submitted that they have been in possession of the suit property for more than 12 years preceding the suit. The title, if any, was extinguished and the suit was barred. Property in schedule 5 was purchased by Smt. Komalbai and her husband. They submitted that they have been in possession of the suit property for more than 12 years preceding the suit. The title, if any, was extinguished and the suit was barred. ( 5 ) THE learned trial Court held that - (i) Smt. Indranibahu was not unchaste during lifetime of Battulal but after Battulal's death, she remarried an outside person, (ii) Smt. Ranibahu was not a concubine of Ramchand but was a legally married wife, (iii) except for the property described in schedules 2 and 5, the suit for the property described in rest of the schedules is barred by limitation, (iv) the suit property was not purchased from the joint family property, (v) the property described in schedule 4 was purchased by Jwala Prasad, father of defendant 3 Raghuvirsingh. (vi) the property mentioned in schedule 5 was purchased jointly in the names of Smt. Komalbai and Smt. Ranibahu, and (vii) the property in schedule 3 was not purchased from the stridhan of Ranibahu. The learned trial Court decreed the suit to the extent of half share in respect of the lands described in schedule 5, i. e. , Kh. No. 39, area 3. 59 acres and Kh. No. 225, area 1. 50 acres and directed the defendants to deliver possession of this half share to the plaintiff. The plaintiffs claim for the property described in rest of the schedules was dismissed. ( 6 ) THE learned trial Court held that Smt. Indranibahu was not unchaste during lifetime of her husband Battulal. However, after becoming a widow, she remarried one Gorelal and thereby she was divested of the estate inherited by her from her husband Batlulal. A widow on remarriage forfeited the estate inherited by her from deceased husband was the law prior to the Hindu Succession Act, 1956. See Manabai v. Chandanbai AIR 1954 Nag 284. The question for decision is whether Smt. Indranibahu remarried after the death of her husband Battulal. The plea raised in paras 4 and 21 of the written statement filed by defendants 1, 2 and 6 is that soon after the death of Battulal, Indranibahu kept another husband and she went into a different family. The defendants were required to prove the fact affirmatively. See Jileba v. Parmesra AIR 1950 All 700 . The plea raised in paras 4 and 21 of the written statement filed by defendants 1, 2 and 6 is that soon after the death of Battulal, Indranibahu kept another husband and she went into a different family. The defendants were required to prove the fact affirmatively. See Jileba v. Parmesra AIR 1950 All 700 . It is not necessary to examine the plea of unchastity since it was held not proved by the trial Court. In order to establish forfeiture, the defendants have to prove that Indranibahu remarried another person. There is no plea of 'remarriage' as such. The defendants also did not mention the name of person with whom Indranibahu was alleged to have remarried. On 5-8-1975, the defendants, amongst others, filed an unregistered deed of relinquishment (Ex. D-9) to prove the admission regarding remarriage. This deed was scribed on 'chait Sudi 13, Samvat 2000' and is on a stamp paper of Rs. 2/ -. The endorsement on the reverse shows "s. No. 906 dated 23-11-1942 Mst. Nanni Bahu widow of Battu Kurmi, resident of Sabda, Tah. Khurai through Mst. Harbai". By this document, the widow of Battulal surrendered all her interests in the joint family property to Ramchand, since she had remarried and had gone out of Battulal's family. She declared that her claim of title over moveables and immoveables left by Battulal ceased on and from that date. The trial Court held that this document was executed by Smt. Indranibahu, who had also affixed her thumb impression. The Court below also found that the document is more than 30 years old and, therefore, it has to be treated as 'proved' under S. 90 Evidence Act. We think, the approach of the learned trial Court was not correct. A bare reading of this document reveals that it was executed by one Nannibahu widow of Battulal Kurmi. There is no plea, much less any proof that Nannibahu was the alias name of Indranibahu. Ranibahu (D. W. 1) in para 2 of her deposition, stated that Indranibai was known as Bundabai in her mothers place. The identity between Nannibahu, executant of Exhibit D-9 and Indranibahu is not established. ( 7 ) BEFORE applying S. 90, Evidence Act, it has to be proved that the document came from proper custody. Ranibahu (D. W. 1) in para 2 of her deposition, stated that Indranibai was known as Bundabai in her mothers place. The identity between Nannibahu, executant of Exhibit D-9 and Indranibahu is not established. ( 7 ) BEFORE applying S. 90, Evidence Act, it has to be proved that the document came from proper custody. Mahadeo Prasad (D. W. 7), in para 2 of his deposition stated that he found Exhibit D-9 in the papers of Ramchand. Mahadeo Prasad represents altogether a different family having distant relationship with that of Ramchand. After Ramchand's death, the document ought to be in the legitimate custody of Smt. Ranibahu. Relying upon Charitter Rai v. Kailash Behari AIR 1918 Patna 537 it was urged that even in case of documents more than 30 years old, formal proof should have been tendered, particularly when Jeewandas (D. W. 3) was examined by the defendants. Choudhary Jeewandas of Khurai is an attesting witness of Exhibit D-9. It was for the defendants to put the document to this witness, even if the defendants thought he was different Jeewandas. Ancient documents may be admissible by aid of S. 90, Evidence Act. However, its value, as evidence, depends upon corroboration derived from external and internal circumstances. Kapoorehand v. Lalchand AIR 1975 Raj 178 . Production of the document on previous occasions is one of the external circumstance corroborating the existence of the document. See Kamalnarayan v. R. Kishorelal AIR 1958 Madh Pra 246. Examination of the document does not reveal that Exhibit D-9 was produced before any authority. The appellant also attacked the admissibility on the ground that relinquishment of interest in immoveable property required registration and reliance was placed on V. Tulasamma v. V. Sesha Reddi AIR 1977 SC 1944 . It was also submitted that marking of document would not preclude challenge to its admissibility, since the presumption available under S. 90, Evidence Act, is a question of law and can be raised at any stage. Pandappa v. Shivalingappa AIR 1946 Bom 193. The respondents replied that Exhibit D-9 could be relied upon for collateral purpose viz. , to show how the entire joint family property came into possession of Ramchand. Reliance was placed on Sardar Amar Singh v. Surinder Kaur 1975 MPLJ 633 . We need not go into all these questions since the defendants failed to establish identity of executant Nannibahu with that of Indrani Bahu. , to show how the entire joint family property came into possession of Ramchand. Reliance was placed on Sardar Amar Singh v. Surinder Kaur 1975 MPLJ 633 . We need not go into all these questions since the defendants failed to establish identity of executant Nannibahu with that of Indrani Bahu. The document has not come from proper custody nor its genuineness is corroborated by surrounding circumstances. We, therefore, discard the relinquishment deed (Ex. D-9), for deciding the issue of remarriage. ( 8 ) WE may now examine the oral evidence led by the parties. Ranibahu (D. W. 1) stated that after the death of Battulal, Indranibahu kept Gorelal after performing all ceremonies. In cross-examination, she denied any knowledge about Gorelal's marriage as also his residence. She admitted that she never visited Gorelal's house, nor could she state about names and number of members of his family. Nathuram (D. W. 6) stated that after Battulal's death, Indrani went to Gorelal who kept her. Indrani bore two female children through Gorelal. In cross-examination, he stated that out of the two daughters, one is Ramkunwar who is alive and the other died. Ramkunwar is married to Tulsiram Kumri of Bamori. According to this witness, plaintiff Ramkunwarbai is the daughter of Indranibahu through Gorelal, which is not even the case set up by the defendants. Lastly, the witness added that his statement is hearsay but from whom, he cannot state. Mahadeo Prasad (D. W. 7) also stated that Indranibahu used to live with Gorelal as his wife. According to this witness, three issues were born to her, the first Khemabai and the second a son. Both the issues died. Later on, before the delivery of a third child, Indranibahu herself died. Mahadeo Prasad admitted that Gorelal is alive and is aged about 60 years. The defendants have not explained why they did not examine Gorelal. Indranibahu is dead. A copy of the Birth and Death Register could be produced to show that Indranibahu died as wife of Gorelal. Ramkunwarbai (P. W. 1) stated that her mother Indranibahu till her death lived in the house of Ramchand. Gorelal was working as a grazier under Ramchand. The evidence adduced by the defendants is unreliable. Indranibahu is dead. A copy of the Birth and Death Register could be produced to show that Indranibahu died as wife of Gorelal. Ramkunwarbai (P. W. 1) stated that her mother Indranibahu till her death lived in the house of Ramchand. Gorelal was working as a grazier under Ramchand. The evidence adduced by the defendants is unreliable. The learned trial Court failed to notice that the plaintiff's plea in paras 2 and 4 of the plaint that she is the daughter of Indranibahu born through Battulal was not challenged at all in the written statement. The defendants could not be allowed to introduce altogether a new case that the plaintiff was born to Indranibahu through Gorelal. Disagreeing with the trial Court, we hold that Indranibahu did not remarry Gorelal, after the death of Battulal. ( 9 ) NEXT question for decision is whether the suit lands are the joint family property in which the plaintiff has a share. The plaintiff has classified the suit lands in four schedules (i. e. 2 to 5) attached to the plaint. The trial Court has passed a decree in the plaintiff's favour with regard to the lands in schedule 5. Therefore, we are called upon to examine the question with regard to the suit lands detailed in schedules 2 to 4 only. We would, therefore, deal the question schedulewise. ( 10 ) THE plaintiff pleaded that the lands in schedule 2, after the death of Battulal, were jointly recorded in the names of Ramchand and Smt. Indranibahu in the revenue papers but later on, Ramchand in collusion with patwari, got these lands recorded in his name alone. The reply of the defendants is that Ramchand was the sole owner and, therefore, his name alone has continued in revenue records. The plaintiff filed copies of settlement Jamabandi of 1912-13 (Exs. P-1 and P-2) to prove that the lands were recorded jointly in the names of three brothers, Puranchand, Ramchand and Battulal. The learned trial Court non-suited the plaintiff on the ground that the Khasra numbers of the lands in Exs. P-1 and P-2 do not tally with the Khasra numbers detailed in schedule 2. The learned trial Court overlooked the 're-numbering Parcha' (Ex-P-3) of the consolidation proceedings for the year 1951-52. It appears that during the consolidation proceedings in village Sabdha, new khasra numbers were allotted in place of old numbers. P-1 and P-2 do not tally with the Khasra numbers detailed in schedule 2. The learned trial Court overlooked the 're-numbering Parcha' (Ex-P-3) of the consolidation proceedings for the year 1951-52. It appears that during the consolidation proceedings in village Sabdha, new khasra numbers were allotted in place of old numbers. On a comparison of schedule 2 with numbers assigned to old numbers, in Exhibit P-3, it is clear that the lands in Exhibits P-1 and P-2 are the same lands which stood in the names of the three brothers. The finding of the learned trial Court that the plaintiff failed to prove that the lands described in schedule 2 are the same as in Exs. P-1 and P-2, is obviously a mistake and cannot be sustained. All the lands detailed in schedule 2 were at one time held jointly by the three brothers. The defendants do not say that there was partition at any time of those lands. Hence, the presumption is that after the death of Battulal, the joint family of Ramchand and Smt. Indrani Bahu continued to hold the lands jointly. We have already held above that Smt. Indrani Bahu did not relinquish her rights over joint family property by Ex. D-9. Therefore, the plaintiff became a co-sharer after the death of Smt. Indrani Bahu along with Ramchand. The defendants have filed Kistbandi for the years 1966-67 and 1967-68 (Exs. D-14 and D-15) showing the sole name of Ramchand against the lands detailed in schedule 2. In the absence of plea of partition, we hold that recording of Ramchand's name alone as holder of lands does not affect the rights of the plaintiff. We, therefore, hold that the plaintiff is a co-sharer of the lands in schedule 2 and her interest is 1/2 representing the share of Battulal. ( 11 ) AS regards lands detailed in schedule 3, the plaintiff's plea is that they were purchased by Ramchand from the income of joint family property detailed in schedule 2, in the names of defendants 1 and 6, Smt. Ranibahu and Mahadeo Prasad. The defendants have denied the allegations. According to them, the lands of schedule 3 were purchased by Smt. Ranibahu from her Stridhan and she is the absolute owner thereof. They also submitted that no part of consideration was paid by Ramchand or Mahadeo Prasad. The defendants filed sale deed dated 6-6-1956 (Ex. The defendants have denied the allegations. According to them, the lands of schedule 3 were purchased by Smt. Ranibahu from her Stridhan and she is the absolute owner thereof. They also submitted that no part of consideration was paid by Ramchand or Mahadeo Prasad. The defendants filed sale deed dated 6-6-1956 (Ex. D-2) showing purchase of 22. 77 acres in the names of Smt. Ranibahu and Mahadeo Prasad for a consideration of Rs. 3,700/- and another correction deed dated 2-2-1957 (Ex. D-3), whereby Kh. No. 337 was corrected as Kh. No. 237. Accordingly, in the revenue papers filed by the defendants, these lands stand in the names of Mahadeo Prasad and Smt. Ranibahu. ( 12 ) ALTHOUGH it is true that there is no presumption that a joint family possesses joint property and a member of joint family cannot possess separate property in his own name, see K. Obul Reddy v. B. Venkata Narayana Reddy AIR 1984 SC 1171 , it is also well settled that once it is admitted or proved that a family is joint and possesses some joint property called nucleus, the presumption of law is that all property held by or in the hands of any individual member or members is joint family property. This being the presumption, if any member of the family claims any portion of the property as his separate property, the burden lies upon him to show that it was his separate property. See Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh AIR 1969 SC 1076 . ( 13 ) WE have held that the joint family of Ramchand and Smt. Indranibahu held 41. 45 acres of joint property lands detailed in schedule 2. After the death of Battulal, Ramchand was managing the entire property. The yield from the lands described in schedule 2, accumulated year to year must be sufficient from which Ramchand could have purchased the property detailed in schedule 3. The plaintiff has succeeded in showing substantial uncleus in the hands of Ramchand who was manager of the joint family, so as to raise the legal presumption. If Smt. Ranibahu claimed the property described in schedule 3 as her separate property, the burden lay on her to show that it was her separate property. See Sher Mohd. Khan v. Ramratan AIR 1938 Nag 87 and Narayanswami Iyer v. Ramkrishna Iyer AIR 1965 SC 289 . If Smt. Ranibahu claimed the property described in schedule 3 as her separate property, the burden lay on her to show that it was her separate property. See Sher Mohd. Khan v. Ramratan AIR 1938 Nag 87 and Narayanswami Iyer v. Ramkrishna Iyer AIR 1965 SC 289 . Unless the source of money is sufficiently explained, the newly acquired property would be presumed to be joint family property. See Jayaramchandra v. Tulasi Ammal AIR 1978 Mad 95 . Ranibahu (D. W. 1) has nowhere said in her statement that she purchased the lands detailed in schedule 3 from her stridhan. Mahadeo Prasad (D. W. 7) stated that he paid the consideration of sale deed (Ex. D-2 ). This is contrary to their defence case. We, therefore, hold that the defendants failed to establish that the property described in schedule 3 is Ranibahu's separate property purchased from her stridhan. ( 14 ) WE take up now the property described in schedule 4, namely, 27. 22 acres of land covered by the sale deed dated 7-8-1961 (Ex. D-5 ). By this sale deed, besides 27. 22 acres of lands, portion of Kh. No. 51, area 1. 80 acres (included in schedule 2) and a house were purchased for Rs. 18,000/- in the names of defendant 3 Raghubirsingh and defendant 7 Rajkumar. The plaintiffs case is that Ramchand purchased this property also from joint family funds in the names of minors Raghubirsingh, daughter's son and Rajkumar, son of defendant 6, Mahadeo Prasad. The reply of the defendants is that Jwala Prasad purchased the property described in shedule 4 from his own funds in the name of his minor son Raghubirsingh who is the absolute owner thereof. Mahadeo Prasad (D. W. 7) admitted that Jwala Prasad, his brother, is alive but has not been examined. Contrary to the plea in the written statement, Mahadeo Prasad stated that he purchased the lands through sale deed (Ex. D-5) in the names of Raghubirsingh and Rajkumar. We have seen above that by the sale deed (Ex. D-2), the property described in schedule 3 was purchased jointly in the names of defendants Mahadeo Prasad and Smt. Ranibahu. These defendants, through their common written statement, stated that Ranibahu purchased the property from her stridhan and she is the absolute owner. D-5) in the names of Raghubirsingh and Rajkumar. We have seen above that by the sale deed (Ex. D-2), the property described in schedule 3 was purchased jointly in the names of defendants Mahadeo Prasad and Smt. Ranibahu. These defendants, through their common written statement, stated that Ranibahu purchased the property from her stridhan and she is the absolute owner. We have rejected this defence and held that Ramchand purchased in the names of Smt. Ranibahu and Mahadeo Prasad from the nucleus i. e. , joint family property. Transaction covered by the sale deed (Ex. D-5) is another instance of Ramchand purchasing property in the names of Raghubirsingh, his daughter Smt. Komal's son and Rajkumar, minor son of Mahadeo Prasad. For the reasons as detailed in respect of the property described in schedule 3, we hold that schedule 4 property is also the joint family property in the hands of the defendants. ( 15 ) ON behalf of the respondents, it was urged that the transactions evidenced by the sale deeds (Exs. D-2 and D-5) are benami transactions, that is to say real purchaser of the lands covered by these two sale deeds was Ramchand and that Mahadeo Prasad and Smt. Ranibahu are benami in respect of the sale deed (Ex. D-2) and Raghubirsingh and Rajkumar are benami in respect of sale deed (Ex. D-5 ). It was, therefore, submitted that the burden was on the plaintiff to prove the transaction as benami. Reliance was placed on Sachhidanand v. Govindlalji 1982 MPLJ 129 and Bhimsingh v. Kansingh AIR 1980 SC 727 . It is true that the Court will presume an ostensible title to be the real title unless the plaintiff who weeks to assert the contrary, pleads and prove that ostensible owner is not the real owner. It is also true that the essence of benami is the intention of the parties. Such intention may be shrouded in a thick veil which cannot be easily pierced through. Nevertheless the person alleging so has to prove either by legal evidence or unerring circumstances the fact of benami. Krishnanand v. State of M P, AIR 1977 SC 796 . It is well known that benami transactions are motivated by design to achieve an unlawful purpose. Due to lapse of time direct evidence of benami is usually wanting. Nevertheless the person alleging so has to prove either by legal evidence or unerring circumstances the fact of benami. Krishnanand v. State of M P, AIR 1977 SC 796 . It is well known that benami transactions are motivated by design to achieve an unlawful purpose. Due to lapse of time direct evidence of benami is usually wanting. Therefore, the reasonable probabilities, legal inference arising from admitted and proved facts, surrounding circumstances, position of parties, their relation, the motive, subsequent conduct, dealing and enjoyment of property have to be taken into account. See : Union of India v. Moksh Buildings and Financiers AIR 1977 SC 409 . ( 16 ) THE learned trial Court held that the defendants are real purchasers under the two sale deeds (Exs. D-2 and D-5) by placing reliance on the testimony of Mahadeo Prasad (D. W. 7) and in the context of that finding recorded by it that the lands detailed in schedule 2 are not proved to be joint family property. However, our conclusions are that all the lands (41. 45 acres) in schedule 2 are joint family property in which the plaintiff has a 1/2 share. We have concluded that the income from these lands accumulated from year to year was sufficient for purchase of other property. ( 17 ) THE question is whether Ramchand had really purchased the lands covered by the sale deeds (Exs. D-2 and D-5) and detailed in schedules 3 and 4 of the plaint. The defendants have filed a registered will dated 13-2-1970 (Ex-D-1) to substantiate their plea that all the lands described in schedule 2 of the plaint were willed away by Ramchand in favour of defendants 3 to 5, minor sons of his daughter, Smt. Komalbai (defendant 2 ). Ramchand had no other issue except a daughter, Smt. Komalbai. We will examine the legality of the will (Ex. D-l) and its effect on the plaintiffs claim at a later stage. For the present we refer to this document only to show that Ramchand intended his daughter, Smt. Komalbai and her sons to take over all that was under his management after his death since he had no son. In order to achieve this, Ramchand, to start with, manipulated to get his name, to the exclusion of the plaintiff's name, recorded in the revenue papers so far as the lands in schedule 2 are concerned. In order to achieve this, Ramchand, to start with, manipulated to get his name, to the exclusion of the plaintiff's name, recorded in the revenue papers so far as the lands in schedule 2 are concerned. These lands have now been bequeathed to defendants 3 to 5 by the will (Ex. D-1 ). ( 18 ) EXHIBIT D-2, sale deed dated 6-6-1956, is in favour of Mahadeo Prasad (defendant No. 6) and Smt. Ranibahu (defendant 1 ). Despite the fact that both these defendants are ostensible owners, the defendants themselves pleaded in their written statement that defendant 1 Smt. Ranibahu is the sole-owner of the lands purchased through sale deed, Ex. D-2. The defendant also pleaded that the consideration of this sale deed was paid by defendant 1, Ranibahu from her Stridhan. ( 19 ) THE plaintiff examined Lachhu (P. W. 3) to say that the lands covered by the sale deeds (Exs. D-2 and D-5) were purchased by Ramchand. As against this, the defendants did not substantiate their own plea in the written statement. Smt. Ranibahu (D. W. 1) did not utter a word in support of her defence plea that she purchased the lands through the sale deed (Ex. D-2) from her stridhan Mahadeo Prasad (D. W. 7) gave a complete go-by to the plea in the written statement and stated that the consideration of sale deed, Ex. D-2, was paid by him. As regards the sale deed (Ex-D5), in favour of defendants Raghubirsingh and Rajkumar, the plea in the written statement is that Jwala Prasad (husband of Komalbai) purchased the lands. Surprisingly, Jwalaprasad, though alive, was not examined by the defendants. Mahadeo Prasad (D. W. 7), contrary to the plea in the written statement stated that the consideration of sale deed (Ex. D5) was paid by him. Thus, the presumption of obstensible title resting in the real purchasers is rebutted by the defendants firstly, by their own plea in the written statement and secondly, by addusing evidence at variance with the plea. The defendants also did not examine material witness Jawalprasad, to prove the plea in defence. We have, therefore, no option but to hold that the real purchaser of the lands in both the sale deeds (Exs. D-2 and D-5) was Ramchand and the source of consideration for both the sale deeds was the income from the joint family lands detailed in schedule 2. We have, therefore, no option but to hold that the real purchaser of the lands in both the sale deeds (Exs. D-2 and D-5) was Ramchand and the source of consideration for both the sale deeds was the income from the joint family lands detailed in schedule 2. ( 20 ) WE have the evidence of Lachhu (P. W. 3) who stated that the lands purchased through the sale deeds (Exs. D-2 and D-5) were cultivated by Ramchand till his death. It was only thereafter that the lands are being cultivated by Mahadeo Prasad (D. W. 7) and his brother Jwalaprasad. The defendants have not filed any revenue papers to demonstrate their possession over the lands covered by the sale deeds (Exs. D-2 and D-5) from the dates of purchases till the date of suit. We, therefore, hold that Ramchand remained in possession of these lands till his death. Considering the circumstances of the present case, we hold that Ramchand, with a design to deprive the plaintiff of her legitimate share, purchased the lands through the sale deeds (Exs. D-2 and D-5) benami in the names of defendants 1,6,3 and 7 with the connivance of all the defendants who are going to be the beneficiaries. Thus, on scrutiny of the case, even in the light of arguments of the respondents' counsel, we find that the plaintiff has successfully proved her claim in respect of the lands detailed in schedules 3 and 4 also. ( 21 ) WE have next to examine whether the execution of the will (Ex. D-1) by Ramchand has any effect on the rights of the plaintiff. The will is dated 13-2-1970, that is to say, after the commencement of the Hindu Succession Act, 1956. By S. 30 of the said Act, a right is now conferred upon a Hindu governed by Mitakshara law to dispose of his undivided interest in the joint family property by will or other testamentary document. Ramchand died on 11-3-1970. The will became operative only thereafter. This document, even if taken to be proved, will be valid to the extent of the undivided interest of Ramchand alone. The interest of plaintiff Smt. Ramkunwarbai could not be bequeathed and to that extent the will (Ex. D-1) is not binding on the plaintiff. ( 22 ) THE only surviving question is whether the plaintiff's suit is barred by limitation. The interest of plaintiff Smt. Ramkunwarbai could not be bequeathed and to that extent the will (Ex. D-1) is not binding on the plaintiff. ( 22 ) THE only surviving question is whether the plaintiff's suit is barred by limitation. On going through the plaint allegations, we find that the claim of the plaintiff is based on title by succession. Such a case is governed by Art. 65, Limitation Act, 1963. There is no plea of ouster of the plaintiff from possession. The plaintiff has been found to be a co-sharer along with Ramchand in respect of the suit lands. The law regarding adverse possession against a co-sharer is well settled. It is laid down in Karbalal Begum v. Mohd. Sayeed AIR 1981 SC 77 that a co-sharer in possession of the property would become constructive trustee on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee. Therefore, disagreeing with the learned trial Court, we hold that the plaintiff's suit is not barred by limitation. ( 23 ) NO other point was pressed by the learned counsel for the appellant. ( 24 ) IN view of the foregoing discussions, we allow the appeal partly and set aside the findings, judgment and decree of the trial Court in respect of the suit lands detailed in schedules 2, 3 and 4 attached to the plaint. The plaintiff is declared to be the owner to the extent of a half share in respect of the suit lands detailed in schedules 2, 3 and 4, besides the lands described in schedule 5 (already decreed by the trial Court ). A preliminary decree for partition in respect of the lands detailed in schedules 2, 3 and 4 in addition to the lands detailed in schedule 5 be drawn up. The plaintiff shall be entitled to possession of her half share in the final decree proceedings. Rest of the claim dismissed by the trial Court is affirmed. The plaintiff shall get costs in proportion to her success throughout. Counsel's fees as per schedule, if certified. Appeal partly allowed. .