Judgment Loknath Prasad, J. 1. First Appeal no.628 of 1978 and First Appeal No.630 of 1978 were taken up together as both and arisen from a common judgment dated 29-5-1978 and the decree dated 9-6- 1978 passed in partition suit no.231 of 1972, through which the partition suit of the plaintiffs-respondents was decreed. First Appeal No.628 of 1978 was preferred by Smt. Lahaso Devi and her grandson Sarjug singh whereas First Appeal No.630 of 1978 was instituted by Smt. Ram lagani Devi, wife of Jhalak Singh. 2. The fact in short giving rise to these appeals is that the plaintiff Vidya singh, who died during the pendency of these appeals, instituted partition suit no.231/72 for partition of l/4th share over the entire land in suit described in schedule I of the plaint. According to the plaitniff, one Ram Prasad Singh was common ancestor of the parties and he died leaving behind three sons, namely, Sheo Balak Singh, Ram Balak singh and Ram Jatan Singh and these three brothers were also joint in properties and governed by Mitakshara school of Hindu Law. Sheo Balak singh died issueless in the year 1953 and similarly Ram Balak Singh also died in the year 1957 issueless and both these brothers left sole-surviving brother Ram Jatan Singh, who too died in the year 1972 leaving behind his three sons, namely, Bidya Singh, Jhalak singh and Kamta Singh and also his widow Lahaso Devi, who is defendent no.3. defendant No.4 Sarjug Singh is the son of Jhalak Singh whereas Defendant No.6 Ram Lagni Devi is the wife of Jhalak Singh. defendant No.5. Sheo singh is the son of Kamta Singh. It has also been alleged that actually father of the plaintif Ram Jatan Singh was karta of the family but the entire affairs were being managed by his son Jhalak Singh and after the death of the plaintiffs father, Jhalak Singh became karta of the family but now the plaintiff feels difficulty in joint cultivation hence request for partition was made which was refused hence the suit for carving out l/4th share of the plaintiff in respect of the entire land in suit. 3. 3. Defendant No.6 Ram Lagni devi, who is wife of Jhalak Singh contested the suit by filing separate written statement alleging inter alia that the suit for partition is not maintainable in the present form and is bad for defect of the parties but this defendant had admitted the geneology given by the plaintiff and it is an admitted case that actually Sheo Balak Singh and Ram balak Singh, two other brothers of ram Jatan Singh died in the year 1953 and 1957 in the state of separation from his brothers and the plaintiff. Actually all the three sons of Ram Jatan singh were in service but they did not contribute anything towards the family expenses and they were keeping their earnings themselves which caused annoyance to Ram Jatan Singh and then ram Jatan Singh and his two brothers partitioned the land among themselves and further got his three sons separated and gave them their shares of lands and there was also complete partition between the sons of Ram Jatan Singh in the year 1948 and so there was severance of status against the entire family. 4. It is also the case of this defendant that the land in suit is not joint family properties and some of the properties mentioned in Schedules A, b and C. of the written statement are self-acquired properties and the concerned parties are in possession of these lands and paying usual rent. Schedule A lands of the written statement are self-acquired lands of Lahaso devi, Schedule-B lands are self-acquired lands of Ram Lagni Devi and schedule-C lands are self-acquired lands of Sarjug Singh. In fact three sons of Ram Jatan Singh after partition of the joint ancestral properties, constructed their houses separately and began to live separately and there was no unity of title and possession of these brothers. Sheo Balak and Ram Balak were also separate and as Sheo Balak had no issue, this defendant was looking after his conforts and welfare. In fact three sons of Ram Jatan Singh after partition of the joint ancestral properties, constructed their houses separately and began to live separately and there was no unity of title and possession of these brothers. Sheo Balak and Ram Balak were also separate and as Sheo Balak had no issue, this defendant was looking after his conforts and welfare. So, out of love and affection, he made oral gift in the year 1953 of his 1/3rd share in May, 1953 and from that time this defendant is in exclusive possession of the properties and paying rent regularly to the ex- landlord and to the State of bihar and this defendant became absolute owner in respect of the land gifted by Sheo Balak Singh as described in Schedule-3 of the plaint so far lands described in Schedules A, B and C of the written statement are concerned, they are self-acquired properties of the defendants and they are in exclusive possession of the same and so these lands together with Schedule-3 lands are not available for partition and accordingly it was prayed that the suit be dismissed as against this defendant. 5. Defendant No.1 also contested the suit by filing separate written statement and the case of this defendant is more or less the same as of defendant no.6 as discussed above. Similarly, lahaso Devi (Defendant No.3) also filed separate written statement and contested the suit but her case is also similar to the defendant No.6 as discussed above. Defendant Nos.2 and 5, i. e. Kamta Singh and his son Sheo singh also filed joint separate written statement but these defendants virtually supported the case of the plaintiff as discussed above. 6. The Trial Court framed various issues for determination of the suit and came to the conclusion that the entire lands in suit were joint ancestral properties of the parties and the claim of self-acquisition of some portion of the land in suit by the defendants were disbelieved and thus ordered for carving out separate takhta in respect of the plaintiffs share to the extent of l/4th share and thus ordered for preparation of decree for partition. Being aggrieved by and dissatisfied with the decretal judgment, two separate appeals were preferred by the contesting defendants of the court below and they mainly challenged the findings of the court below on the ground that the court below erred in recording the finding that some portion of the properties as mentioned in Schedules A, B and C of the written statement are not self acquired properties by these defendants and further there was complete partition between the parties and their predecessor earlier and so the suit for partition is not maintainable. 7. Following points arise for consideration in these two appeals : (i) whether the appellants acquired some of the properties in suit described in schedules A, B and C-III of the written statement filed by the original defendant No.6 and as such some of the properties in suit were self-acquired properties of the appellants and these lands were not available for partition? (ii) Whether there was no previous partition by metes and bounds as claimed by the appellants and there was unity of title and possession between the parties and as such the plaintiff- respondent are entitled to claim partition in respect of their l/4th share over the entire lands in suit. 8. Point nos. (i) and (ii) are taken up together for convenience as they are inter-linked to each other. The original plaintiff Bidya Singh, who died during the pendency of the appeal and was substituted by his two daughters, claimed partition in respect of his l/4th share over the entire land in suit as described in Schedule I of the plaint for the reason that he was one of the sons of Ram Jatan Singh, the original owner and there was no partition by metes and bounds in the family. Now it is more or less admitted case of the parties that Ram Prasad Singh was common ancestor, who died leaving behind his three sons, namely, Sheo Balak singh, Ram Balak Singh and Ram jatan Singh. Admittedly, Ram Balak singh and Sheo Balak Singh died in the year 1957 and 1953, respectively without any issue and similarly Ram jatan Singh died in the year 1972 leaving behind his three sons, namely, bidya Singh, who was the plaintiff, jhalak Singh, the original defendant no.1 in the suit and one Kamta Singh, defendant No.2 in the suit and his widow Lahaso Devi, who was original defendant No.3. Jhalak Singh also got a son Sarjug Singh, who is defendant no.4 and defendant No.6 Ram Lagni devi is the wife of Jhalak Singh and defendant No.5 is the son of defendant no.2. After the death of original plaintiff, Bidya Singh, his two daughters prema Devi and Deomati Kuer were substituted as Respondent Nos.6 and 7. During the pendency of the appeal it appears that Lahaso Devi also died on 4-2-1979 and her other sons were already on record and her one of the daughter Radhika, who had neither appeared though she was made co-plaintiff nor contested the appeal and she was transposed as respondent No.8. 9. No doubt, it is the case of the appellants that there was previous partition between three brothers Sheo balak Singh, Ram Balak Singh and ram Jatan Singh as early as in the year 1948 and Ram Jatan Singh also partitioned his lands which was allotted to his share between his three sons-Vidya Singh, Jhalak Singh and Kamta singh, so, a case of previous partition was set up by the appellants. It is also the case of the appellants of both the appeals and that of Jhalak Singh in the court below that Sheo Balak Singh in the year 1953 out of love and affection made an oral gift in respect of his allotted share in favour of Ram Lagni devi, the wife of Jhalak Singh and lahaso Devi, wife of Ram Jatan Singh executed a registered deed of gift in the year 1973 in favour of Sarjug Singh, one of the appellants here. It is also the case of the appellants that Lahaso devi, Ram Lagni Devi and Sarjug singh also acquired some lands from their own income and they remained in exclusive possession of the same as exclusive owner because these lands were their self-acquisition and the lands acquired by them were described in schedules A, B and C of the written statement filed by Defendant Nos.6 and others. The Court below after consideration of the entire oral and documentary evidence recorded the findings that there was no previsou partition in the family of the parties and the story of oral and registered gift and self acquisition by their own funds and income by the appellants were rejected and the suit of the plaitniff-respondent was decreed for the reason that they are entitled to claim partition to the extent of their l/4th share. 10. So far the plaintiffs are concerned, they adduced simply oral evidence to show that there was no partition in the family and the parties were living separately and cultivating some of the lands separately only by way of convenience. On the other hand, on behalf of the appellants, who had contested the suit, evidence was adduced to show that there was partition by metes and bounds as early as in the year 1948 and the lands were mutated separately in the names of different co-sharers. From the judgment of the court below, it can be said that no document of partition was produced on behalf of the appellants, who were contesting defendants in the court below and further from the documents filed on behalf of the appellants, i. e. some of the sale deeds, there was recital that part of the consideration money would be set off towards the amount of ijara deed which were in the name of joint family members and even in Ext. A-II, the so-called registered deed of gift executed in the year 1973 by Lahaso Devi, mother of the plaintiff and some of the defendants there was no recital that there was partition in the family by metes and bounds and thus Lahaso Devi gifted her only l/4th joint share over the ancestral properties. During the course of argument, learned counsel for all the parties frankly submitted that an amicable compromise was arrived at outside the Court and there is overwhelming evidence on the record and in view of the understanding arrived at between the parties, now the appellants are not claiming that there was partition between the parties prior to the institution of the suit and now concede that there was no partition by metes and bounds. So, in view of the submission and agreement between the parties, I am also inclined to come to the conclusion that there was no partition by metes and bounds in the family of the parties and as such the original plaintiff and after his death, his heirs are entitled to seek partition. 11. So far the share of the plaintiffs are concerned, now more or less it is admitted position that the Sheo balak Singh and Ram Balak Singh died in the year 1953 and 1957 without leaving any issue and the family was joint and governed by Mitakshara School of hindu Law. In that contingency the other surviving brother Ram Jatan singh, who died in the year 1972 inherited the entire joint ancestral properties in the suit and after his death his three sons, namely, Bidya singh, Jhalak Singh and Kamta Singh inherited the entire suit properties, i. e. the ancestral properties to the extent of 1/4th share and the remaining 1/4th share will go to the wife Sahaso Devi i. e. original defendant No.3. In that view of the matter, the plaintiffs got 1/4th share over the land in suit and the other branch, i. e. Kamta Singh and his son Sheo Singh, i. e. defendant Nos.2 and 5 are also entitled for l/4th share jointly. Similarly Jhalak Singh and his son Sarjug Singh along with his wife, i. e. branch of Jhalak Singh will get l/4th share and 1/4th share will go to the surviving widow of Ram Jatan singh, i. e. original defendant No.3 lahaso Devi. 12. Now, it is also the case of the appellants that Sheo Balak Singh made an oral gift of his share to Ram Lagni devi Defendant No.6 and wife of jhalak Singh in the year 1953. Similarly ram Lagni Devi acquired about 2.26 acres of land by virtue of some sale deeds and Sarjug Singh also acquired about 85 decimate of lands by two sale deeds, i. e. Ext. B-II and B-II (I ). Similarly, Lahaso Devi also acquired about 44 decimals of land by Ext. B-II (3) and Ext. B-II (4) in the years 1953 and 1955, respectively. B-II and B-II (I ). Similarly, Lahaso Devi also acquired about 44 decimals of land by Ext. B-II (3) and Ext. B-II (4) in the years 1953 and 1955, respectively. The court below rejected the claim of self-acquisition by this appellant on the ground that the alleged partition between the three brothers, i. e. Sheo Balak Singh, Ram balak Singh and Ram Jatan Singh in the year 1948 had not been proved and thus the oral gift of the share of the land of sheo Balak Singh in favour of ram Lagni Devi was disbelieved. Similarly self-acquisition of Ram Lagni devi, Sarjug Singh and Lahaso Devi by some sale deeds in their favour were declared to be the acquisition from the funds of joint family and the court has also recorded a finding that these lands are also subject-matter of the properties in suit and rejectee the claim of self-acquisition for the reason that at the time of purchase, Sarjug Singh was merely a boy and other two ladies had no separate earnings to acquire lands. 13. During the course of arguments, learned counsel for all the parties including that of the appellant Mr. S. K. Mazumdar frankly conceded that now there is an understanding and compromise between the parties and thus, the appellants of both the appeals are not claiming the lands as described in schedules-A, B and C of the written statement of Defendant No.6 as their self-acquired properties by virtue of purchase by registered sale deeds. In that view of the matter and in view of the agreement, I am inclined to hold that the claim of the appellants that some of the lands were acquired by virtue of various sale deeds and these lands are self-acquired are to be rejected as has not been proved and in view of the amicable settlement, and thus, these lands are also available for partition. It is also the claim of the appellant Sarjug Singh that Lahaso Devi was admittedly widow of Ram Jatan singh and so that got l/4th share over the entire land in suit and she gifted her share to the extent of l/4th share over the entire land in suit in favour of this appellant and the deed of gift was duly registered on 19-12-1973, i. e. Ext. A-II. A-II. So, it was contended by the learned counsel for the appellants that as Lahaso Devi was admittedly owner to the extent of l/4th share, so, she is competent to transfer by way of gift in respect of her l/4th share so far ancestral lands are concerned. 14. Admittedly, there was no previous partition by metes and bounds but still the suit was instituted in the year 1972 and one of the branch had claimed partition. In that view of the matter, there was clear intention of the parties for separation and there was separation in status and severance in status so far joint-family properties are concerned, under the circumstance the widow, i. e. Lahaso Devi is competent to transfer her 1/4th share in respect of the undivided interest of the joint ancestral land of the parties in favour of her grandson Sarjug Singh i. e. original defendant No.4 by a registered deed of gift in the year 1973 and this deed of gift is definitely valid in respect of the share to the extent of 1/4th share in the joint ancestral land of the parties belonging to the widow Lahaso Devi. 15. Learned counsel for all the respondents, that means, including the counsel for the plaintifs also frankly conceded during the course of argument that in view of the amicable settlement between the parties outside the court, now these respondents have had no objection regarding deed of gift and sarjug Singh will be entitled to the extent of l/4th share of the joint ancestral land which actually belong to Lahaso devi and other portion of the land of lahaso Devi, which she claimed to be her self-acquisition by sale deeds, will go to common pool for partition. Now in view of the agreement between the parties and also for the reason that a deed of gift in respect of her entire share was executed by Lahaso Devi in favour of Sarjug, Counsel for all the parties agreed that in that view of the matter, after the death of Lahaso Devi, her daughter Radhika will have no claim over any of the properties left by lahaso Devi as it will go to Sarjug singh. 16. 16. So, from the discussions made above and in view of the submissions of the learned counsel for the parties, I hereby come to the conclusion that there was no previous partition by metes and bounds in the family of the parties and the appellants also failed to prove that they acquired some properties as discussed above by various sale deeds and these lands are their self-acquired lands. On the other hand, these lands are also joint ancestral lands of the parties and available for partition. I further come to the conclusion that the alleged story of oral gift in favour of ram Lagni Devi by Sheo Balak Singh has not been proved but this fact is well proved and the parties have also agreed that Lahaso Devi and admittedly l/4th share over the entire ancestral land and she executed a deed of gift after the institution of partition suit in the year 1973, i. e. Ext. A-II in favour of Sarjug singh, defendant No.4 and one of the appellant here and as such Sarjug Singh will get l/4th share over the entire joint ancestral land which Lahaso Devi got. Similarly plaintiff Bidya Singh and after his death his two daughters, namely, prema Devi and Deomatic Kuer jointly will get l/4th share over the entire land in suit. The other Branch, i. e. Kamta singh (Defendant No.2) and his son sheo Singh (Defendant No.5) will jointly get l/4th share over the entire land in suit. Similarly, Jhalak Singh (defendant No.1) along with Ram lagni Devi (Defendant No.6) will get l/4th share jointly over the entire land in suit. Accordingly, both the points are answered in the manner indicated above. 17. So, on careful consideration of the entire evidence on record and in view of the submissions of the parties, I come to the conclusion that there is no merit in First Appeal No.630 of 1978 instituted by Ram Lagni Devi and as such it is dismissed whereas First Appeal No.628 of 1978 is decreed in part but all the parties of both the appeals in view of the peculiar circumstances of the case will bear their own cost. 18. 18. It is further ordered that the plaintiffs, i. e. branch of Bidya Singh are entitled to seek partition in respect of their l/4th share over the entire land in suit and l/4th share will go to Kamta singh and Sheo Singh together, who are defendant Nos.2 and 5 and l/4th share will go to Jhalak Singh defendant no.1 along with Ram Lagni Devi defendant No.6 and the remaining l/4th share, which originally belong to lahaso Devi and deed of gift was executed by her in favour of Sarjug Singh, will go to Sarjug Singh (Defendant No.4)- 19. Let a preliminary decree of partition be accordingly drawn up and subsequently separate takhta be carved out by appointment of pleader Commissioner at the instance of the parties and while carving out takhta, the pleader Commissioner will keep the convenience of the parties and if at all there is any sale in respect of the land in suit, the sold portion of the land may be allotted in favour of the same co-sharer who sold the said land. Order accordingly.