JUDGMENT Chakrabarti, J : This appeal arises out of a suit for eviction and other consequential reliefs filed by the plaintiff respondent. Facts in brief as stated in the plaint are that the plaintiff is the trustee of the suit property wherein the defendant was a licensee originally under the settlor Smt. Krishna Bhabani Saha since April 1978 and after the deed of settlement he because licensee under the plaintiff in respect of one room on the second floor of the premises without any payment. In spite of request by the plaintiff, the defendant denied to vacate the room. The licence was cancelled verbally on 10th November, 1985. Following the same the present suit was filed. 2. In the written statement the defendant appellant apart from denying the contentions of the plaintiff stated facts relating to devolution of the said property at the earlier stages before settlor Krishna Bhabani got the same and it is contended that by virtue of such devolution the defendant has right title in respect of half share of the said property as Krishna Bhabani herself having not more than half share could not settle the entire property in favour of the plaintiff respondent. It is further stated that there is a partition suit pending in the trial Court where all the co-sharers including the parties to the present proceeding are parties and the right title in respect of the disputed property will be decided in the said partition suit itself. 3. Heard Mr. R.N. Mahato, learned Counsel for the appellant and Mr. Jyotirmoy Bhattacharya, learned Counsel for the respondent. 4. On behalf of the appellant strong contention has been made that the defendant appellant cannot be evicted from the suit premises as he is staying there on his own right since he was born. The case of the plaintiff as regards grant of licence either by Krishna Bhabani in the year 1978 or by the plaintiff after settlement was made, cannot be acceptable nor has been accepted by the trial Court and therefore, the impugned decree could not have been passed. The case of the plaintiff as regards grant of licence either by Krishna Bhabani in the year 1978 or by the plaintiff after settlement was made, cannot be acceptable nor has been accepted by the trial Court and therefore, the impugned decree could not have been passed. Concention has also been made that all the members of the family are admittedly residing in the said premises from the beginning and in such circumstances, right, title and interest of Krishna Bhabani and that too there being no proof of Jogendra having any sufficient fund out of which consideration money could be paid, the case of the plaintiff could not be accepted Law in this connection as decided in the cases of (1) State of West Bengal v. Mir Fakir Mahammad reported in AIR 1977 Cal 29 , (2) Ravinder Singh v. Janmeja Singh & Ors. reported in 2000 (8) SCC 191 , (3) Shantilal v. Mukundlal reported in AIR 1980 Cal 381 , (4) T.H. Mustaffa v. M.P. Varghese reported in 1999 (8) SCC 692 , (5) Rajani Kanta Pal v. Jaga Mohan Pal reported in 50 Indian Appeals 173, (6) Srinivas K. Kango v. Narayan Devji Kango reported in AIR 1954 SC 379 and (7) Kunja Behari Rana v. Gourhari Rana reported in AIR 1958 Cal 105 has been relied on by the learned Counsel for the appellant. 5. On behalf of the plaintiff respondent, learned Counsel has contended that the document of title in favour of Jogendra has never been challenged in any appropriate proceeding and is till in force. Further will of Jogendra was probated and that too after citation when admittedly no objection was raised by any of the parties including the present defendant and therefore, devolution of interest in the suit property in favour of Krishna Bhabani cannot be challenged in present manner by the defendant particularly when admittedly Charu Chandra and Kanailal died on January 15, 1972 and April 3, 1978 respectively. The deed of settlement by Krishna Bhabani in favour of the plaintiff has also been proved. Strong contention has been made against the contention of the defendant as regards the disputed property claiming the same to be the joint family property when no case of joint fund and far less of sufficient joint fund for acquiring the disputed property has been made out. Strong contention has been made against the contention of the defendant as regards the disputed property claiming the same to be the joint family property when no case of joint fund and far less of sufficient joint fund for acquiring the disputed property has been made out. Learned Counsel also relied on the admission by the defendants in the two suits in respect of title of Charu Chandra as also of Krishna Bhabani. With regard to case of fraud it has been contended that as there was no pleading no amount of evidence can be looked into in support of such contention and reliance was placed in support of such contention on the judgment in the case of (8) Siddik Mahammad v. Mt. Saran reported in AIR 1930 Privy Council 57. 6. After considering the aforesaid contentions, we find that the plaintiff's title cannot be disputed by the present defendants as documents have been exhibited which show devolution of interest up to plaintiff from the original admitted owner. Documents have been proved showing the title of Jogendra in respect of disputed property. Will left by Jogendra was duly probated and in spite of citation, no objection was ever raised by any of the parties including the defendants. In such circumstances, title of Krishna Bhabani cannot be disputed in respect of disputed property. The document has also been proved to show that Krishna Bhabani created a settlement deed whereby the disputed property has gone to plaintiff. 7. The case of the defendant that the property was a joint family property has been tried to be made out from the fact that all the members of the family were residing in the disputed premises and the defendants were residing in the said premises since their birth. But this fact along will not prove a case of joint family property. As such case was made out by the defendants, it was onus of the defendants to prove that the properties were acquired by joint funds and there was sufficient fund in the joint family whereby such purchase was effected. This onus has not been discharged by the defendants. On the contrary in the evidence, case has been made out stating that the property was purchased with the funds contributed by all the four brothers, Jogendra, Rajendra, Bepin and Surendra. This onus has not been discharged by the defendants. On the contrary in the evidence, case has been made out stating that the property was purchased with the funds contributed by all the four brothers, Jogendra, Rajendra, Bepin and Surendra. But in support of such contention again no proof has been adduced either by any supporting witness or by any documentary evidence. 8. In view of the aforesaid we are of the opinion that uncontroverted document showing title of Jogendra cannot be disbelieved. Therefore, the will of Jogendra duly probated •creating a title in favour of Charu Chandra also cannot be disbelieved. We have noticed that the title of Jogendra has been admitted by the defendants in their cross-examination when it was stated "we claim our right of living in the suit premises as that belonged to elder brother of my father." At the end of cross-examination the said witness stated that" I do not know whether my father had any right to live there." The witness further admitted, though in an indirect manner, the title of Krishna Bhabani when he stated that "Krishna Bhabani had no reason to have special affection for the plaintiff and infact, she disclosed that she would settle the suit property in favour of all of us." 9. With regard to contention that in the plaint, title of the plaintiff has not been pleaded and therefore, title of the plaintiff being not in issue, the decree could not have been passed, we find after the written statement was filed making out a case of title of the defendants in the suit property, parties knew the said dispute and both parties adduced evidence in respect thereof and the question was decided by the judgment of the trial Court and therefore, we find that the defendants were not taken by surprise in respect of such finding as recorded in the judgment of the trial Court. 10. With regard to case of licence in favour of the defendants, as dispute has been raised by the defendants on a contention that they were staying in the said premises along with entire family from their birth and the case of grant of licence by the plaintiff in favour of the defendants has been disbelieved by the Court below we find that keeping in mind the relationship between the parties the only conclusion possible is of permissive possession by implied licence. Mere fact of joint residence of the members of the family, does not create any title of the property in any manner and such possession of the members of the family of the original owner has to be treated as a permissible possession and/or implied licence. 11. The learned Single Judge of this Court in the case of (9) Damodar Narayan Singh v. Sardar Hira Singh reported in 2002(2) CLJ 68 held that son staying in the house of father cannot be a licensee under father for such occupation. In so deciding the learned Judge followed the judgment in the case of (10) Conrad Dias of Bombay v. Jopseph Dias of Bombay reported in AIR 1995 Bombay 210 which in turn relied on the judgment in the case of (11) Hoshang Rustomji Dotiwala v. Rustomji Eruchsha Dotiwala reported in 1988 Mah. R.C.J. 15. 12. We have considered the above law and the contention relying thereon. With regard to the immovable property law recognises the status of a person in possession of such immovable property either as a owner or as a tenant or as licensee or a trespasser. In the present case defendant could not make out a status of owner, tenant or trespasser. The family is governed by Dayabhaga School of Hindu Law, whereunder no right is created in respect of ancestral property on birth automatically. Therefore, the defendant is not entitled to claim any right in respect of the desputed property by reason of his continuous possession in the said property since his birth. The distinction between Mitakshara School of Hindu Law and Dayabhaga Scool of Hindu Law is settled. 13. The only claim of a son in a Dayabhaga family against his father can be of maintenance under the Hindu Adoption and Maintenance Act, 1956 which only recognises right of a minor son. Such right of a minor son is also recognised under Section 24 of the Hindu Marriage Act. 13. The only claim of a son in a Dayabhaga family against his father can be of maintenance under the Hindu Adoption and Maintenance Act, 1956 which only recognises right of a minor son. Such right of a minor son is also recognised under Section 24 of the Hindu Marriage Act. With regard to the right of a son to get maintenance the observations have been made in the case of (12) Bhupatl Nath v. Basanta Kumari reported in 40 CWN 1320, which is set out as follows :– “It has been contended that under the Hindu Law, an adult son is not entitled to maintenance, and our attention has been drawn to a passage referred to in the well-known treatise on Hindu Law by the distinguished Hindu lawyer, Mr. Golap Chandra Sarkar Sastri, which has been revised by his son Mr. Rishindra Nath Sarkar, an Advocate of this Court. At page 684, learned author says this : “In the Bengal school, however, a doubt may be raised as to the right of an adult son and consequently of his wife or widow and daughter. But it should be remembered that the Hindu Law makes provision for the maintenance for even an illegitimate son.” The right to maintenance under the Hindu Law is founded on certain Texts, one of which is that of Manu.” 14. The said Text, if translated, it means as follows :– “It is declared by Manu that the aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds.” 15. The said judgment while interpreting the above Text, observed as follows :– “The qualifying words n regard to the issues of a man are “infant child”. In view of this text of Manu it is difficult to say that an adult son is entitled to any maintenance. As a matter of fact so far back as 1869, the eminent Judge, the late Mr. Justice Dwarkanath Mitter, laid down the following proposition: “We find no authority either in the Hindu Law or in the Jain shasters to support the position that a father is obliged to support a grown up son. It is alleged that the plaintiff was labouring under illness, and he is therefore, entitled in justice and in equity to receive maintenance from his father, notwithstanding that he has arrived at majority. It is alleged that the plaintiff was labouring under illness, and he is therefore, entitled in justice and in equity to receive maintenance from his father, notwithstanding that he has arrived at majority. But illness was never made the ground of the plaintiff's action, and even if it had been, we do not see any reason why a temporary disorder of the stomach should render it obligatory on the defendant to support the plaintiff, when no such obligation exists in law.” The judgment in the case of (13) Prem Chand Peparah v. Hoolas Chand Peparah reported in 12 W.R.(Civil) 494. 16. Law does not recognise any other right of a major son in respect of an immovable property of his father in spite of his possession since birth as no right to property accrues in him. 17. It appears that even in a recent case of (14) Dwarika Nath Chowdhury v. Anil Chowdhury reported in 1999 (1) CLJ 415 another Division Bench considered the position of a major son living in the family and it was held therein as follows :– “It must be appreciated that where the parties are close relatives like mother and son is most such cases it will suffice to establish a case of licence if it appears by taking a common sense view of the conduct of the parties and the attending facts and circumstances including their relationship that one is in permissive occupation with the consent of other, express or tacit.” 18. Therefore, in our opinion, when the law prevailing today does not recognise any right of a major son in respect of an ancestral property in a family governed by Dayabhaga School of Hindu Law, observations made in the case of Damodar Narayan Singh (supra) by a learned Single Judge cannot be held to be a good law particularly when it did not notice the Division Bench judgments above referred to. Moreover, a perusal of the judgment in the case of Conrad Dias of Bombay (supra), we are of the opinion there also law was not decided which could lead to a decision in respect of such rights regarding immovable property. 19. In the said Bombay case the defendant/son's appeal was dismissed affirming the decree passed by Trial Court in father's suit for injunction against the son restraining him from entering or remaining on the suit premises. 19. In the said Bombay case the defendant/son's appeal was dismissed affirming the decree passed by Trial Court in father's suit for injunction against the son restraining him from entering or remaining on the suit premises. The relevant finding therein is as follows :– “The admitted position is that right from his younger days when the defendant was a minor, the defendant was residing in the suit premises as a son of the father and continued to reside as a member of the family and not under any legal right or legal status. In my considered view, the defendant is residing in the suit premises as a son of the plaintiff and a member of the family and it cannot be a licence as defined in Section 52 of the Easements Act. In this connection, I am also fortified by an earlier decision of this Court reported in 1988 Mah. RCJ 15 (Hoshang Rustomji Dotiwala v. Rustomji Eruchsha Dotiwala) where it has been held that a son staying with father is residing there only as a member of the family and he has no independent right to continue to stay in the premises.” 20. Therefore, in our opinion, none of the said Bombay cases settles a law which has been held in the case of Damodar Narayan Singh (supra). 21. The Sanskrit Text relied upon by the learned Single Judge in coming to his conclusion cannot override the statutory provisions and even in the said Hindu Adoption and Maintenance Act, Section 4 thereof gives overiding effect, of the statute itself vis-a-vis the old Hindu Law. 22. In respect of relief to be given to the plaintiff in similar circumstances, we find that the law was decided in this connection holding as follows :– "...................... and so, when the High Court came to the conclusion that the tenancy had not been proved, but the defendant's agreement also had not been established, it clearly followed that the defendant was in possession of the suit premises by leave and licence of the plaintiff." 23. and so, when the High Court came to the conclusion that the tenancy had not been proved, but the defendant's agreement also had not been established, it clearly followed that the defendant was in possession of the suit premises by leave and licence of the plaintiff." 23. This finding was arrived at in the case of Bhagwati v. Chandra Maul reported in AIR 1966 SC 735 , wherein the plaintiff set up a case of tenancy of the defendant which was not accepted as proved and the case made out by the defendant of his stay in the suit premises under an agreement, which also not held to be proved though the plaintiff's right to the suit property has been found proved and the defendant's possession in the suit property was found. Similarly in the case of (16) Bhadreshwar Pandit v. Smt. Pushpa Rani Pandil reported in AIR 1991 Cal. 406 it was held that the title of the plaintiff to the property is proved but the right of the defendant is not proved though he is in possession claiming some kind of title which has not been accepted, the plaintiff's suit is liable to be decreed. This finding was arrived at following the law in the case of Bhagwati(supra) as also the case of (17) Amulya Ratan Mukherjee v. Kalipada Tah reported in AIR 1975 Cal. 200 . 24. With regard to the contention of the appellant as regards fraud, we find that there being no pleading as required in law in respect of a case of fraud, as appears from the written statement, any evidence adduced by the defendant cannot be looked into and therefore, allegation with regard to fraud cannot be decided in the present proceeding. In view of the aforesaid findings, the appeal is dismissed. Sinha, J. : I agree.