JUDGMENT V. Nath, J.–– Aggrieved by the judgment and decree dated 22.11.1975 passed in T.S.No. 98/1971 by the Sub Judge, Biharsharif, the plaintiff has filed this appeal. 2. The admitted facts are that the common ancestor of the parties namely Nihal Mahto had three sons Preman Mahto, Bheda Mahto and Dilchand Mahto. The plaintiff as well as the defendants belong to the branch of Preman Mahto. There had been partition in the branches of three brothers in which branch of Preman Mahto was allotted 1/3rd share in the properties of Nihal Mahto. The said 1/3rd share allotted to Preman Mahto is the subject matter of the dispute in the T.S.No. 98/1971 filed by the plaintiff for partition which has been dismissed by the impugned judgment and decree. 3. The plaintiff has stated that Preman Mahto had three sons namely Rameshwar Mahto, Baldev Mahto, and Keso Mahto. The plaintiff has claimed herself to be the widow of Rameshwar Mahto. Keso Mahto is defendant no.1 and defendant nos. 2 and 3 are sons of Keso Mahto. The two sons of Baldeo Mahto namely Brijnandan Matho and Surendra Mahto have been impleaded as defendant no.4 and defendant no.5 in the suit. 4. It is the case of the plaintiff that Rameshwar Mahto died in the year 1938 leaving behind the plaintiff as his widow and also two daughters, although they are not parties in the suit. It is her case that Rameshwar Matho died in jointness with his father and two brothers and thereafter his father Preman Mahto also died in jointness with his two sons as well as two brothers Behda Mahto and Dilchand Mahto. Later on in partition, the branch of Preman Mahto had been allotted 1/3rd share and the plaintiff alongwith defendants has been coming in joint possession over the said 1/3rd share. On these basic facts the plaintiff has claimed partition of her 1/3rd share in the suit properties. 5. The defendant no.1 to 3 filed their written statement accepting that there has been no partition among the descendants of Preman Mahto. It has been stated by them that Rameshwar Mahto died in the year 1938 during the lifetime of his father. These defendants have further accepted that although there has been no partition of the suit properties in between the descendants of Preman Matho but separation in mess has taken place among them long back. 6. It has been stated by them that Rameshwar Mahto died in the year 1938 during the lifetime of his father. These defendants have further accepted that although there has been no partition of the suit properties in between the descendants of Preman Matho but separation in mess has taken place among them long back. 6. The defendant no. 4 and 5 filed their separate written statement contesting the case of the plaintiff. It is the case of these defendants that Rameshwar Mahto died in the year 1932 in the lifetime of his father and after his death, his share in the joint family properties devolved by survivorship upon the surviving members. It has been further stated that the plaintiff was only a maintenance holder and she never became entitled to the 1/3rd share of her husband in the suit properties and she never came in possession over the same. It is further case of these defendants that in the year 1963 there had been partition by metes and bounds among the two sons of Preman Mahto namely Baldeo Mahto and Kesho Mahto in which the properties mentioned in Schedule I of the written statement has been allotted to the share of defendant no. 4 and 5 and the properties mentioned in Schedule II has been allotted to the share of defendant nos. 1 to 3. It is also the case of these defendants that in the said partition of the year 1963, it was decided that Most. Sukri widow of Late Preman Mahto would get maintenance from defendant nos. 4 and 5 and the plaintiff would get maintenance from defendant nos. 1 to 3. These defendants thus have denied the entitlement of the plaintiff to a share in the suit property as widow of Late Rameshwar Matho and further denied the existence of unity of title and jointness of possession between the parties over the suit properties. 7. In view of the pleadings of the parties, the learned court below framed altogether ten issues out of which issue no.5 and issue no.7 were material issues which are as follows:- Issue No.5:- Had Rameshwar Mahto died in 1938? Issue No.7:- Was there partition of family properties in 1963 between defendant nos. 1 to 3 on one hand and defendant nos. 4 and 5 on the other as alleged by defendant nos. 4 and 5? 8. Issue No.7:- Was there partition of family properties in 1963 between defendant nos. 1 to 3 on one hand and defendant nos. 4 and 5 on the other as alleged by defendant nos. 4 and 5? 8. After hearing the parties and considering the evidence led by them, the learned court below has decided the issue no.5 against the plaintiff and has come to the finding that Rameshwar Mahto died before 1932. While deciding issue no.7 the learned court below however, has come to the conclusion that defendant nos. 4 and 5 have failed to establish their case of partition of the suit properties in the year 1963. Thus deciding the issue no.5 against the plaintiff, the learned court below has dismissed the suit by the impugned judgment and decree. 9. A cross objection has also been filed on behalf of the defendant nos. 4 and 5 in this appeal assailing the finding of the learned court below that there had been no previous partition in the year 1963 as claimed by them. 10. Mr. Sidheshwari Prasad Singh, the learned senior counsel appearing for the plaintiff-appellant, has submitted that the learned court below has recorded its findings ignoring and mis-appreciating the material evidence on record. It has been urged that the learned court below has mainly placed reliance upon the Ext. E and E/1 to hold that Rameshwar Mahto died before the year 1932 even when there was no material in these exhibits justifying such inference. Learned senior counsel has further contended that the learned court below has also attached much importance to the time and year mentioned by the witnesses of the plaintiffs in their deposition regarding the different happenings but has ignored the fact that all those witnesses including the plaintiff are illiterate persons and the statements made by them in their deposition should not have been approached expecting mathematical accuracy. Placing the depositions of the witnesses in detail, it has been contended that there was nothing in their deposition to suggest that Rameshwar Mahto died before 1932. Much emphasis has been placed by the learned senior counsel on the written statement filed by the defendant nos. 1 to 3 wherein they have stated that Rameshwar Mahto died in the year 1938. It has been contended that this statement made by the defendant nos. Much emphasis has been placed by the learned senior counsel on the written statement filed by the defendant nos. 1 to 3 wherein they have stated that Rameshwar Mahto died in the year 1938. It has been contended that this statement made by the defendant nos. 1 to 3 is against their interest and as such it should not have been lightly brushed aside particularly when the defendant no.1 in his deposition has also supported those facts. The learned senior counsel has also placed an order dated 7th July, 1997 passed by the Apex Court in Civil Appeal No. 4368/97 and submitted that the said appeal was filed by the appellant Most Sahodri claiming grant of compensation in a rent acquisition proceeding and after finding title in favour of the appellant the apex court disposed of the said appeal with direction to deliver possession of 9 decimal of land in Plot No.934 to the appellant in lieu of the compensation to be paid for the land acquired in plot no.935. On the basis of these submissions the learned senior counsel has prayed to allow this appeal and set aside the impugned judgment and decree. 11. Mr. Bhagat, the learned counsel appearing on behalf of the contesting respondent nos. 4 and 5, has submitted that the learned court below has committed no error in scrutinizing the evidence of the parties and thereafter coming to the finding that Rameshwar Mahto died before 1932. It has been canvassed that the plaintiff has deliberately come out with a false case of the death of Rameshwar Mahto in the year 1938 in collusion with the defendant no.1 only to gain advantage of the Hindu Women’s Right to Property Act, 1937 even when her own deposition establishes the death of her husband Rameshwar Matho before 1937. It has been contended that the deposition of the brother of the plaintiff examined as P.W.4 also corroborates the fact that Rameshwar Matho died prior to 1937. The learned counsel has further contended that the plaintiff is entitled to only maintenance and not to a share in the suit properties, and in the partition in the year 1963, it has already been agreed that the defendant nos. 1 to 3 would grant maintenance to the plaintiff. Pressing the cross objection by the respondent nos. The learned counsel has further contended that the plaintiff is entitled to only maintenance and not to a share in the suit properties, and in the partition in the year 1963, it has already been agreed that the defendant nos. 1 to 3 would grant maintenance to the plaintiff. Pressing the cross objection by the respondent nos. 4 and 5, the learned counsel has submitted that there is ample evidence on record to establish the partition in the year 1963 but the learned court below has wrongly discarded those evidence and has decided the said issue against the respondent nos. 4 and 5. 12. Mr. Rajendra Prasad, the learned senior counsel appearing for the respondent no.1 to 3, has supported the case of the plaintiff-appellant and has further submitted that the perusal of the deposition of the plaintiff shows that the other view is also possible regarding the death of Rameshwar Mahto to have taken place in the year 1937 or 1938, and as no reason has been assigned by the learned court below for not adopting this view, the finding that Rameshwar Matho died before 1932 becomes vulnerable. It has been urged that the other view that Rameshwar Mahto died in the year 1937-38 is more inconsonance with other evidence on record and should have been accepted. 13. In view of the rival contentions of the parties, the following issues arise for consideration in this appeal:- (i) Whether Rameshwar Mahto died in the year 1938 as claimed by the plaintiff? (ii) Whether there had been partition by metes and bound with regard to the family properties in the year 1963, as claimed by the defendant no.4 & 5, wherein the plaintiff has been allowed maintenance by the defendant nos. 1 to 3? 14. Point No.I:- There is no dispute that Rameshwar Matho died in jointness with his father Preman Mahto and two brothers Baldev Mahto and Kesho Mahto, leaving behind the plaintiff as his widow. The date or the year of the death of Rameshwar Mahto has become the seminal issue between the parties in view of Section 3 of the Hindu Women’s Rights to Property Act 1937 which came into force on 14th April, 1937. The date or the year of the death of Rameshwar Mahto has become the seminal issue between the parties in view of Section 3 of the Hindu Women’s Rights to Property Act 1937 which came into force on 14th April, 1937. By this provision the widow of a Hindu having at the time of his death an interest in a Hindu Joint Family property has been given the same interest as her husband had in the said property. Although by this Act, the widow had been given a limited interest known as a Hindu women’s estate but in view of the provision of the subsequent legislation in the year 1956 by way of Hindu Succession Act, whereby the said limited interest has ripened into absolute interest this issue has assumed significance. The plaintiff has claimed that she became widow in the year 1938 when her husband Rameshwar Mahto died in jointness with his father and two brothers but the contesting defendant nos. 4 and 5 have categorically come out with a case that the plaintiff became widow in the year 1932 when her husband died in jointness with his father and two brothers. 15. None of the parties have adduced documentary evidence to support their respective case of the date or year of the death of Rameshwar Mahto, husband of the plaitniff. However, the contesting defendant have filed Ext.E and E/1 which are certified copies of the decrees passed in two rent appeals. In Ext.E, which is the decree of a rent appeal of the year 1924, it appears that Preman Mahto alongwith his two brothers namely Bheda Mahto and Dilchand Mahto and three sons namely Rameshwar Mahto, Baldeo Mahto and Keso Mahto had been impleaded as respondents. Ext.E/1 is a decree passed in a rent appeal of the year 1932 wherein Bheda Mahto, Dilchand Mahto alongwith Keso Mahto and Baldeo Mahto had been impleaded as respondents and further the minor sons of Bheda Mahto and Dilchand Mahto had also been impleaded as respondents and shown under the guardianship of Preman Mahto. On this basis it has been submitted by the contesting defendant nos. 4 and 5 that Rameshwar Mahto was no more in 1932 when the rent appeal (Ext.E/1) had been filed. The defendant nos. On this basis it has been submitted by the contesting defendant nos. 4 and 5 that Rameshwar Mahto was no more in 1932 when the rent appeal (Ext.E/1) had been filed. The defendant nos. 4 and 5 however, have brought no material to corroborate the facts of the rent appeal of the year 1932 or the rent appeal of the year 1924. In absence of explanation to the contents of the decree (Ext.E/1) where Preman Mahto had been shown to be the guardian of minor sons of his brothers Bheda Mahto and Dilchand Mahto even when they were alive and had been parties to the rent appeal, it is difficult to infer on the basis of this exhibit alone that Rameshwar Mahto was no more in the year 1932 and therefore he had not been impleaded as respondents. Learned Senior Counsel on behalf of the appellant in this regard has rightly submitted that Preman Mahto was alive in the year 1932 as apparent from Ext.E/1 but he had also not been impleaded as a respondent although he had been shown as guardian of the minor sons of his two brothers Bheda Mahto and Dilchand Mahto. But from the impugned judgment, it does not appear that these documents Ext.E and Ext.E/1 have been solely relied for coming to the conclusion regarding the year of the death of Ramchandra Matho. The learned court below has rightly held that these documents cannot be conclusive proof of death of Rameshwar Mahto in the year 1932, and their relevancy will have to be considered alongwith other evidence. 16. The plaintiff has adduced only oral evidence to establish the death of Rameshwar Mahto. It would be pertinent firstly to scrutinize the deposition of the plaintiff herself who has been examined as P.W.5. She has given her age as 60 years on the date of deposition, although the Court has assessed her age to be 56 years. She has stated in her examination-in-chief that she was 24 years old when her husband died. In her cross examination, however, she has stated that she had gained ‘hosh’ (ability to understand) at the age of 14 years when her ‘Gauna’ was performed, and her first daughter was born two years after the ‘Gauna’. She has stated in her examination-in-chief that she was 24 years old when her husband died. In her cross examination, however, she has stated that she had gained ‘hosh’ (ability to understand) at the age of 14 years when her ‘Gauna’ was performed, and her first daughter was born two years after the ‘Gauna’. She has further stated that her second daughter was born after three years of her first daughter, and her husband died when the second daughter was one year old. 17. P.W.4 Sri Mahto is brother of the plaintiff Sahodri Devi. He has given his age on the date of deposition i.e. 22.09.75 to be 55 years. In his cross examination he has stated that he had gained ‘hosh’ (ability to understand) at the age of 8-9 years. He has further stated that the ‘Rukshadi’ of her sister was performed 1-2 years after he gained ‘hosh’. He has further stated that two years after ‘Rukshadi’, the daughter Deoki was born to his sister and then 2-3 years thereafter, the second daughter Muneshwari was born. He has also stated that Muneshwari was about one year old when Rameshwar died. 18. After scrutinizing the statements made in the deposition by the plaintiff and her brother Sri Mahto, the learned court below has come to the finding that the death of Rameshwar Matho in the year 1938, as asserted by the plaintiff, could not be proved. The learned senior counsel appearing on behalf of the plaintiff-appellant as well as the learned senior counsel for the defendant 1st set-respondent 1st set have submitted that the learned court below has committed error in calculation by approaching the depositions of the plaintiff and her brother expecting mathematical accuracy. The contention has been advanced that admittedly the plaintiff and her brother are rustic, illiterate persons and they cannot be expected to remember the exact date of the events having taken place long back. It has also been canvassed that a closer scrutiny of the depositions of the plaintiff and her brother will not rule out the possibility of another view regarding the death of Rameshwar Mahto having taken place in the year 1938 and there was no reason why the learned court below should not have taken the another possible view. 19. It has also been canvassed that a closer scrutiny of the depositions of the plaintiff and her brother will not rule out the possibility of another view regarding the death of Rameshwar Mahto having taken place in the year 1938 and there was no reason why the learned court below should not have taken the another possible view. 19. It is true that the statements made in the depositions by the witnesses who are illiterate and rustic persons, about the old events and happenings, should not be strictly approached to discern accurate date or year of such events and happenings but simultaneously keeping in view the normal human approach, even a rustic women remembers the year of important events like her marriage, birth of her children and death of her husband by co-relating such events or referring to some major corresponding events or happenings which might have taken place near about at the time of the said events. Therefore, in absence of any strong reason creating doubt with regard to the statement made by the plaintiff in her deposition, there is no illegality in accepting the ordinary inference flowing out of it. At this juncture, it would be apposite to take into consideration the depositions of other witnesses of the plaintiff as well as contesting defendants. 20. P.W.1, Bandhu Mahto is aged about 80 years although the Court has assessed his age to be 75 years. He has stated in his cross examination that he was married at the age of 13 years and his ‘Rukshadi’ was performed one year thereafter. He has further stated that his first son was born 10 years after the ‘Rukshadi’ but has mentioned the age of his eldest son, Brahmdeo to be 40-41 years. This inconsistency in his deposition shows that he has even no correct idea about the age of his own son who as per his own age, as given by him, should have been about 56 years old. 21. P.W.2:- Jago Mahto has accepted that his ancestral house is in another village and it was only 5-6 years ago that he had come to village Dashrathpur. Although, he has stated that Rameshwar Matho died 35-36 years ago but his evidence does not seem to be reliable because he had come to reside in the village of Rameshwar Mahto only recently. 22. Although, he has stated that Rameshwar Matho died 35-36 years ago but his evidence does not seem to be reliable because he had come to reside in the village of Rameshwar Mahto only recently. 22. P.W.3:- Srichand Prasad is aged 47 years on the date of deposition i.e. 22.09.75, and therefore, he must have been 10 years old in the year 1938 when according to the plaintiff’s case, Rameshwar Mahto died and thus cannot be relied as a competent person to depose on the date or year of the death of Rameshwar Matho. 23. P.W.4:- Jagat Narayan Sinha is son-in-law of the plaintiff and also her Pairvikar in the suit. He is thus highly interest person and not an independent witness on the fact of the date or year of death of Rameshwar Matho. 24. The contesting defendants have also examined witnesses in support of their case that Rameshwar Mahto died before 1932. D.W. 1, Nanku Mahto has stated that he had been Mukhiya of the Gram Panchayat and is agnate of the plaintiff. He has further stated that Rameshwar Mahto, the husband of the plaintiff, died 43-44 years ago. He has also stated that Rameshwar Mahto was almost of his age. He has further stated that at the time of death of Rameshwar Mahto, he (Nanku Mahto) was 32 years old, and at the time of death of Rameshwar Mahto, his eldest daughter was about 4 years old. This witnesses has given his age to be 74 years on the date of deposition i.e. 24.09.1975 and thus on this basis the year of the death of Rameshwar Mahto comes to 1933. 25. D.W. 2, Ramjatan Singh is aged about 55 years in the year 1975 when he deposed. He has stated that he gained ‘Hosh’ (ability to understand) at the age of 15-16 years and by that time Rameshwar Mahto was already dead. 26. D.W. 5 Ram Sahay Mahto is aged about 55 years in the year 1975 when he deposed. He has stated that he has gained his ‘Hosh’ (ability to understand) at the age of 10-12 years and Rameshwar Mahto died within one year when this witness had gained ‘Hosh’. He has also stated that Rameshwar Mahto was about 20-22 years elder than him. 27. He has stated that he has gained his ‘Hosh’ (ability to understand) at the age of 10-12 years and Rameshwar Mahto died within one year when this witness had gained ‘Hosh’. He has also stated that Rameshwar Mahto was about 20-22 years elder than him. 27. From the scrutiny of oral evidence led by the parties, it appears that the witnesses examined on behalf of the defendants are more reliable than those of the plaintiff and their depositions appear to have more probative value. Here it cannot be lost sight that the plaintiff has specifically stated that her husband Rameshwar Mahto died in the year 1938. But even after giving utmost liberal construction to the depositions of the plaintiff and her brother, it is difficult to stretch out and hold 1938 to be the year of the death of Rameshwar Mahto. Emphasis has been placed on the age of the plaintiff at the time of her deposition in the year 1975 by pointing out that the learned court below has assessed the age of the plaintiff to be 56 years and has also mentioned the fact that the plaintiff has given her age to be 60 years after much calculation. It has been submitted on behalf of the plaintiff-appellant that the age of the plaintiff as assessed by the court should be accepted. But after accepting the said age of the plaintiff, her year of birth comes to 1919 and according to her statement in paragraph 1 of her deposition that her husband died when she was 24 years old, the year of the death of her husband comes to 1943 which is not the case of any of the parties. Moreover, as mentioned earlier, she has stated that her ‘Gauna’ was performed when she was 14 years old, her first daughter Dewki was born two years thereafter and her second daughter was born three years after the birth of the first daughter; her husband died when the second daughter Muneshari was one year old. From her statements, it becomes specific that she became a widow at the age of 20-21 year. This inference also find corroboration from the deposition of her brother P.W.4 supporting the statements of the plaintiff. From these facts it, thus, becomes pellucid that the another view, as submitted on behalf of the appellant, that Rameshwar Mahto died in the year 1938, is not possible. 28. This inference also find corroboration from the deposition of her brother P.W.4 supporting the statements of the plaintiff. From these facts it, thus, becomes pellucid that the another view, as submitted on behalf of the appellant, that Rameshwar Mahto died in the year 1938, is not possible. 28. From what has been discussed as above, it is clear that the determination of the seminal issue of the year of the death of Rameshwar Mahto has hinged on the appreciation of oral evidence alone. The learned lower court, after scanning the evidence of the parties, has come to the conclusion that the plaintiff has failed to establish the fact that Rameshwar Mahto died in the year 1938 as claimed and has further also recorded the finding that Rameshwar Mahto died before 1932. The appellant as well as the supporting respondent nos. 1 to 3 have failed to establish any serious irregularity in the evaluation of the evidence by the learned court below, and their submissions have mainly centered around in persuading this court to take another view after reappreciating the evidence. It would be condign to refer to the principle in this regard as laid down by the Apex Court in the case of Madhusudan Das Vs. Narayni Bai A.I.R. 1983 SC 114 as follows:- “………when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies…..” 29. Tested on the anvil of the aforesaid principle, the submission on behalf of the appellant as well as the respondent nos. 1 to 3 clearly has no force. Tested on the anvil of the aforesaid principle, the submission on behalf of the appellant as well as the respondent nos. 1 to 3 clearly has no force. No material irregularity in consideration of the evidence could be pointed out and as such this Court finds no reason to differ from the finding of fact on the issue of the year of death of Rameshwar Mahto to be before 1932 as held by the learned court below. This finding also finds corroboration from the decree (Ext. E/1) of the rent appeal of 1932 wherein the name of Rameshwar Mahto had not been mentioned alongwith his two brothers. 30. Much hype has been created on behalf of the appellant over the admission by the respondent nos. 1 to 3 in the written statement that Rameshwar Mahto died in the year 1938. However, from the testimony of the defendant no. 1 Kesho Mahto it becomes lucent that he is not telling truth before the court. The defendant no. 1, Kesho Mahto has been examined as D.W. 2, for defendant nos. 1 to 3, in the year 1975, and he has stated that his brother Rameshwar Mahto died 36-37 years ago. In paragraph 5 of his deposition he firstly accepted the execution of the mortgage deed (Ext. D) but in the next sentence he denied to have executed the said document of mortgage by denying his signature over the same. Again, he has stated that the mortgagee is in possession over the land for which he has executed the mortgage. He has also denied to have raised the plea of bar of suit for partial partition in his written statement. From his written statement, however, this statement is falsified. The learned court below has taken notice of these aspects while considering the deposition of the defendant no. 1 and has refused to place reliance upon the same. In this appeal also, the material discrepancies in the pleading and deposition of the defendant no.1 could not be satisfactorily explained by the appellant. The wavering stands taken by him in the deposition only reinforce the submission on behalf of the contesting defendant-respondents that he is suppressing the truth in collusion with the appellant for the purpose of litigation. 31. In this appeal also, the material discrepancies in the pleading and deposition of the defendant no.1 could not be satisfactorily explained by the appellant. The wavering stands taken by him in the deposition only reinforce the submission on behalf of the contesting defendant-respondents that he is suppressing the truth in collusion with the appellant for the purpose of litigation. 31. On behalf of the appellant, it could not be established that the Civil Appeal No. 4368/97 before the Apex Court related in any manner with the suit property and the contesting defendants were parties thereto. As such, the reliance on the order passed in the said appeal is clearly misplaced. 32. For the aforesaid premised reasons, the conclusion, therefore, is inescapable that the plaintiff has failed to establish her case that her husband Rameshwar Mahto died in the year 1938. Accordingly, the finding of the learned court below in this regard is upheld. 33. In their cross objection, the respondent no. 4 and 5 have assailed the finding of the learned court below that no partition in the family has taken place in the year 1963 as asserted by them. It is manifest from the records that no documentary evidence of partition has been adduced by them. However, the learned counsel for the respondent nos. 4 and 5 has submitted that the Ext. D which is a mortgage deed of the year 1969 executed by defendant no. 1 contains the averment that there had been private partition in the family. It would be apt to point out here that in their written statement the contesting defendant nos. 4 and 5 have given two schedules i.e. schedule 1 and 2. They have mentioned the lands allotted to them in partition of 1963 to them in schedule 1, and in schedule 2 they have mentioned the lands allotted to the defendant nos. 1 to 3. The schedule 1 contains plot no. 1527 area 16 decimal which is also the subject matter of the mortgage deed (Ext. D) executed by the defendant no. 1. The learned counsel for the contesting respondent has failed to explain this anomaly as to how the said plot allotted to the defendant nos. 4 and 5 in partition of the year 1963 could have been mortgaged by the defendant no. 1 in the year 1969. The reliance upon the Chaukidari receipts (Ext. A series), water rate receipts (Ext. 1. The learned counsel for the contesting respondent has failed to explain this anomaly as to how the said plot allotted to the defendant nos. 4 and 5 in partition of the year 1963 could have been mortgaged by the defendant no. 1 in the year 1969. The reliance upon the Chaukidari receipts (Ext. A series), water rate receipts (Ext. B series) and parcha form (Ext. C series) are not sufficient to rebut the presumption of jointness of the family. The oral evidence adduced on behalf of the respondent nos. 4 and 5 on the point of partition also does not inspire confidence. The learned court below has meticulously analyzed the evidence on this issue as adduced by the contesting defendants and has rightly come to the conclusion that there has been no partition in the family in the year 1963 as claimed by the contesting defendants. 34. In the result, I do not find any merit in this appeal which is, accordingly, dismissed. The cross objection filed by the defendant nos. 4 and 5 is also dismissed. The impugned judgment and decree passed by the learned court below is upheld. The suit filed by the plaintiff-appellant is dismissed. In the facts and circumstances, there shall be no order as to costs.