Judgement Appeal from a decree of the High Court (Feb. 3, 1897) modifying a decree of the Subordinate Judge of Patna (May 8, 1895). The appellants sought a declaration of their right to, and recovery of possession of, the properties in suit left by Tiluckdhari Singh, the deceased husband of the respondents, by right of survivorship, alleging that at his death Tiluckdhari formed with them members of a joint and undivided Hindu family, governed by the Mitakshara law, and that consequently his widows would not be entitled to his inheritance. The members of the family constituted a joint undivided family governed by the Mitakshara law to the end of the year 1861. Tundan, who died in 1876, was an energetic member, and most of the conveyances of the subsequent acquisitions and of the most valuable properties were taken in his name. Early in 1861, while still a member of the joint family and without any partition, he removed from the family house, and eventually set up an independent title to all the properties of which he was the nominal owner, claiming them as his separate acquisitions. Criminal proceedings followed, which resulted in recognizances being taken from both parties. Tundan Singh, having numerous deeds in his name and possession, commenced the eviction of the other members of the family. The other members of the family remained together in the family house; and in 1868 Pokh Narain Kashi Singh and Tiluckdhari instituted a joint suit to obtain a declaration of their title to three-fifths of the ancestral estate, and to obtain possession of three-fifths of the acquired property in the separate possession of Tundan. They obtained a decree from the District Judge of Patna, which was confirmed in 1870 by the High Court, and in 1874 by the Privy Council. After the High Courts decree the plaintiffs, or those repre senting them, were placed in joint possession-of the three-fifths share decreed to them. Tiluckhdari died on November 15, 1891, and the question was whether at his death these members of the joint family continued to be joint, or whether a separation had been effected. His widows obtained in spite of opposition a certificate under Act VII. of 1889 to collect debts, the security for which was in the names oi their husband; and thereupon all the surviving members of the family in 1893 sued them to obtain the relief above mentioned. His widows obtained in spite of opposition a certificate under Act VII. of 1889 to collect debts, the security for which was in the names oi their husband; and thereupon all the surviving members of the family in 1893 sued them to obtain the relief above mentioned. The widows in their written statement raised two main pleas (1.) that Tiluckdhari was separate in estate, and that in 1861 Gur Sahai, Tukan Kashi, and Tiluckdhari separated and divided all the ancestral properties, both movable and immovable, amongst themselves, and since then had messed and lived separately and had their business separate from one another; (2.) that the transactions which were in the name of Tiluckdhari alone constituted his separate and self-acquired estate. The judgment of the High Court was to the effect that the plaint in the suit filed in 1868 to recover from Tundan the three-fifths share jointly owned by the plaintiffs itself set out an antecedent separation in interest which could only refer to the separation in 1861, and that a separation among some members of a family operated as a separation among all. In consequence the High Court disbelieved all the evidence of the plaintiffs, believed the evidence of the defendants, decided that Tiluckdhari was separate in estate from the plaintiffs, and dismissed the suit with costs. Mayne and De Gruyther, for the appellants, contended that the High Court had wrongly placed on them the onus of proving that at the date of his death Tiluckdhari was a member of a joint Hindu undivided family. It also wrongly construed the plaint of January 15, 1868, as an admission of an antecedent separation in interest. It further misconstrued the decree in that suit, and erroneously attributed to it that it operated in law to effect a separation amongst all the members of the family. Besides that, there was error in the ruling that a separation of one or more members of a joint family caused a separation among the other members also. It is clear that there was jointness down to 1861, and the legal presumption is that it continued until the contrary was proved see Prit Koer v. Mahadeo Pershad Singh. (( 1894) L. R. 21 Ind. Ap. 134.) The evidence supported the legal presumption. It is clear that there was jointness down to 1861, and the legal presumption is that it continued until the contrary was proved see Prit Koer v. Mahadeo Pershad Singh. (( 1894) L. R. 21 Ind. Ap. 134.) The evidence supported the legal presumption. Reference was made to certain borrowings by Pokh Narain in his own name for joint purposes, which had been subsequently paid off with moneys obtained by all the members of the family on mortgage of their joint property. It was contended that this clearly shewed the continuance of the joint family. They also relied upon what was contended to have been on the evidence a whole series of joint transactions from 1871 to 1891, borrowing, lending, and the acquisition of property by sale and mortgage. It was urged that although certain deeds stood in the name of individual members, yet the evidence shewed that the name was only used as representing the family. Up to 1888 the collections of rent were jointly made by one joint set of servants and remitted to a manager, who kept one book of joint accounts; Government revenue was paid jointly ; and one set of accounts was kept at Patna for all the members of the family. For some years previous to Tiluckdharis death he had lived in a separate house built adjoining to the ancestral house at Shaistapur, but that was because the ancestral house was insufficient to accommodate the increasing number of the family. It was contended that that circumstance, even if separate books of account over and above the joint books of the family were insufficient, was such a separation of interest as established a partition. Reference was made to Jadubchunder Ghose v. Benodbehary Ghose (( 1863) Hyde, 214.); Keshub Ram Mohapattur v. Nund Kishore Mohapattur (( 1869) 11 Suth. W. R. 308.); Petambur Dutt v. Hurish chunder Dutt (( 1871) 15 Suth. W. R. 200.); Radha Churn Dass v. Kripa Sindhu Dass (( 1879) Ind. L. R. 5 Calc. 474.); Upendra Narain Myti v. Gopeenath Bera (( 1883) Ind. L. R. 9 Calc. 817, 822.); Bata Krishna Naik v. Chintamani Naik (( 1885) Ind. L. R. 12 Calc. 262); Sudarsanam Maistri v. Narasimhulu Maistri (( 1901) Ind. L. R. 25 Madr. 149, 156) see also Rewun Persad v. Radha Beeby (( 1846) 4 Moores Ind. Ap. Ca. 137, 168, 169.); Neelkisto Deb Burmono v. Beerchunder Thakoor. L. R. 9 Calc. 817, 822.); Bata Krishna Naik v. Chintamani Naik (( 1885) Ind. L. R. 12 Calc. 262); Sudarsanam Maistri v. Narasimhulu Maistri (( 1901) Ind. L. R. 25 Madr. 149, 156) see also Rewun Persad v. Radha Beeby (( 1846) 4 Moores Ind. Ap. Ca. 137, 168, 169.); Neelkisto Deb Burmono v. Beerchunder Thakoor. (( 1869) 12 Moores Ind. Ap. Ca. 523, 540) As to the effect of a mere separation in food and residence, see Mussumat Anundee Koonwur v. Khedoo Lall. (( 1872) 14 Moores Ind. Ap. Ca. 412,422) Reference was also made to Sonatun By sack v. Juggutsoondree Dossee (( 1859) 8 Moores Ind. Ap. Ca. 66,86.); Runjeet Singh v. Kooer Gujraj Singh (( 1873) L. R. 1 Ind. Ap. 9, 20.); Gajendar Singh v. Sardar Singh (( 1896) Ind. L. R. 18 Allah. 176.); Rewa Prasad Sukal v. Deo Dutt Ram Sukal. (( 1899) L. R. 27 Ind. Ap. 39.) SIR W. RATTIGAN, K.C., and C. W. Arathoon, for the respondents, contended that the sole issue in the case was whether the appellants had proved that Tiluckdhari at the time of his death was a member of an undivided Hindu family in such a sense that according to the Mitakshara law his share passed by survivorship to his male collaterals. There had been so much evidence of separation in mess, worship, and residence, and also in proprietary interests, that the onus was on the plaintiffs to shew that the ancestral property remained joint. But, with regard to that, although there had been no partition by metes and bounds, there was nevertheless proved to have been by decree of Court, as well as by the intention of the parties, and by their conduct a clear specification of separate shares in the ancestral estate. That was all that was necessary to constitute division of title, which under the Mitakshara law effected partition and changed the status of the family quoad the pro perty which had previously been joint, and rendered them a divided family in respect thereof see Mitaksara, c. 1, s. 1, v. 4, and s. 2, v. 12; Tagore Law Lectures, 1884, 1885, pp. 169, 185. A decree directing partition in itself effects partition in the sense of division of title; the division of substance is not necessary for that purpose see Sheikh Khoorshed Hossein v. Nubbee Fatima (( 1877) Ind. 169, 185. A decree directing partition in itself effects partition in the sense of division of title; the division of substance is not necessary for that purpose see Sheikh Khoorshed Hossein v. Nubbee Fatima (( 1877) Ind. L. R. 3 Calc. 551.); Bannoo Ram v. Kashee Ram (( 1877) Ind. L. R. 3 Calc. 315.); Dost Muhammad Khan v. Said Begam (( 1897) Ind. L. R. 20 Allah. 81, 87); Mussumat Jusoda Koonwur v. Gourie Byjonath Sing (( 1866) 6 Suth. W. R. 139.); Appovier v. Rama Subba Aiyan (( 1866) 11 Moores Ind. Ap. Ca. 75.); Doorga Pershad v. Kundun Koowar (( 1873) L. R. 1 Ind. Ap. 55, 67.); Joynarain Giri v. Grish Chunder Myti (( 1878) L. R. 5 Ind. Ap. 228, 232); Chidambaram Chettiar v. Gouri Nachiar (( 1879) L. R. 6 Ind. Ap. 177,180.); Baja Setrucherla Ramabhadra v. Baja Setrucherla Virabhadra. (( 1899) L. R. 26 Ind. Ap. 167.) Mayne replied. Nov. 14. The Judgment of their Lordships was delivered by Sir Andrew Scoble. Umra Singh, zemindar of Shaistapur, in the Patna district of Behar, died in 1836, leaving four sons— Gur Sahai, Tundan, Bhikhari, and Tukan—and a grandson, Kashi Singh (the son of a predeceased son named Ram Sahai), him surviving. These five persons for some time after Umra Singhs death are stated to have formed an undivided Hindu family under the Mitakshara law. The question in the present appeal is whether Tiluckdhari Singh, the son of Bhikhari, was at the time of his death separate in estate from the rest of the family; and the contest is between his nearest agnates, the plaintiffs and appellants, and his widows, the respondents. In order to determine this question it is necessary to examine not only the proceedings in this suit, but also those of a previous litigation which took place between the members of the family in the year 1868. At the time of the institution of this earlier suit, the family consisted of Tundan, Tukan, and Kashi Singh already men tioned, Pokh Narain (son of Gur Sahai) and Tiluckdhari (son of Bhikhari). The plaintiffs were Pokh Narain, Kashi Singh, and Tiluckdhari; Tundan was the principal defendant; and Tukan was made a defendant pro forma, as he was alleged to be acting in concert with Tundan. The plaintiffs were Pokh Narain, Kashi Singh, and Tiluckdhari; Tundan was the principal defendant; and Tukan was made a defendant pro forma, as he was alleged to be acting in concert with Tundan. The plaint was " for recovery of possession, after adjudication upon the rights and interest of the parties respectively, in their shares " of the family property, which was described to be of two classes, partly inherited and partly acquired by purchase by the joint family. After stating that the family had for many years lived jointly and in commensality, and in joint possession of the family property, and that as Tundan was " a shrewd man and had the management of Court business, all the deeds and documents were left in his custody," the plaint went on to aver that, " as the ancestral house in Mouzah Shaistapur was not sufficiently large to accommodate the family," Tundan built a house in Mouzah Nahusa with the joint funds, and in 1861, " with the consent of all the members of the family, took up his abode in it " with his junior wife. This was the beginning of strife, for, although for some time after his removal to the new house " possession was as before held, and business was carried on jointly." Tundan ere long disputed the possession of one of the family properties with his kinsmen, and criminal proceedings were taken, the result of which was that all the parties had to enter into recognizances to keep the peace. From this time (the plaint proceeds) Tundan, "on the strength of having numerous deeds in his name and possession," commenced the eviction of the other members of the family from the purchased estates, and disturbed them in regard to their ownership of the inherited property. The plaint finally averred that "since the property in suit was acquired by all the parties at the time of joint tenancy and commensality of the partners, every one of them is entitled to an equal share according to the provisions of the Shastras." The prayer of the plaint was that "possession over the disputed property" might be decreed to the plaintiffs. In his written statement Tundan alleged that, after the death of Umra Singh in 1836, " the four sons personally and Kashi Singh, through his mother and guardian, divided the ancestral property among themselves, and each took possession of his respective share " and broke up commensality; and he claimed the property in his possession as being either his share of the ancestral estate or acquired by himself personally after the partition in 1836. Tukan, on the other hand, in his written statement supported the view of the plaintiffs, alleging that up to 1860 he, the plaintiffs, and Tundan " had everything, as before, in common for all purposes "; that in 1861 he, "at the same time with the plaintiffs, was ousted from some of his share " ; and that, " upon the same right that the plaintiffs have in the property in suit," he was entitled to recover his share from Tundan. The case came on for settlement of issues in the presence of the pleaders of both parties, and the following question was put to the plaintiffs pleaders by the judge "How long is it since your clients separated and discontinued commensality?" To which the answer was " The separation took place since 26th Magh, Fasli 1268, the time when Tundan took up his residence in another mouzah, and my clients were thrown out of possession on the day the recognizance was taken, i.e., 3rd June, 1861." The following were the first and second issues of fact settled— 1. When did the contending parties, the heirs of the common ancestor Umra Singh, separate from board and divide the ancestral estate ? 2. Whether the property in contention, save that admitted by the defendant Tundan, was acquired from the joint and ancestral funds of all the coparceners while the heirs of Umra Singh had joint interest and lived in commensality, or subsequent to the division of the family, from the funds of the defendant Tundan.” The suit was tried before the judge of the District Court of Patna, who, on September 15, 1868, delivered a judgment dealing mainly with the evidence in support of Tundans allegation of a partition in 1836, which he found was not proved. " Consequently," he said, " I must decide the issues of law, as well as the first two issues of fact, in favour of the plaintiffs V; and the terms of his decree were " that the plaintiffs shall be put in possession of their shares each respectively in the three-fifths of the properties from Nos. 1 to 35, and 38, 47, 51, and 53, together with mesne profits, the amount of which will be determined in the execution department, and also get a decree for the three-fifths of the right alleged by them in respect of the properties from Nos. 40 to 46, 48, 50, and 54." This decree was appealed against to the High Court at Calcutta, and eventually to Her late Majesty in Council, and both appeals were dismissed. But, in the interval between the decision of the High Court and the hearing of the appeal in England, an application was made to the High Court for a review on the ground that, "assuming the decision of that Court to be correct, the facts proved shewed that a large portion of these properties had been acquired by successful purchases of property sold for arrears of revenue in execution of decree and otherwise by Tundan Singh, who not only manifested great judgment and skill in making the purchases, but seems to have enjoyed some peculiar means of obtaining information and other advantages in the purchase of property in consequence of his connection with . . . . , wealthy bankers at Patna"; and that under these circumstances, according to Hindu law, he was entitled to a double share. The review was granted, and the Court ordered that, "should their decision on the main question be affirmed by Her Majesty in Council, a further inquiry would be necessary to determine the shares of the several properties in dispute to which the plaintiffs and Tundan would be respectively entitled." It does not clearly appear whether this further inquiry was ever held; but the decision of the High Court was confirmed by Her late Majesty in Council on June 9, 1874, the only point argued before their Lordships having been the proper construction to be put upon the 21st section of Act I. of 1845. It appears to their Lordships, upon a careful study of these proceedings, that notwithstanding the imperfect form of the decree a separation of the joint family in 1861 must be held to be established. The contest before the District Judge was not whether the family was still joint, but when did they separate. The two dates named by the parties were 1836 and 1861; and, it being found that a separation in 1836 was not proved, it seems to have been taken as a necessary inference that the separation took place in 1861. Otherwise it is difficult to understand the meaning of the judges decision of the first two issues of fact in favour of the plaintiffs. The first issue being, "When did the parties separate from board and divide the ancestral estate?" the finding in favour of the plaintiffs upon this issue is unmeaning without reference to the statement made by their pleaders when the issue was framed, namely, that the separation took place in 1861. And the application for a review of the decree of the High Court clearly indicates that this was the light in which that decree was regarded by Tundan, whose claim for a larger share could not have been satisfied unless the shares of all the coparceners had been ascertained under a scheme for the partition of the family estate at the alternative date to that suggested by himself. It was contended, on behalf of the appellants in the present suit, that although the decree in the suit of 1868 may have effected a separation quoad Tundan and Tukan, it left the plaintiffs united inter se; and that this might have been the legal effect of the decree is undeniable. But here, again, the conduct of the parties must be looked at in order to arrive at what constitutes the true test of partition of pro perty according to Hindu law, namely, the intention of the members of the family to become separate owners. The proceedings in the suit now under appeal afford the answer to this question. In the interval between the institution of the suit of 1868 and the death of Tiluckdhari in 1891 which gave rise to the present suit, several changes had occurred in the family. The proceedings in the suit now under appeal afford the answer to this question. In the interval between the institution of the suit of 1868 and the death of Tiluckdhari in 1891 which gave rise to the present suit, several changes had occurred in the family. Kashi Singh died in 1868, soon after the filing of the plaint, leaving two sons named Ram Pershad and Bishun Dyal; and Tundan died, without male issue, in 1876. Tukan brought a suit in 1869, in which he recovered his share in the family property, and made and registered a will in 1887, by which he left his share of the estate to the heirs of his brothers Gur Sahai and Ram Sahai, to the exclusion of the heirs of his nephew Tiluckdhari, who had no male issue. Tiluckdhari died on November 15, 1891, leaving two widows and four daughters him surviving. The widows thereupon obtained a certificate under Act VII. of 1889 authorizing them to collect certain debts due to their deceased husband, and also procured the registration of their own names in the Collectors books in respect of the landed property which had previously stood in his name. These attempts to establish their title were strenuously but ineffectually resisted by the male members of the family, and led to the institution of the suit now under appeal in 1893. The plaint recited the history of the family and of the previous litigation, and prayed for the recovery of possession from the widows of the interest of Tiluckdhari in the joint properties on the ground that at the date of his death he and the plaintiffs constituted an undivided Hindu family. The defendants by their written statement alleged a separation of the family in 1861, and that the property left by their husband was his separate estate. The material issues settled by the Subordinate Judge of Patna, by whom the case was originally tried, were these— "3. Whether Babu Tiluckdhari Singh was a member of a joint Mitakshara family with the plaintiffs at the time of his death? "4. Whether there was separation of the joint family as described in paragraph 3 of the written statements of the defendants in F. 1268 (A.D. 1861). Whether Babu Tiluckdhari Singh was a member of a joint Mitakshara family with the plaintiffs at the time of his death? "4. Whether there was separation of the joint family as described in paragraph 3 of the written statements of the defendants in F. 1268 (A.D. 1861). If not, whether the suit that was instituted by Pokh Narain and others in 1868 against Tundan Singh and the decree passed thereon had the effect in law of creating a partition between the several members of the family? If so, whether there was subsequent reunion as alleged by the plaintiffs? " The Subordinate Judge came to the conclusion that "on the whole" the defence of partition of ancestral property between Tiluckdhari, Pokh Narain, and Ram Pershad either in 1861, or after delivery of possession under the decree in the suit of 1868, was not established either by satisfactory oral evidence or by documentary testimony; that " the theories of legal severance and of reunion set up respectively by the defendants and plaintiffs are legal fictions concocted on a mistaken view of certain precedents not at all in point to the facts of this case "; and that " Tiluckdhari at the time of his death was separate from Pokh Narain, Ram Pershad, and Bishun Dyal in mess, worship, and residence, but not in ancestral property, though he acquired on his (own) account certain separate property"; and he passed a decree in con formity with these findings. The High Court agreed with the Subordinate Judge in holding that Tiluckdhari at the time of his death was separate in food, worship, and residence from the plaintiffs, but differed from him as to there having been no partition of estate. Upon a careful and exhaustive review of the evidence, the learned judges were of opinion that there was a separation in 1861, when the shares of the parties must have been ascertained, and that there was documentary evidence, dating as far back as 1864, in which these shares were specified in connection with purchases of property by various members of the family at dates anterior to the litigation of 1868. They accordingly dismissed the plaintiffs suit with costs. The evidence on which this decision was based was, in great part, discredited by the Subordinate Judge; and in the argument before their Lordships great stress was Lald upon this circumstance. They accordingly dismissed the plaintiffs suit with costs. The evidence on which this decision was based was, in great part, discredited by the Subordinate Judge; and in the argument before their Lordships great stress was Lald upon this circumstance. When different conclusions as to matters of fact are formed by the Courts below, there is always more or less ground for damaging criticism of the evidence of witnesses and the genuineness of documents. But in this case the District Judge and the High Court agree that as regards residence, food, and worship the family had long ceased to be joint—the only point of difference being as to partition of ancestral property. Upon this question their Lordships have come to the same conclusion as the High Court. As has already been pointed out, the result of the litigation of 1868 was to ascertain the shares of all parties, and although there was, from the nature of the property, no partition by metes and bounds, there was undoubtedly a numerical division, by which the proportion of each partner in the holding was fixed. This is conclusively shewn by the petitions for registration under Bengal Act VII. of 1876, of which a great number are on the record. The petitioners in each case are Pokh Narain, Tiluckdhari, and Ram Pershad and Bishun Dyal; and the petitions are all in the same form and bear the same date, April 20, 1877. Under the heading, "Extent of Applicants Interest," the share of each petitioner is separately stated; as thus, for example, in Exhibit 004 relating to Mouzah Nehusa— As. p. Pokh Narain Singh....... 3 4 Tiluckdhari Singh........ 3 4 Ram Pershad Singh and Bishun Dyal Singh 3 4 And the root of the title is thus described— "Your petitioners, the applicants, were in possession of the share in this mouzah jointly with Babu Tundan Singh, but owing to disputes your petitioners, the applicants, were dispossessed. Thereupon your petitioners instituted a suit for recovery of three sahams out of five sahams, and your peti- tioners got possession therein under a decree and delivery of possession given by the Court." These petitions all bear the signatures of the parties, and clearly indicate individual, not joint, ownership under the final decree in the suit of 1868. Thereupon your petitioners instituted a suit for recovery of three sahams out of five sahams, and your peti- tioners got possession therein under a decree and delivery of possession given by the Court." These petitions all bear the signatures of the parties, and clearly indicate individual, not joint, ownership under the final decree in the suit of 1868. In order to get rid of the effect of these petitions, it was suggested that the shares of the parties were entered at the direction of the registering officer with a view to the imposition of additional stamp duty; but this suggestion is displaced by the terms of the Act, which requires (s. 8 (c)) that the " names and addresses of the proprietors, managers, or mortgagees of the estate, with the character and extent of the interest of each proprietor, manager, and mortgagee," must be entered on the register; and the petitions, therefore, merely comply with the requirements of the Act. The only evidence of reunion subsequent to the clear acknowledgment of separate ownership contained in these petitions is to be found in a document bearing date September 17, 1891, two months before Tiluckdharis death, and purporting to be signed by him, in which an absolutely gratuitous statement is made that the family was joint. The High Court considered that this was a fabricated document; and in this opinion their Lordships concur. It was supported by very questionable evidence, and is entirely inconsistent with the general facts of the case. For the reasons above stated their Lordships have come to the conclusion that Tiluckdhari Singh at the time of his death was not a member of an undivided Hindu family; and they will humbly advise His Majesty that the decree of the High Court ought to be confirmed and this appeal dismissed. The appellants must pay the respondents costs of this appeal.