Judgement Appeal from a decree of the Court of the Judicial Commissioner (October 30, 1909) modifying a decree of the judge of Hardoi (August 27, 1908). On June 20, 1905, the appellants Suraj Narain and his sons sued Bakht Narain and his sons for partition and possession of their half-share of the joint family property which had descended from Bishan Narain, their immediate ancestor. Suraj Narain alleged that he had totally separated himself from Bakht Narain at the end of October, 1901, that there had been a " legal partition " of the properties, first made in November, 1900, and then in October, 1901, and he accordingly prayed for mesne profits in respect of the appellants half-share from the end of October, 1901. Bakht Narain denied the separation and partition as alleged and the right of the plaintiffs to mesne profits. The first Court found that Suraj Narain had separated in mess and worship from Bakht Narain; that he received some moneys from joint funds, but that they were trifling sums, and not proportionate to his share; that he was excluded from the joint family properties, and that the possession of the respondents was wrongful to the extent of the plaintiffs share. He held, therefore, that the plaintiffs were entitled to mesne profits to the extent of a half-share. The Appellate Court found that there had been no separation between the branches of the joint family, of which Suraj Narain and Bakht Narain were the respective heads, up to the time when the former filed his suit, and that there had been no exclusion or circumstances justifying a decree for mesne profits. De Gruyther, K.C., and Dube, for the appellants, contended that the family ceased to exist as a joint undivided Hindu family within the meaning of the Mitakshara law at latest in October, 1901. At that date Suraj Narain was proved by the evidence to have given notice of his intention to hold his share therein separately from his coparceners. Bakht Narain declined to give effect to the partition until the debts on the estate had been discharged. His consent, however, was unnecessary to the division of title. That could be effected on the authorities at the will of one member by giving oral expression of his intention to do so. Reference was made to Rewun Persad v. Radha Beeby (( 1846) 4 Moo. Ind. Ap. His consent, however, was unnecessary to the division of title. That could be effected on the authorities at the will of one member by giving oral expression of his intention to do so. Reference was made to Rewun Persad v. Radha Beeby (( 1846) 4 Moo. Ind. Ap. 137, 168.), Appovier v. Rama Subha Aiyan (( 1866) 11 Moo. Ind. Ap. 75.), Bulakee Lall v. Indurputtee Kowar (( 1865) 3 Suth. W. R. 41.), Vato Koer v. Rowshun Singh (( 1867) 8 Suth. W. R. 82.), Raghubanund Doss v. Sadhu Churn Doss (( 1878) I. L. R. 4 Calc. 425, 430.), Sudarsanam Maistri v. Narasimhulu Maistri (( 1901) I. L. R. 25 Madr. 149, 156.), Radhachurn Dass v. Kripa Sindhu Dass (( 1879) I. L. R. 5 Calc. 474, 476.), Joynarain Giri v. Grishchunder Myti (( 1878) L.R. 5 Ind. Ap. 228.), Rampershad Singh v. Lakhpati Koer (( 1902) L. R. 30 Ind. Ap. 1, 11.), and Balkishen Das v. Ram Narain Sahu. (( 1903) L. R. 30 Ind. Ap. 139.) The evidence shewed that after October, 1901, the appellants had not participated in the joint profits of the family estate. They had been wrongfully excluded therefrom and were accordingly entitled to a decree for the mesne profits of their share. A. M. Dunne, for the respondents, contended that the appellants had failed to prove any separation or partition as alleged. The onus was upon them to do so. But the evidence shewed that the parties had agreed as late as February, 1901, that the family should continue joint as before, and that in mutation proceedings in 1903 Bakht Narains name was recorded with the consent of the appellants as head of the family and the names of Suraj Narain and another brother were recorded as joint proprietors. The evidence also failed to shew any exclusion of the appellants from participation in the joint profits; but on the contrary proved that Suraj Narain had been offered a share and had declined to receive it. The High Court was right in refusing a decree for mesne profits. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by MR. AMEER ALI. The High Court was right in refusing a decree for mesne profits. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by MR. AMEER ALI. The point for determination involved in this appeal turns on the question whether the plaintiffs, who were admittedly members of a joint Hindu family governed by the Mitakshara law, separated as they allege in October, 1901, or whether they continued joint in property, if not in food and worship, as the defendants contend, up to the institution of the suit in 1905. The parties are Kashmiri Brahmins settled in Oudh and, with the exception of the defendant Ratan Lal, are descended from one Pandit Bishan Narain, who died over forty years ago. He left four sons, of whom Pandit Suraj Narain, the first plaintiff, is the only one now surviving. On Bishan Narains death his eldest son Raj Narain became the karta of the joint family. On his death in 1890, Ram Narain, the next in order of seniority, assumed charge of the family estate. He died in October, 1900, leaving a daughter who is married to the defendant Ratan Lal. Her son Raj Indar Narain appears to have been adopted by Ram Narain, and although his name frequently appears in the course of the present litigation he is no party to the action. On the death of Ram Narain, the defendant Bakht Narain, who has died since the institution of this suit, applied in November, 1900, for mutation of names in the Collectors register in respect of the joint family property. On December 8, 1900, Suraj Narain filed a petition objecting to the mutation being effected in Bakht Narains name alone, and praying that his name along with the plaintiffs and Raj Indar Narains might be entered in equal shares. Some action appears to have been taken by the revenue authorities on the application of Bakht Narain, but, before any definite order was made, the parties came to a settlement which was embodied in a deed of compromise. Some action appears to have been taken by the revenue authorities on the application of Bakht Narain, but, before any definite order was made, the parties came to a settlement which was embodied in a deed of compromise. This document bears date February 27, 1901, and, after reciting the facts connected with Suraj Narains application, proceeds to state as follows " Hence, in submitting this application we pray that mutation of names be effected in favour of Pandit Bakht Narain alone as the head of a joint family, and the status of the family has continued joint from the death of Pandit Ram Narain up to this day and shall remain so as long as any dispute does not arise among the heirs." Bakht Narains name was accordingly entered with regard to the entire joint estate, and matters apparently remained in statu quo for the next two years. In consequence of some quarrel with his elder brother, Suraj Narain on May 5, 1903, applied to the revenue authorities to have his and Raj Indar Narains names entered jointly in respect of two-thirds of the family properties. The differences between the brothers seem to have been mainly connected with the question of shares the two branches of the family would take upon a partition. As Bakht Narain had three sons and Suraj Narain had only two, the latter evidently apprehended that if the division were to be made per capita his branch would obtain a smaller share. The compromise of February, 1901, which provided for a reference to the Advocate-General was really intended to remove this fear on the part of Suraj Narain. On August 81, 1903, the Assistant Collector made an order in favour of Suraj Narain. This order was reversed on appeal by the Deputy Commissioner on October 30, 1903. The Deputy Commissioner embodies in his judgment the actual contentions advanced before him by the parties, which afford a strong indication of the views they then took of the position of the family. Their Lordships will refer to this document when dealing with the arguments at the Bar on this appeal. After the Deputy Commissioners order, Suraj Narain returned to the service of the Amethi estate and remained there up to the end of 1904. Their Lordships will refer to this document when dealing with the arguments at the Bar on this appeal. After the Deputy Commissioners order, Suraj Narain returned to the service of the Amethi estate and remained there up to the end of 1904. In June, 1905, he, in conjunction with his surviving son, brought the present suit against Bakht Narain and his sons for a partition of the family properties. The various proceedings in the suit of Bakht Narain against Ratan Lal, in which Suraj Narain attempted to be joined as a plaintiff, have no direct bearing on the question their Lordships have to consider. In the present action the plaintiffs, Suraj Narain and his son, claimed to recover mesne profits from Bakht Narain and his branch of the family, on the ground that they had separated from the joint family in October, 1901. Their contention was accepted by the Subordinate Judge, who made a decree in their favour on that basis. The Judicial Commissioners have on appeal reversed his decision ; and the present appeal to His Majesty in Council is from their judgment. The learned judges have carefully and elaborately examined the evidence on the question of the alleged separation in October, 1901; and as their Lordships agree with the main conclusions of the Court below, they do not consider it necessary to deal with the matter in detail. The principle applicable to cases of separation from the joint undivided family has been clearly enunciated by this Board in Rewun Persad v. Radha Beeby (4 Moo. Ind. Ap. 137.) and the well-known case of Appovier. (11 Moo. Ind. Ap. 75.) What may amount to a separation or what conduct on the part of some of the members may lead to disruption of the joint undivided family and convert a joint tenancy into a tenancy in common must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed. In the present case that element appears to their Lordships to be wholly wanting. A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed. In the present case that element appears to their Lordships to be wholly wanting. By the compromise of February the parties had agreed to retain the status of jointness which had existed till then "until any dispute arose among the heirs." Suraj Narain alleges that he separated a few months later ; there is, however, no writing in support of his allegation, nothing to shew that at that time he gave expression to an unambiguous intention on his part to cut himself off from the joint undivided family. The oral evidence on which the allegation has mainly rested, as the learned judges in the Court below point out, is either inconclusive or unreliable. On the other hand, his conduct, borne out by documents, is clearly against his contention. After the com promise of February, 1901, the mutation proceedings instituted by Bakht Narain in November, 1900, were continued, and on January 2, 1902, the revenue officer directed that the state ments of the two brothers should be recorded "to ascertain in whose name the entry should be made." And on February 8 the officer in question made the following order — "As the statements of Pandit Bakht Narain and Suraj Narain have been received and they unanimously show their willingness for the entry of the name of Bakht Narain and declare his possession also, and as no one has filed any objection, it is therefore ordered that, after expunging the name of Ram Narain, deceased, the name of Bakht Narain be entered and the file submitted to the officer in charge of Pargana for sanction." The conduct of Suraj Narain on this occasion was certainly not consistent with his allegation that he had severed his connection with the joint family, of which Bakht Narain was the acknowledged "head," in October, 1901. In his application of May 5, 1903, among other matters, he speaks of a separation in "mess and worship," but there is not mention of a division of rights in property. Had his present statement been true, some reference would unquestionably have been made to it in this document. In his application of May 5, 1903, among other matters, he speaks of a separation in "mess and worship," but there is not mention of a division of rights in property. Had his present statement been true, some reference would unquestionably have been made to it in this document. Separation from commensality, as was observed in the case of Rewun Persad v, Radha Beeby (4 Moo. Ind. Ap. 137.), does not as a necessary consequence effect a division of the joint undivided property. A separation in mess and worship may be due to various causes, and yet the family may continue joint in estate. In the present case there is evidence to shew it arose from a difference in the religious opinions of the two brothers. But the conduct of Suraj Narain after the order of the Deputy Commissioner on October 30, 1903, and the statements of his pleader before that officer, leave no doubt in their Lordships mind that his present allegation is unfounded. The passage in the Deputy Commissioners judgment which gives the substance of these statements is important. After reciting some of the facts connected with the dispute before him, the judgment proceeds thus "Ultimately on the 29th February, 1901 [sic], by virtue of a compromise, the name of Bakht Narain was entered as manager and head of a joint Hindu family. By a clause at the end of this agreement Bakht Narain was to remain so recorded so long as there should be no dispute among the warisan. There is now a discussion as to the meaning of the word warisan. "Mr. Jackson for appellant argues that it clearly refers to the heirs of the executant of the compromise. Mr. Champat Rai or the respondent maintains that it refers to the executants themselves; and as they are now in disagreement he wishes to have his clients name recorded in the Government registers. "Here it is necessary to say that there is a third party, Raj Indar Narain, said to be the adopted son of Ram Narain. "Bakht Narain now denies the validity of the adoption." And the order is, "I think that Suraj Narain and Raj Indar Narain" (the applicants in that case) "should go to the Civil Court and get their shares clearly denned." The statement of Mr. "Bakht Narain now denies the validity of the adoption." And the order is, "I think that Suraj Narain and Raj Indar Narain" (the applicants in that case) "should go to the Civil Court and get their shares clearly denned." The statement of Mr. Champat Rai appears to their Lordships to involve a clear admission that the joint status had continued till then; and that as the parties were, to use his words as recorded by the Deputy Commissioner, "now in disagreement," he wished to have his clients name recorded in the Government registers. After the dismissal of his application, as already observed, Suraj Narain went away to Amethi without making an attempt to go to the Civil Court. Although Suraj Narain made various attempts to come in as a plaintiff in the suit Bakht Narain had brought against Ratan Lal, it may be taken as well established that after the Deputy Commissioners order matters remained in statu quo until the present action was instituted. Their Lordships are of opinion that the allegation regarding a separation in October, 1901, of rights in property fails, and that the view of the learned judges in the Court below is well founded, that the plaintiffs are not entitled to claim mesne profits on that basis. But it is urged that as the plaintiffs did not, after the disputes arose between the two brothers, receive any profits from the joint estate, they are entitled to mesne profits on the ground of exclusion. The evidence is clear and distinct on this point, and shews that Bakht Narain was all along offering Suraj Narain an allowance of Rs. 200 a month, which he refused to accept as being inadequate. This certainly does not, in their Lordships judgment, amount to exclusion from the joint estate. On the whole their Lordships are of opinion that this appeal fails and ought to be dismissed with costs, and their Lordships will humbly advise His Majesty accordingly.