JUDGMENT Collister, J. - This is a defendants' appeal. The suit was for possession of a house at Allahabad, an haveli at Anapur, some house sites in the city of Benares, some property endowed to defendant 5 and a big landed estate comprising many villages in several districts. The headquarters of the estate are at Anapur in the District of Allahabad and its annual income is said to be Rs. 75,920, and mesne profits at this rate are also claimed. The property is known as the Anapur Estate. There is a pedigree in the lower Court's judgment at page 152 of our paper-book which gives the date of birth and the date of death of various members of the family, and this pedigree is admitted by the parties. It will be seen that one Chintaman Singh was the common ancestor of the plaintiffs and defendants 1, 2 and 7. Defendants 3 and 4 are nephews of Babuain Jodha Kunwar, the wife of Gauri Shanker Prasad Singh. As will shortly be seen, the latter-who died in 1902-figures prominently in the dispute. Defendant 5 is a deity and a Pathshala. Defendant 6 is a lessee from Babuain Jodha Kunwar: but he did not put in an appearance. The principal defendants are 1 and 2, namely Bhagwati Saran Singh and his cousin Bindeshwari Saran Singh. They and their nephew, defendant 7, are descended from one of the three sons of Chintaman Singh, a man named Bishun Dat Singh. A joint written statement was put in by defendants 1, 2 and 5. Another written statement was filed by defendants 3 and 4, Ram Subhag Singh and Sukhdeo Narain Singh, who, as I have already said, are the nephews of Babuain Jodha Kunwar, now deceased. They were represented by counsel at the trial of the suit, but he apparently took no part in the proceedings. They have nevertheless joined in this appeal. There is on the record a third written statement on behalf of defendant 7 but he did not contest the suit and has not appealed. 2. The plaintiffs are Parmeshwari Nandan Singh and Audeshwari Nandan Singh. They have nevertheless joined in this appeal. There is on the record a third written statement on behalf of defendant 7 but he did not contest the suit and has not appealed. 2. The plaintiffs are Parmeshwari Nandan Singh and Audeshwari Nandan Singh. They are the sons of Babuain Raj Kishori Kunwar and are directly descended from Deoki Nandan Singh, who was one of the three Sons of Chintaman Singh and was a brother of Bishun Dat Singh, the ancestor of defendants 1, 2 and 7, The allegations in the plaint were to the following effect: The property in dispute was acquired by Deoki Nandan Singh. In course of time, it was inherited by his son and subsequently it passed by survivorship to his two grandsons, Ram Ratan Singh and Ram Parsan Singh. Ram Ratan Singh died on 31st December 1846 leaving two sons, Har Shanker Prasad Singh and Gauri Shankar Prasad Singh. Har Shanker Prasad Singh was born in 1835 and died on 16th June 1903. Gauri Shankar Prasad Singh was born on 2nd February 1842 and died in August 1902. Gauri Shankar Prasad Singh was born deaf, dumb and blind and was a congenital lunatic, and subsequently it became known that he was also congenitally impotent. After the death of Ram Ratan Singh the property passed by survivorship to Har Shankar Prasad Singh and his uncle Ram Parsan Singh. Gauri Shankar Prasad Singh, owing to his disability, was only entitled under the Hindu law to maintenance and protection. Ram Parsan Singh died on 29th January 1854 leaving a widow, Babuain Narain Kunwar. Thus Har Shankar Prasad Singh became the exclusive owner of the property, with an obligation to maintain his brother and his aunt, namely Gauri Shankar Prasad Singh and Babuain Narain Kunwar. 3. At the date of Ram Parsan Singh's death in 1854 no debts were due from the family; but Har Shankar Prasad Singh was improvident, extravagant and licentious and he began to borrow money right and left and soon fell very heavily into debt. In course of time, several decrees for money and decrees for sale of property were obtained against him by his creditors and he then devised a plan for saving half the property. In course of time, several decrees for money and decrees for sale of property were obtained against him by his creditors and he then devised a plan for saving half the property. He gave it out that Gauri Shankar Prasad Singh had not been born deaf, dumb, blind and an idiot and he schemed to save a moiety of the property as belonging to Gauri Shanker Prasad Singh. At his instigation Babuain Narain Kunwar on 23rd June 1874 applied to the District Judge of Allahabad under Act 35 of 1858. She stated in her application that Gauri Shanker Singh was at that time a lunatic and incapable of managing his property and that his brother was squandering it, and she accordingly prayed that she be appointed the guardian of Gauri Shankar Prasad Singh and that a manager of his property be also appointed. This application was not opposed by Har Shankar Prasad Singh and was allowed on 14th August 1874, Babuain Narain Kunwar was appointed guardian and her nephew, a man named Dalthaman Singh, was appointed manager of Gauri Shankar Prasad Singh's property. Thereafter, Dalthaman Singh instituted several suits on behalf of Gauri Shankar Prasad Singh against Har Shankar Prasad Singh and the latter's creditors and transferees; and all this was done at the instigation of Har Shankar Prasad Singh. It was alleged in these suits that Gauri Shankar Prasad Singh had become a lunatic at the age of 16 and that Har Shankar Prasad Singh's transfers were without legal necessity and were not binding as against Gauri Shankar Prasad Singh's half share of the property. It was held by the Court that Gauri Shankar Prasad Singh was not a congenital idiot and that his moiety share in the properly was not liable for sale in satisfaction of the debts due from Har Shankar Prasad Singh. 4. Subsequently the District Judge, acting under S. 326 of Act 10 of 1877-which was the CPC then in force - placed a portion of Har Shankar Prasad Singh's share of the estate under the management of the Collector for the liquidation of Har Shankar Prasad Singh's debts. 4. Subsequently the District Judge, acting under S. 326 of Act 10 of 1877-which was the CPC then in force - placed a portion of Har Shankar Prasad Singh's share of the estate under the management of the Collector for the liquidation of Har Shankar Prasad Singh's debts. After the death of Babuain Narain Kunwar which took place on some date prior to 1880-and of Dalthaman Singh, an application was preferred by Babuain Jodha Kunwar at the instigation of Har Shankar Prasad Singh for her appointment as guardian of her husband, Gauri Shankar Prasad Singh. At the same time, Har Shankar Prasad Singh exerted himself to have the whole estate placed under the Court of Wards; and in this he succeeded. Thereafter, at his instigation, the application which had been preferred by Babuain Jodha Kunwar was struck off in the Court of the District Judge. Thereafter, again at the instance of Har Shankar Prasad Singh, an application was preferred by Babuain Jodha Kunwar to the Court of Wards, praying that the debts due to Har Shankar Prasad Singh's creditors be paid off from the profits of the whole estate. This application was not allowed; but some of the properties which had been sold or were about to be sold were re acquired from the income of the whole estate. 5. On 12th June 1889, Har Shankar Prasad Singh took in adoption Gopal Saran Singh, who was a member of Bishun Dat Singh's branch of the family, as will appear from the pedigree. Har Shankar Prasad Singh was still heavily in debt and accordingly on 19th June 1897, he executed a sale deed in respect to 79 villages - which represented the property remaining in his possession-in favour of Gauri Shankar Prasad Singh for a sum of rupees 2,12,521. There was, however, no transfer of this property; nor was any intended. Thus Har Shankar Prasad Singh's debts were all paid up and he retained possession of these 79 villages. All this was done "out of policy" and with the assistance of the Court of Wards. There was, however, no transfer of this property; nor was any intended. Thus Har Shankar Prasad Singh's debts were all paid up and he retained possession of these 79 villages. All this was done "out of policy" and with the assistance of the Court of Wards. Gauri Shankar Prasad Singh died in 1902, and Har Shankar Prasad Singh remained as before the sole and exclusive owner of the whole estate, or alternatively he succeeded to Gauri Shankar Prasad Singh's interest by survivorship, but "out of policy" and for the sake of consolation he allowed Babuain Jodha Kunwar's name to be recorded in the Milage papers, but she continued to live with Har Shankar Prasad Singh and was maintained by him and she acquired no light in the property as the widow of Gauri Shankar Prasad Singh for the reason that Gauri Shankar Prasad Singh himself, owing to his disability, had no title in the property. By an amendment of the plaint dated 18th May 1937, it was pleaded that, even if the Court were to find that Gauri Shankar Prasad Singh died separate and possessed of property his inheritance did not devolve upon Babuain Jodha, Kunwar, but upon Har Shankar Prasad Singh, for the reason that Gauri Shankar Prasad Singh was insane and impotent and therefore even if there was a marriage in fact, there was no marriage as recognized by Hindu law. 6. The plaint then goes on to state as follows: Har Shankar Prasad Singh died on 16th June 1903 and was succeeded by his adopted son, Gopal Saran Singh but Gopal Saran Singh himself died on 24th' November 1903. The Court of Wards, however, continued to hold possession of the estate under S. 42, Court of Wards Act (3 of 1899). Babuain Shiam Dulari Kunwar, the wife of Gopal Saran Singh, gave birth to a posthumous son on 15th May 1904, but he died on 6th August 1905, and Babuain Shiam Dulari Kunwar then acquired a life estate in the property. Gopal Saran Singh left a daughter, Babuain Raj Kishori Kunwar. She was given in marriage not by Babuain Shiam Dulari Kunwar, who was overwhelmed with grief and had religious inclinations, but by Babuain Jodha Kunwar, and the aforesaid daughter gave birth to two sons who are the plaintiffs to the suit. Gopal Saran Singh left a daughter, Babuain Raj Kishori Kunwar. She was given in marriage not by Babuain Shiam Dulari Kunwar, who was overwhelmed with grief and had religious inclinations, but by Babuain Jodha Kunwar, and the aforesaid daughter gave birth to two sons who are the plaintiffs to the suit. Babuain Raj Kishori Kunwar died on 10th July 1924 and the plaintiffs, being sister's sons of the posthumous son of Gopal Saran Singh, are entitled to the estate. Meanwhile, on 1st October 1920 the estate was released by the Court of Wards. Thereafter defendants 1 to 4 acquired influence over Babuain Shiam Dulari Kunwar and Babuain Jodha Kunwar and obtained inter alia a tamliknama on 3rd September 1923 from Babuain Jodha Kunwar, which she had no right to execute and which contained a false recital that Gauri Shankar Prasad Singh had been the exclusive owner of the estate, that the executant had a limited interest therein as a Hindu widow and that the aforesaid defendants were entitled to succeed after the death of the executant. Thereafter defendants 1 and 2 had other invalid conveyances executed by Mt. Jodha Kunwar which were beneficial to themselves. Babuain Jodha Kunwar died on 16th August 1932 and thereafter Babuain Shiam Dulari Kunwar remained in possession. The latter died on 13th December 1935 at Benares in a house known as Deoki Nandan's haveli; and thereafter the plaintiffs entered into possession of it as owners. The rest of the property is in the possession of the defendants. The above is, I think, a fair summary of the allegations in the plaint. Defendants 1, 2 and 5 filed a joint written statement. In it there is a denial of all the allegations in the plaint which these defendants are interested in denying. The if case, as it appears in the written statement and as amplified at the trial, may be thus summarised: Gauri Shankar Prasad Singh was not born deaf, dumb, blind and an idiot; nor was he congenitally impotent. He was therefore not disqualified under the Hindu law and he acquired at birth an interest in the family estate as a coparcener. This fact has been found in the suits which were instituted by Dalthaman Singh and the matter is therefore res judicata. He was therefore not disqualified under the Hindu law and he acquired at birth an interest in the family estate as a coparcener. This fact has been found in the suits which were instituted by Dalthaman Singh and the matter is therefore res judicata. Har Shankar Prasad Singh has continuously admitted Gauri Shankar Prasad Singh's interest in the estate, except for one occasion in 1872 when he chose Co deny thus fact. The plaintiffs are bound by the conduct of Har Shankar Prasad Singh whom they now represent. Har Shankar Prasad Singh, being a man of profligate habits, began to waste the property and accordingly in 1874 Babuain Narain Kunwar applied to be appointed guardian of Gauri Shankar Prasad Singh on the ground that the latter had become a lunatic at the age of 16. A certificate was granted to Babuain Narain Kunwar, and Dalthaman Singh was appointed manager under the Lunacy Act (Act 35 of 1858). These proceedings amounted to an unequivocal intention to separate on behalf of Gauri Shankar Prasad Singh, and this was accepted by the Court. There was thus a separation between the two brothers and ever since they have been in separate possession of their respective shares of the estate. Thereafter, Dalthaman Singh instituted suits on behalf of Gauri Shankar Prasad Singh against Har Shankar Prasad Singh and his creditors and transferees in order to protect Gauri Shankar Prasad Singh's share of the properties which had been alienated. The suits were defended by the creditors on the ground that Gauri Shankar Prasad Singh was congenitally deaf, dumb, blind and was insane and was therefore excluded from any title to the property; but the suits were decreed in the trial Court and in appeal. 7. There was no such "scheme" on the part of Har Shankar Prasad Singh as alleged in the plaint; but even assuming that it was at his instance that applications were preferred by Mt. Narain Kunwar and Mt, Jodha Kunwar and suits were instituted by Dalthaman Singh, the plaintiffs cannot take advantage of the fraud practised by their predecessor-in-interest. On the death of Mt. Narain Kunwar the share of Gauri Shankar Prasad Singh was taken over by the Court of Wards in 1881, while theshare of Har Shankar Prasad Singh was managed by the Collector under the provisions of the CPC with a view to effect the liquidation of the owner's debts. On the death of Mt. Narain Kunwar the share of Gauri Shankar Prasad Singh was taken over by the Court of Wards in 1881, while theshare of Har Shankar Prasad Singh was managed by the Collector under the provisions of the CPC with a view to effect the liquidation of the owner's debts. In the years 1882-84 there was a perfect partition of villages forming part of the original joint estate, and 10 years later there were other partitions. This is further evidence of severance. 8. The shares of Har Shankar Prasad Singh in the ancestral properties were sold at auction and were purchased either by his creditors or else by the Court of Wards on behalf of Gauri Shankar Prasad Singh. In 1897 the Court of Wards purchased on behalf of Gauri Shankar Prasad Singh the remaining property of Har Shankar Prasad Singh (i.e., the 79 villages already referred to). The sale deed was executed not only by Har Shankar Prasad Singh, but also by his adopted son Gopal Saran Singh. It was a real and bona fide transaction and was duly effectuated. The title of Har Shankar Prasad Singh in the sold property was thereby extinguished and vested in Gauri Shankar Prasad Singh, who thus became the exclusive owner. This and previous acts and transactions are proof of separation. 9. After Gauri Shankar Prasad Singh's death his widow, Babuain Jodha Kunwar, succeeded to the estate as a Hindu widow with limited interest and was so recognized by the Court of Wards, which continued to manage the property in her name and on her behalf. Babuain Jodha Kunwar was thereafter in adverse and proprietary possession through the Court of Wards; and after the estate had been released in 1920 she entered into actual possession and this continued until her death in 1932. The suit is barred by limitation. During her lifetime Babuain Jodha Kunwar executed five documents in 1923. These were: (1) A tamliknama in favour of defendants 1, 2 and 5. (2) A wakfnama in favour of defendant 5. (3) A deed of gift in favour of the plaintiffs' mother. (4) A deed of transfer in favour of Babuain Shiam Dulari Kunwar. (5) A deed of gift In favour of two nephews, defendants 3 and 4. These were: (1) A tamliknama in favour of defendants 1, 2 and 5. (2) A wakfnama in favour of defendant 5. (3) A deed of gift in favour of the plaintiffs' mother. (4) A deed of transfer in favour of Babuain Shiam Dulari Kunwar. (5) A deed of gift In favour of two nephews, defendants 3 and 4. Under the tamliknama Babuain Jodh Kunwar recognized the right of these defendants as nearest reversioners; and as regards the deed of gift in favour of Babuain Kishori Kunwar, the plaintiffs have now inherited the gifted property from their mother and are in possession. 10. After the death of Babuain Jodha Kunwar in 1932 these defendants succeeded to the estate and rightfully entered into possession. The plaintiffs are no heirs to the estate of Gauri Prasad Singh and have no title to it as against the defendants. Finally it is alleged that Babuain Shiam Dulari Kunwar, the grandmother of the plaintiffs, occupied a portion of the house at Benares with the consent and permission of Babuain Jodha Kunwar; but these defendants were in actual possession of the remainder of the house after the death of Babuain Jodha Kunwar. On the occasion of Babuain Shiam Dulari Kunwar's death however the plaintiffs forcibly dispossessed these defendants from the aforesaid house in December 1935 and the defendants have instituted a separate suit for possession, I may mention that the decree in the aforesaid suit is the subject of appeal in F.A. 14 of 1938 in which judgment is being delivered by us today, Before leaving this written statement, it may be noted that there is also a denial of the allegations in para. 20 of the plaint which are to the effect that Babuain Shiam Dulari Kunwar gave birth to a posthumous son, who thereupon became owner of the property, but that he died shortly afterwards and his mother inherited the property with a life interest. The denial of these allegations will explain why there is no mention of the posthumous son in the pedigree set out in the judgment and admitted by the parties but the fact of the birth of a posthumous son appears in the typed pedigree which has been supplied to us by Sir Tej Bahadur Sapru on behalf of these defendants. There is no longer any controversy on this point. There is no longer any controversy on this point. The plaintiffs are the sister's sons of the son born posthumously to Gopal Saran Singh. Defendants 3 and 4 pleaded that Gauri Shankar Prasad Singh was in no way disqualified under the Hindu law, that the suit was barred by the rule of res judicata, that the two brothers were separate in all respects and the estate passed to Mt. Jodha Kunwar as a Hindu widow, that the suit was barred by limitation and that the plaintiffs are estopped from challenging the transfers made in 1923, especially the deed of gift in favour of their own mother, which they have taken care not to mention in the plaint. This latter plea is also implied in para. 13 of the written statement of defendants 1 and 2. As I have already said, defendant 7 also filed a written statement but he has not joined in this appeal and it is therefore unnecessary to set out his allegations. Defendant 6 put in no appearance at all. 11. The main findings of the learned Judge are as follows: (1) Mt. Shiam Dulari Kunwar, the widow of Gopal Saran Singh, gave birth to a posthumous child, who died in the following year. (2) The judgments in the various suits which were instituted by Dalthaman Singh in 1876-1877 operate as res judicata whereby the plaintiffs are estopped from pleading that Gauri Shankar Prasad Singh was excluded from succession by reason of congenital disability. The evidence, moreover, proves that Gauri Shankar Prasad Singh suffered from no congenital disability and that he and his brother were joint owners of the ancestral estate at the death of their father and uncle. Lunacy supervened at a later date. (3) The marriage of Gauri Shankar Prasad Singh with Babuain Jodha Kunwar was performed according to Hindu rites and was a valid marriage, notwithstanding the fact of lunacy and accordingly Babuain Jodha Kunwar was entitled to succeed to her husband "in respect of separate share or his self-acquired property." (4) There could be no legal partition between Har Shankar Prasad Singh and Gauri Shankar Prasad Singh; but even if a contrary view be held, Gauri Shankar Prasad Singh had no right to any share on partition for the reason that be had become a lunatic. (5) Nor was there any partition in fact inasmuch as no unambiguous and unequivocal intention to separate was expressed either by Har Shankar Prasad Singh or by the guardian of Gauri Shankar Prasad Singh. (6) The sale deed of 1897 did not operate as a partition and did not affect the joint status of the two brothers; but it had the effect in law of extinguishing the rights of Har Shankar Prasad Singh and his adopted son in the property sold, and the plaintiffs are estopped from questioning the validity of the aforesaid sale deed. The property conveyed to the Court of Wards on behalf of Gauri Shankar Prasad Singh became the latter's exclusive property and on his death it passed to his wife, Babuain Jodha Kunwar. When she died in 1932, it devolved upon defendants 1 and 2, who are the nearest male reversioners of Gauri Shankar Prasad Singh. (7) On the death of Gauri Shankar Prasad Singh in 1902 the whole estate-excepting the property covered by the sale deed of 1897-vested in Har Shankar Prasad Singh and his adopted son by survivorship. When they died in 1903 and 1904 respectively, the estate vested in the posthumous son of Gopal Saran Singh, and on the latter's death in 1905 it vested in Babuain Shiam Dulari Kunwar as a widow's estate. On her death in 1935 the plaintiffs acquired a title to the aforesaid estate as sister's sons of the posthumous son of Gopal Saran Singh. Even if Gopal Saran Singh had had no posthumous son, the plaintiffs would still be entitled to the property as the daughter's sons of Gopal Saran Singh. (8) The suit is not barred by limitation. (9) Har Shankar Prasad Singh committed no fraud such as would bar the plaintiffs as his legal representatives from claiming the property. 12. These are the findings, and in the result the learned Judge has dismissed the suit as regards the 79 villages which were transferred under the sale deed of 19th June 1897, but has decreed the suit in respect to the rest of the claim. There is an appeal before us on behalf of defendants 1, 2 and 5 and on behalf of defendants 3 and 4. There is an appeal before us on behalf of defendants 1, 2 and 5 and on behalf of defendants 3 and 4. There is also a cross-objection in respect to that portion of the decree in which the claim for recovery of the 79 villages has been dismissed and in respect to the validity of the marriage between Gauri Shankar Prasad Singh and Babuain Jodha Kunwar. In order that the points in controversy may be appreciated it is necessary to set out chronologically a long series of facts and events and of divers acts performed by various members of the family. Many of these are strongly relied upon by learned counsel for the appellants as significant indications of conduct which, it is said, both individually and in their cumulative result, support the case of the defendants. In 1846 the descendants of Deoki Nandan Singh who had admittedly acquired the estate in suit consisted of his two grandsons. Ram Ratan Singh and Ram Persan Singh, and the two minor sons of Ram Ratan Singh, namely Har Shankar Prasad Singh and Gauri Shankar Prasad Singh. Ram Ratan Singh died on 31st December of that year and on 5th February 1847 Ram Persan Singh applied for a succession certificate as guardian of the two minor sons of the deceased; and a certificate was granted on 26th February of that year. Har Shankar Prasad Singh was at that time 12 years of age and Gauri Shankar Prasad Singh was 5. On 29th January 1854 Ram Parsan Singh died leaving a widow, Babuain Narain Kunwar, and on 22nd February Har Shankar Prasad Singh - who was then of age - applied for mutation of names on his own behalf and on behalf of his minor brother Gauri Shankar Prasad Singh, and the application was allowed on 31st March. At this date Har Shankar Prasad was 19 and Gauri Shankar Prasad Singh was 12 years of age. On 3rd November 1854, Har Shankar Prasad Singh applied for a succession certificate in respect to the estate of Ram Parsan Singh. This application was on his behalf and as guardian of his minor brother, and it was stated therein that the deceased had been joint in status with the applicants. The certificate was granted. 13. Why these succession certificates were sought when the family was admittedly joint is not clear; but nothing turns on this. This application was on his behalf and as guardian of his minor brother, and it was stated therein that the deceased had been joint in status with the applicants. The certificate was granted. 13. Why these succession certificates were sought when the family was admittedly joint is not clear; but nothing turns on this. It is pointed out that in none of the above-mentioned applications was there any suggestion of Gauri Shankar Prasad Singh being under any legal disability; but it is now common ground that lunacy supervened when he was about 16 years of age. On 25th May 1872 Har Shankar Prasad Singh executed a simple mortgage-bond in favour of one Madho Das for the formidable sum of Rs. 2,50,000. There was no mention of Gauri Shankar Prasad Singh in this bond; but at the same time it is pointed out that the executant did not describe himself as sole and exclusive owner of the property mortgaged. A few months later, on 15th August 1872, Har Shankar Prasad Singh's statement was recorded in mutation proceedings arising out of a sale-deed which he had executed on 29th May 1872, and in that statement Har Shankar Prasad Singh asserted-for the first and last time-that his brother was congenitally blind, deaf, dumb and insane and that the entry of his name in the revenue papers was "nominal"; he claimed to have had exclusive possession on the property sold and asserted that his mother had no right in it. 14. Apparently the above statement was made by Har Shankar Prasad Singh with a view to satisfy his vendees; but soon after this steps were taken by Babuain Narain Kunwar with a view to protect Gauri Shankar Prasad Singh's interest in the joint estate. On 31st July 1874 she applied to the Court of the District Judge praying that she be appointed the guardian of the person of Gauri Shankar Prasad Singh and that her nephew, a man named Dalthaman Singh, be appointed manager of the property under S. 9 of Act 35 of 1858. By that time Gauri Shankar Prasad Singh was admittedly a lunatic, and it was stated in the application that his brother was squandering the property. By that time Gauri Shankar Prasad Singh was admittedly a lunatic, and it was stated in the application that his brother was squandering the property. On 14th August 1874, the Court allowed the application and appointed Babuain Narain Kunwar as guardian of the person of the lunatic under S. 10 and appointed Dalthaman Singh as manager of his property under S. 9 of the Act. On 3rd May 1875 a decree was obtained against Har Shankar Prasad Singh upon the mortgage-bond which he had executed on 25th May 1872 for Rs. 2,50,000 in favour of Madho Das; and the estate was now in serious jeopardy. In his capacity as manager and to protect the interests of the lunatic Dalthaman Singh now began his task of separately managing the half share of Gauri Shankar Prasad Singh in the estate. He took and granted leases and we find that in the years 1875, 1876 and 1877 receipts were separately granted by Har Shankar Prasad Singh and on behalf of Gauri Shankar Prasad Singh. These receipts are printed at pp. 287, 289, 313, 333 and 381 of our paper-book. It will be observed that in each case a separate receipt was given on behalf of each brother for exactly one-halt of the amount received. At pp. 241 to 249 and 755 to 759 there is a series of wajib-ul-arzes renting to different villages. The first of these relates to the year 1872 and it shows that Har Shankar Prasad Singh was realizing rent "collectively" and it states: There is no need of division of profits with respect to 10 anna 8 pie share on account of jointness and close relationship....... 15. This was before the appointment of a guardian and manager for Gauri Shankar Prasad Singh. The remaining wajib-ul-arzes relate to the years 1875 to 1884 and these all show that rents were being separately collected and that revenue was being separately paid by Har Shankar Prasad Singh and on behalf of Gauri Shankar Prasad Singh, As we have already seen, Madho Das obtained a decree for sale on his mortgage of 1872 and in execution thereof he purchased zamindari and house property. Resistance was offered as regards the house property on the ground that Gauri Shankar Prasad had an interest in it and was not bound by the decree. Resistance was offered as regards the house property on the ground that Gauri Shankar Prasad had an interest in it and was not bound by the decree. On 11th December 1875, the auction purchaser applied to the Court for possession against the persons resisting and in that application it was pleaded that Gauri Shankar Prasad Singh was suffering from congenital disability. The application was disallowed. Thereafter Dalthaman Singh began instituting suits on behalf of Gauri Shankar Prasad Singh. In 1878 he instituted a suit on behalf of Gauri Shankar Prasad Singh for a declaration of the latter's title in respect to a moiety of a 6 anna share, for cancellation of a sale deed in respect thereto which had been executed by Har Shankar Prasad Singh on 16th November 1864, in favour of Manohar Lal and for possession. This was Suit No. 714 of 1876. The suit was not contested by Har Shankar Prasad Singh; it was contested by Manohar Lal on the ground that Gauri Shankar Prasad Singh was a congenital lunatic and was congenitally blind, deaf and dumb and was also a cripple. The suit was however decreed on 18th December 1876, the Court holding that upto 1854 at least Gauri Shankar Prasad Singh had not been a lunatic. There was an appeal to this Court, but it was dismissed on 10th August 1877. 16. It will be observed that in this suit Dalthaman Singh sued for recovery of Gauri Shankar Prasad Singh's specific half share in the property which had been sold; he did not sue for avoidance of the sale deed as a whole. The suit was decreed for the specific share claimed. On 23rd May 1877, during the pendency of the appeal in the aforesaid suit, Dalthaman Singh with the permission of the District Judge mortgaged specific properties of Gauri Shankar Prasad Singh for Rs. 37,589 in favour of Manohar Das in order that he might purchase an 8 anna share in five villages which had been purchased at auction by the mortgagee in execution proceedings against Har Shankar Prasad Singh. This mortgage bond is at p. 347 of our paper-book and it will be observed that the whole 16 annas of five villages were mortgaged and fractional shares in eight other villages. 17. This mortgage bond is at p. 347 of our paper-book and it will be observed that the whole 16 annas of five villages were mortgaged and fractional shares in eight other villages. 17. In 1877 Dalthaman Singh instituted seven suits on behalf of Gauri Shankar Prasad Singh against Har Shankar Prasad Singh and the latter's creditors and transferees. These were Suits Nos. 55, 56, 57, 58, 71, 72 and 85. Two other suits-Suits Nos.47 and 51-were instituted against Har Shankar Prasad Singh and Gauri Shankar Prasad Singh as co-defendants. Thus there were nine suits in all and they were consolidated and were disposed of in a single judgment on 11th September 1877. The suits instituted on behalf of Gauri Shankar Prasad Singh were decreed, while the suits instituted against Har Shankar Prasad Singh and Gauri Shankar Prasad Singh were dismissed quoad Gauri Shankar Prasad Singh's share in the property. These suits were in respect to transfers which had been made by Har Shankar Prasad Singh. Har Shankar Prasad Singh put in no appearance in any of these suits, but the defence of the various creditors was that, prior to the death of his father and uncle, Gauri Shankar Prasad Singh had become blind, deaf, dumb, insane and impotent that he was unfit to perform the religious rites of his ancestors and that on that account he was deprived of his right of inheritance and his brother was therefore the owner of the whole property. It will thus be observed that there was no allegation in these suits of congenital lunacy. There was an appeal to the High Court, which was dismissed on 18th December 1878. It was held by this Court that lunacy had supervened after the death of the father and uncle of Gauri Shankar Prasad Singh and that he was not disqualified. 18. That same year a money suit was brought against the two brothers, but it was decreed on 20th February 1878 against Har Shankar Prasad Singh only and was dismissed as against Gauri Shankar Prasad Singh, the two brothers being apparently regarded as separate from each other. In 1879 a suit was instituted on behalf of Gauri Shankar Prasad Singh-Suit No. 40 of 1879-against Har Shankar Prasad Singh and others for possession of property which bad been sold by Har Shankar Prasad Singh on 22nd April 1867 and the suit was decreed with mesne profits. In 1879 a suit was instituted on behalf of Gauri Shankar Prasad Singh-Suit No. 40 of 1879-against Har Shankar Prasad Singh and others for possession of property which bad been sold by Har Shankar Prasad Singh on 22nd April 1867 and the suit was decreed with mesne profits. In this same year, that is to say 1879, Har Shankar Prasad Singh's share in the estate in certain districts was taken out of his hands. There is a rubkar of the Collector of Ghazipur, dated 8th October 1879, which shows that the whole share of Har Shankar Prasad Singh in the Districts of Ghazipur and Azamgarh was taken over for management by the revenue department under S. 326, Civil P.C., (Act 10 of 1877). There was at that time no Court of Wards Act, but Chap. VI, Land Revenue Act (19 of 1873) conferred upon the Board of Revenue the powers of a Court of Wards and it is alleged on behalf of the appellants that these powers were applicable to a case where the property of a person had been placed under the charge of the Collector under S. 326, Civil P.C. This allegation is contested on behalf of the respondents. 19. On 5th September 1879, that is to say about a month before the Collector took over the estate of Har Shankar Prasad Singh, the latter leased 19 bighas of land to a certain person and on 22nd January 1880 Dalthaman Singh applied to the Court for permission to lease the corresponding 19 bighas belonging to Gauri Shankar Prasad Singh to the same lessee, and this was granted. This is another illustration of the fact that the share of Gauri Shankar Prasad Singh was being dealt with as separate property, and it is also relied upon as showing that Har Shankar Prasad Singh was separately dealing with his own share of the estate; but the admissibility of this recital is at least open to doubt. There was a similar application on 12th March 1880. On 1st October 1880 one Baij Nath Prasad executed a mortgage-deed in favour of Gauri Shankar Prasad Singh through Sarju Narain Singh, who was then the manager of the estate of Gauri Shankar Prasad Singh, Dalthaman and Babuain Narain Kunwar being by that time dead. There was a similar application on 12th March 1880. On 1st October 1880 one Baij Nath Prasad executed a mortgage-deed in favour of Gauri Shankar Prasad Singh through Sarju Narain Singh, who was then the manager of the estate of Gauri Shankar Prasad Singh, Dalthaman and Babuain Narain Kunwar being by that time dead. This, so far as the record shows, was the last act of management performed under the provisions of the Lunacy Act. Soon afterwards the estate of Gauri Shankar Prasad Singh was placed by the District Judge under the Court of Wards. The lunatic's wife, Babuain Jodha Kunwar, appealed against this order to the High Court, but her appeal appears to have been subsequently converted into an application under cl. 12, Letters Patent. The application was ejected by this Court on 13th December 1881 on the ground of want of jurisdiction. Thereafter, the estate of Gauri Shankar Prasad Singh was formally assumed by the Court of Wards, as is evidenced by a letter, dated 22nd December 1881, from the Secretary of the Board of Revenue to the Commissioner of Benares. Thus the share of one brother was under the control of the Collector (who acted, whether legally or otherwise, under the Court of Wards) and the share of the other brother was directly under the Court of Wards, and each share was managed as a separate estate. In the letter above referred to, it will be observed that provision was to be made for a separate budget in respect to the estate of Gauri Shankar Prasad Singh. On 16th June 1882, the Court of Wards through the Collector filed an application for the perfect partition of taluqa Umarganj on behalf of Har Shankar Prasad Singh against Gauri Shankar Prasad Singh. The applicant was shown as Har Shankar Prasad Singh, through the Collector of Ghazipur, Manager of the Court of Wards, and the opposite party was shown as Gauri Shankar Prasad Singh, insane, through the Collector of Ghazipur, Manager of the Court of Wards, and it was stated in the application that for a long time rents had been separately collected by reason of a private partition. This was partition case No. 12 of 1882. This was partition case No. 12 of 1882. In 1883 there was apparently another application of the same character, for we find a rubkar of the revenue Court dated 3rd January 1883 which shows that, in respect to the application for partition of certain villages in pargana Zamania, Gauri Shankar Prasad Singh was required to pay his half share of the stamp duty. 20. There were also other partitions, for at p. 389 et seq there is a list of trees, houses and plots which had been partitioned in the abadi of Qadirpur in the district of Allahabad and these lists were signed inter alia by a karinda of Gauri Shankar Prasad Singh. The partition of taluqa Umarganj, case No. 12 of 1882, was sanctioned by the Collector on 24th July 1883 and there is a jama goshwara of that same date in which the amount of jama for each of the two brothers is separately stated. Taluqa Umarganj was apparently comprised of several villages and we find that separate entries were made in respect to each brother in the khataunis of 1883 of these various villages: vide pp. 787, 789, 791, 793, 795 and 811 and the same is the case as regards enumeration of houses: vide pp. 797, 895 and 807. We also find that qabuliyats were separately executed in respect of land in each of the two estates: vide pp.417 and 421. On 27th March 1884, Babuain Jodha Kunwar applied to the Court of Wards asking them to utilize income from her husband's estate towards payment of the debts of Har Shankar Prasad Singh and she requested that a charge be imposed on the latter's estate for the amount so spent. There is also a rubkar dated 30th November 1886 of the revenue Court at Ghazipur, which shows that Har Shankar Prasad Singh had himself applied in that year for the liquidation of his debts out of the surplus income of the estate of Gauri Shankar Prasad Singh. These applications were disallowed. 21. Apparently Har Shankar Prasad Singh was getting a small allowance of Rs. 50 from his own estate and also an allowance of Rs. 50 from his brother's estate, and on 22nd March 1888, the Collector of Ghazipur wrote to the Commissioner recommending in strong terms that an in crease of Rs. These applications were disallowed. 21. Apparently Har Shankar Prasad Singh was getting a small allowance of Rs. 50 from his own estate and also an allowance of Rs. 50 from his brother's estate, and on 22nd March 1888, the Collector of Ghazipur wrote to the Commissioner recommending in strong terms that an in crease of Rs. 50 be allowed to Har Shankar Prasad Singh from the income of his brother's estate. The letter was inspired by an application which the Collector had received from Har Shankar Prasad Singh, himself and this was forwarded to the Commissioner. It is not before us, probably, it no longer exists. The letter also shows that the estate of Gauri Shankar Prasad Singh yielded an annual profit of Rs 20,000 and our attention is drawn to the fact that the amount asked for by the Collector for Har Shankar Prasad Singh out of this large annual profit of his brother's estate was only Rs. 50. In this connexion we have been referred to the evidence of Har Shankar, a witness for the plaintiffs, who was the head clerk of the Court of Wards at Ghazipur from 1900 to 1902 and from 1903 to 1904. His evidence shows that Babuain Jodha Kunwar herself received an allowance which varied between Rs. 700 and Rs. 2000 a month. This witness also states that Babuain Jodha Kunwar asked the Court of Wards for a sum of Rs. 5000 from the income of her husband's estate for the treatment of Har Shankar Prasad Singh's eyes; but the application was refused on the ground that Har Shankar Prasad Singh was himself not a ward and that the estate was in debt. Witness says that when she received this reply, Babuain Jodha Kunwar remarked that "they (i.e., she and the lunatic) and Har Shankar Prasad Singh were not two persons." We have no documentary evidence as regards this alleged request for Rs. 5000 on the part of Babuain Jodha Kunwar for the benefit of Har Shankar Prasad Singh. 22. In 1889, Har Shankar Prasad Singh adopted a son. The deed of adoption was executed on 20th July 1889 and the adopted boy Gopal Saran Singh who as will appear from the pedigree is a descendant of Bishun Dat Singh, the brother of Deoki Nandan Singh. 22. In 1889, Har Shankar Prasad Singh adopted a son. The deed of adoption was executed on 20th July 1889 and the adopted boy Gopal Saran Singh who as will appear from the pedigree is a descendant of Bishun Dat Singh, the brother of Deoki Nandan Singh. It is mentioned in this deed of adoption that Gauri Shankar Prasad Singh was a lunatic, hut at the same time the document contemplates the possibility of his having a eon. We now come to some more partitions of zamindari property. On 3rd October 1891 the Collector applied for partition of Katra - which is described as a mahal, but which apparently contained several villages. Each of the two brothers was represented in that proceeding by the Collector of Ghazipur and it was stated in the application that each brother should be the exclusive owner of the sir land, groves, houses, etc., which might be allotted to him. This was partition case No. 18 of 1892 (or perhaps 1891), and there was a similar application dated 22nd February 1892 in respect to Gadora-partition case No. 12 of 1892. These partitions were confirmed by the revenue Court on 11th March 1892 and 11th August 1892 respectively. We have also been referred to the khewats of 1890-1891 of The lokour and Satawar. In the first of these each of the two brothers is separately recorded and the revenue and cesses are separately apportioned. In the khewat of Satawar Gauri Shankar Prasad Singh is shown as owning the whole 16 annas. On 20th November 1891 the taluqas of Har Shankar Prasad Singh in Umarganj in Osia were purchased at auction by the Court of Wards on behalf of Gauri Shankar Prasad Singh. 23. We now come to the year 1897. By that time what remained of the property which was regarded as Har Shankar Prasad Singh's estate had been released by the Court of Wards, and on 19th June 1897 Har Shankar Prasad Singh and his adopted son Gopal Saran Singh executed a sale deed in respect to 79 villages in favour of Gauri Shankar Prasad Singh under the Court of Wards. The consideration was Rs. 2,12,531-4-9 plus an annuity of Rs. 4180 to be paid to Har Shankar Prasad Singh during his life time and thereafter to his widow and Gopal Saran Singh and ultimately to the survivor of them. The consideration was Rs. 2,12,531-4-9 plus an annuity of Rs. 4180 to be paid to Har Shankar Prasad Singh during his life time and thereafter to his widow and Gopal Saran Singh and ultimately to the survivor of them. The property sold included the 16 anna interest in ten villages in Mahal Katia which had gone to Har Shankar Prasad Singh by partition in case No. 18 of 1892. After this Har Shankar Prasad Singh had no property left to him except the annuity but his debts were finally liquidated. The amount of Rs. 2,12,531-4-9 admittedly represented the sum total of the debts outstanding against him and they were paid by the Court of Wards. Lachman Prasad, a witness for the respondents, purports to have scribed this sale deed by which he presumably means that he made a fair copy of the draft which had come from the Legal Remembrancer's office. He used to be the second accountant in the office of the Court of Wards. He says that Har Shankar Prasad Singh wanted to have his debts paid out of the income of the joint estate, but the Collector insisted on this sale deed. Incidentally I may mention that this witness has stated-falsely, as it appears-that the income of the whole estate was jointly collected by the Court of Wards. 24. Gauri Shankar Prasad Singh died in August 1902 and Har Shankar Prasad Singh died on 16th June 1903. After the death of Gauri Shankar Prasad Singh, the Court of Wards continued to manage his estate on behalf of his widow, Babuain Jodha Kunwar. Har Shankar Prasad Singh made no claim, although he had no property left in his possession and had an adopted son. Gopal Saran Singh died a few months after his adoptive father, on 24th November 1903; but no mutation was made on behalf of his widow, Babuain Shiam Dulari Kunwar. Gopal Saran Singh's posthumous son was born on 15th May 1904; but no steps were taken to have his name mutated during his brief span of life. He died on 6th August 1905. Babuain Shiam Dulari Kunwar lived until 1935, but she made no effort to obtain possession of the estate. Gopal Saran Singh's posthumous son was born on 15th May 1904; but no steps were taken to have his name mutated during his brief span of life. He died on 6th August 1905. Babuain Shiam Dulari Kunwar lived until 1935, but she made no effort to obtain possession of the estate. The explanation offered by the respondents is that after the death of her husband she took in religion; but it is pointed out on behalf of the appellants that she had a daughter, who gave birth to two sons and that she took possession of property which was conveyed to her in 1923. 25. There can be no doubt that after the lunatic's death the estate was being held by the Court of Wards on behalf of Babuain Jodha Kunwar - vide the judgment dated 12th December 1902 in civil Appeal No. 46 of 1902, page 495, the plaint dated 29th June 1903, page 497, the revenue decree of 31st March 1904, page 509, and the lease of the special manager dated 5th January 1915, page 525; and her name was recorded in the khewats - vide the khewats of Sarai Gopal, Usia and Basantpur for 1903-04, pages 199, 709 and 834. After Gopal Saran Singh's death Babuain Jodha Kunwar applied to the board of revenue for money for his funeral expenses, and a sum of Rs. 7000 was sanctioned on 19th January 1904. Some years later she, and not Babuain Shiam Dulari Kunwar, performed the marriage of Babuain Raj Kunwar and there is a letter from the board of revenue, dated 26th March 1912, sanctioning the expenditure of Rs. 15,000 for this purpose. On 11th November 1914, a sum of Rs. 10,000 was sanctioned for the gauna ceremony of Babuain Raj Kiahori Kunwar. These orders of sanction were in favour of Babuain Jodha Kunwar. There is a report of the Court of Wards for the year ending 30th September 1920 which shows that the estate was released on 1st October 1920, and in that report Babuain Jodha Kunwar is described as the proprietor with a life interest. 26. Whatever the legal effect of all the above documents may be, they show at least that the Court of Wards held the estate on behalf of Babuain Jodha Kunwar as having a life interest in it as the widow of Gauri Shankar Prasad Singh. 26. Whatever the legal effect of all the above documents may be, they show at least that the Court of Wards held the estate on behalf of Babuain Jodha Kunwar as having a life interest in it as the widow of Gauri Shankar Prasad Singh. On 8th October 1920, after the release of the estate, Babuain Jodha Kunwar executed a power of attorney in which she stated that she had been in proprietary possession of the estate since its release. During all these years there was no assertion of claim either by Babuain Dulari Kunwar or her daughter. On the contrary they both accepted a conveyance of property from Babuain Jodha Kunwar. A deed of transfer was executed by the latter on 4th September 1923 in favour of Babuain Shiam Dulari Kunwar; and this instrument was also executed by defendants 1 and 2 in token of acquiescence. It was stipulated therein that on the death of the transferee the property should revert to the estate of Gauri Shankar Prasad Singh. The khewat of 1924 shows that the transferee took possession of some at least of the property, and it is admitted that in fact she took possession of the whole; and after her death possession was admittedly taken by defendants 1 and 2. On the same date a deed of gift was executed by the same persons in favour of Babuain Raj Kishori; but this was in perpetuity, presumably because she had two sons. The khewat of 1924 shows that she took possession of village Unchera. This was in pursuance of an application for mutation dated 6th September 1923. On the previous day a deed of gift had been executed in favour of Babuain Jodha Kunwar's nephews, defendants 3 and 4. 27. The above deeds of conveyance were executed in pursuance of the tamliknama dated 3rd September 1923, in which Babuain Jodha Kunwar agreed inter alia not to transfer any other properties and also agreed not to spend more than a certain amount on charity. It was also stipulated that defendants 1 and 2 should each receive an annual allowance of Rs. 2400. On 6th February 1925 defendant 7 sued for a declaration that the aforesaid conveyances would be null and void as against the "real reversioner" after the death of Babuain Jodha Kunwar. Among the defendants to the suit was Babuain Shiam Dulari Kunwar, and she contested it. 2400. On 6th February 1925 defendant 7 sued for a declaration that the aforesaid conveyances would be null and void as against the "real reversioner" after the death of Babuain Jodha Kunwar. Among the defendants to the suit was Babuain Shiam Dulari Kunwar, and she contested it. On 11th November 1925 the Court upheld the gift in favour of the Sanskrit School, but declared the other conveyances to be not binding except upon defendants 1 and 2 to the present suit. Babuain Jodha Kunwar died on 11th August 1932. On 30th September 1933 defendants 1 and 2 obtained mutation of their names after contest by defendant 7, who claimed a one-third share, and this order was affirmed in appeal and in second appeal. The suit out of which this appeal has arisen was instituted on 27th April 1936. Wherever I have mentioned in the foregoing portion of the judgment the "estate" of Gauri Shankar Prasad Singh or his "share" In the ancestral estate I must be understood as referring to the property which was being managed as his estate, for the respondents contend that owing to disqualification Gauri Shankar Prasad Singh had no interest in the ancestral estate. 28. Having set out this bare and unadorned statement of facts and events from 1846 to 1935, I will now proceed to consider the various matters which are in controversy between the parties to this appeal. But I must first mention certain concessions which have been made by Mr. Das, senior counsel for the respondents, who came here from Patna to argue the case for his clients. He conceded that Gauri Shankar Prasad Singh was not a congenital lunatic and was not congenitally deaf, dumb and blind, that he acquired an interest at birth and that his disability supervened later. Mr. Das also conceded that Har Shankar Prasad Singh devised no "scheme" as alleged in the plaint for saving the property for his own benefit. This was, however, the respondents' case as set up in their plaint, and possibly the concession may have been made in order to avoid the objection that no one can take advantage of his own fraud. The arguments in this appeal went on for many weeks and ultimately Mr. Das had to return to Patna. Arguments on behalf of the respondents were then continued by Mr. P.L. Banerji. The arguments in this appeal went on for many weeks and ultimately Mr. Das had to return to Patna. Arguments on behalf of the respondents were then continued by Mr. P.L. Banerji. The connected appeal-Appeal No. 14 of 1988-was argued on behalf of the respondents to this appeal by Dr. Katju. He did not accept the second concession which had been made by Mr. Das; he said that there was in fact a "scheme" in the sense that the various applications and suits were inspired by Har Shankar Prasad Singh, but he contended that it was in all respects a bona fide plan and that Har Shankar Prasad Singh had no intention of defrauding his creditors. As we have already seen, Har Sbankar Prasad Singh alienated portions of the ancestral property and if he thereafter devised a plan whereby the creditors were deprived of a moiety of the property which he had conveyed to them for consideration or which had been sold by them at auction in execution of decrees against Har Shankar Prasad Singh, it is somewhat difficult to understand how, having regard to the allegation that his brother had no interest in the ancestral estate, there can have been no element of fraud on the part of Har Shankar Prasad Singh. It was further conceded on behalf of the respondents that the manager of the property of Gauri Shankar Prasad Singh dealt with it as a separate and divided share and that subsequently the Court of Wards dealt in similar fashion with the respective shares of the two brothers. But it is contended that although there may have been a division in fact of the ancestral estate, it was for convenience of management only and had no legal effect to bring about either a severance of status or a division of title. It is said that by the statutory acts of the manager and of the Court of Wards Har Shankar Prasad Singh was forced into a position of de facto separation in which the share to which his brother would have been entitled on partition, if sane, was separately possessed and administered on his behalf, but there was no legal severance of status or division of title. 29. A formidable mass of authorities have been cited before us going back from 1941 to Manu, the ancient law-giver. 29. A formidable mass of authorities have been cited before us going back from 1941 to Manu, the ancient law-giver. All these authorities have some relevance; otherwise they would not have been relied upon by the eminent counsel who have appeared before us. And all of them afford a useful background against which to view the points in controversy; but I only propose to mention such of them as appear to me to afford direct assistance on behalf of one party or the other in determining the interesting questions of law which are in dispute. The first question which I shall consider is the legal position of a Hindu lunatic vis-a-vis the coparcenary estate. It is now a matter of admission that Gauri Shankar Prasad Singh was not born disqualified; it is conceded that his disability supervened at the age of 16 or 17 as a result of an attack of smallpox. The year of this supervening disability has been stated somewhere in the evidence as 1859, when Gauri Shankar Prasad Singh was 17 years of age, and this may be accepted as approximately correct. I may mention here that Sir Tej Bahadur Sapru on behalf of appellants 1 and 2 has accepted the position that at or about that time Gauri Shankar Prasad Singh became a lunatic. Mr. Malik who appears for appellants 4 and 5, has, however, contended that the unsoundness of mind of Gauri Shankar Prasad Singh was not such as to create a legal disability under the Hindu law. I shall deal with this contention at a later stage. For the present. I shall assume that Gauri Shankar Prasad Singh was a lunatic. In Max Muller's "Law of Manu" in the "Sacred Books of the East" series, Vol. 25, p. 373, para. 201 says: Eunuchs and outcastes, persons born blind and deaf, the insane, idiots and the dumb....receive no share. 30. Paragraph 202 reads: But it is just that a man who knows the law should give even to all of them food and raiment without stint according to his ability; he who gives it not will become an outcasts. 31. In the translation of the Mitakshara by Macnaghten and Colebrook, Chap. 2, S. 10 deals with exclusion from inheritance. 30. Paragraph 202 reads: But it is just that a man who knows the law should give even to all of them food and raiment without stint according to his ability; he who gives it not will become an outcasts. 31. In the translation of the Mitakshara by Macnaghten and Colebrook, Chap. 2, S. 10 deals with exclusion from inheritance. Verse 140 reads as follows: An impotent person, an outcaste and his issue, one lame, a mad man, an idiot, a blind man and a person afflicted with an incurable disease as well as others similarly disqualified must be maintained; excluding them, however, from participation. 32. In placitum 5 we read: These persons (the impotent man and the rest) are excluded from participation. They do not share the estate. They must be supported by an allowance of food and raiment only: and the penalty of degradation is incurred if they be not maintained. 33. Placitum 6 says: They are debarred of their shares if their disqualification arose before the division of the property. But one already separated from his coheirs is not deprived of his allotment. 35. Placitum 7 provides that: If the defect be removed by medicaments or other means....at a period subsequent to partition, the right of participation takes effect..... 36. The Privy Council has observed that the Mitakshara "is universally accepted by all the schools, except that of Bengal, as of the highest authority and in Bengal is received also as of high authority, yielding only to the Dayabhaga on those points where they differ." 37. In ('82) 8 Cal. 919, Ram Soonder Roy v. Ram Sahye Bhugut it was held that a lunatic who is a member of a joint Mitakshara family cannot sue to recover property belonging to the joint family for the reason that he is disqualified from inheritance and therefore entitled to no share or partition in the property, but only to maintenance. At p. 149 of this volume ('82) 8 Cal. 149 : 9 C.L.R. 457, Ram Sahye Bhugut v. Lalla Laljee Sahaye there is another case relating to the same lunatic in which the same view had been taken. It was held that a coparcener who had become insane while in possession would lose his share on partition. The next case which I shall mention is from Madras. This is ('20) 7 AIR 1920 Mad. It was held that a coparcener who had become insane while in possession would lose his share on partition. The next case which I shall mention is from Madras. This is ('20) 7 AIR 1920 Mad. 652 : 55 I.C. 576 : 43 Mad. 464 : 38 M.L.J. 291, Muthusami Gurukkal v. Meenammal, where it was held that the right of a member of a joint Hindu family to share in ancestral property comes into existence at birth and is not lost, but is only in abeyance, by reason of a disqualification; it subsists all through, although it is incapable of enforcement at the time of partition if the disqualification then exists. It was further head that if, on the death of all the other members, the disqualified member becomes the sole survivor, he takes the whole property by survivorship. The same view was taken by the Patna High Court in Masammat Dilraj Kuari Vs. Rikheswar Ram Dube and Others, AIR 1934 Patna 373 and also by the Bombay High Court in ('36) 23 AIR 1936 Bom. 191 : 163 I.C. 129 : 38 Bom. L.R. 257,Vithaldas Govindram v. Vadialal Chhaganlal. 38. We now come to a Full Bench decision of our own Court, which is Mool Chand Vs. Mt. Chahta Devi and Another It was there held that a person who had not been a leper from birth, but was afflicted with leprosy of a sanious or virulent type at the time of his father's death and had previously acquired an interest in the joint ancestral property by his birth along with his brothers, would not be divested of such interest, though he would be disqualified from claiming a partition of his share or claiming an allotment of his share at the time of partition so long as his leprosy lasts. It was further held that if the leper becomes the sole survivor, he acquires the whole estate by survivorship if there has been no partition in the meanwhile. It was held that such disqualification is personal and temporary. An attempt has been made to differentiate the last named case on the ground that the person concerned was a leper and not a lunatic; but there is no force in this contention. The learned Judges referred to a number of cases relating to a person who was a lunatic and they followed inter alia ('20) 7 AIR 1920 Mad. An attempt has been made to differentiate the last named case on the ground that the person concerned was a leper and not a lunatic; but there is no force in this contention. The learned Judges referred to a number of cases relating to a person who was a lunatic and they followed inter alia ('20) 7 AIR 1920 Mad. 652 : 55 I.C. 576 : 43 Mad. 464 : 38 M.L.J. 291, Muthusami Gurukkal v. Meenammal, and the other decisions which I have mentioned above. In my opinion, the decision of our Full Bench is in all respects applicable to the case of a lunatic and is conclusive of the fact that a lunatic coparcener cannot claim a share at partition so long as his disability subsists. His interest in the estate is there, but is dormant. In ('88) 10 All. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.), Sartaj Kuari v. Deoraj Kuari, there is the following dictum of the Privy Council: The property in the paternal or ancestral estate acquired by birth under the Mitakshara law is in their Lordships' opinion so connected with the right of a partition that it does not exist where there is no right to it. 39. Learned counsel for the appellants relied on Ram Narain Sahu and Another Vs. Mt. Makhna, AIR 1935 All 875 and he points out that this decision was affirmed in appeal by the Privy Council in AIR 1939 174 (Privy Council) But this question was not argued before the Board and their Lordships affirmed the decision of this Court "upon the artificial assumption that a lunatic (if not a lunatic from birth) is entitled to a share upon partition." They also say that "there exists high authority in India for the view that he has no such right." They were referring to the Full Bench decision of this Court. It is thus clear that this authority does not assist the respondents in any way. So far therefore the position is clear. A person who has become a lunatic is debarred from claiming his share by partition and is not entitled to claim a share when the coparcenary estate is partitioned; but his right is not extinguished, and he succeeds by survivorship if he finds himself the last coparcener. So far therefore the position is clear. A person who has become a lunatic is debarred from claiming his share by partition and is not entitled to claim a share when the coparcenary estate is partitioned; but his right is not extinguished, and he succeeds by survivorship if he finds himself the last coparcener. Learned counsel for the appellants, however, pleads that there is no authority for the proposition that a lunatic cannot claim his share through a guardian or manager, and he invokes the analogy of a minor, who can sue for partition through a next friend and may have his share divided off if the Court is of opinion that it is for his benefit; and he also points out that O. 32, Civil P.C., is equally applicable to lunatics and minors. As to O. 32, this merely contains procedural rules; they are applicable to a lunatic where the latter is competent to sue, but they can have no application where he is not so competent. It seems to me that the short answer to this contention is that a minor is qualified for partition while a lunatic is disqualified. If the lunatic is himself disqualified, how can a guardian or manager obtain for him what he is not qualified to obtain for himself? Guardians were not unknown to the ancient law: vide Ganganath Jha's "Hindu Law and its Sources," Vol. 1, p. 56, paras. 45, 46 and 48. If therefore it had been contemplated that a lunatic might claim his share through a guardian, we should have expected some text on the subject; but there is none. It is contended on behalf of the appellants that the appointment of a guardian and a manager operated ipso facto as a separation between the two brothers and reliance is placed on L. Jagannath Prasad and Others Vs. Chunni Lal and Others in witch Mukerji and Bennet JJ. observed: It is well established law that if a family remains joint, it is not open to the District Judge to appoint a certified guardian for the minor members for their shares of joint family property. Therefore, we must assume that the appointment of a certified guardian implies that ipso facto the minor members are being separated from the adult members. 40. Therefore, we must assume that the appointment of a certified guardian implies that ipso facto the minor members are being separated from the adult members. 40. It is pointed out that this decision was affirmed in appeal by the Privy Council: vide AIR 1939 200 (Privy Council) The decision was certainly affirmed, but there was no discussion as to whether the appointment of a guardian of the interest of a minor in the coparcenary estate would ipso facto imply a separation of status; and in any case I have already rejected the analogy of minors, and for reasons which I shall state I am of opinion that the manager of a lunatic-assuming that he can be legally appointed in respect to the lunatic's interest in the coparcenary property-is not competent to effect a partition on behalf of the lunatic, which is forbidden by Hindu law. Learned counsel for the appellants pleads that Dalthamman Singh as a statutory manager was competent to sue for partition under S. 14 of Act 35 of 1858, which provides; "every manager of the estate of a lunatic appointed as aforesaid may exercise the same powers in the management of the estate as might have been exercised by the proprietor if not a lunatic; and may collect and pay all just claims, debts and liabilities due to or by the estate of the lunatic. But no such manager shall have power to sell or mortgage the estate or any part thereof, or to grant a lease of any immovable property for any period exceeding five years, without an order of the civil Court previously obtained." 41. Founding upon these provisions, learned counsel contends that they override the personal law and that the manager had full power to seek a partition on behalf of the lunatic, and he contends that the decrees which Dalthamman Singh obtained did indeed effect a partition quoad the properties concerned. I shall deal later with these decrees when I consider the question of res judicata; but I have no doubt in my mind that the Legislature never intended that a manager appointed under S. 9 of the Act should be competent to interfere with the personal law of a lunatic member of a joint Hindu family. I shall deal later with these decrees when I consider the question of res judicata; but I have no doubt in my mind that the Legislature never intended that a manager appointed under S. 9 of the Act should be competent to interfere with the personal law of a lunatic member of a joint Hindu family. This is of course on the assumption that a. manager can legally be appointed for the property of a lunatic coparcener having no separate estate which is at least open to doubt. As regards minors, we have the authority of the Privy Council in ('03) 25 All. 407 : 30 I.A. 165 : 8 Sar. 483 (P.C.), Gharib-Ullah v. Khalak Singh. At p. 416 their Lordships say: It has been well settled by a long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family. And, in their Lordships' opinion, those decisions are clearly right, on the plain ground that the interest of a member of such a family is not individual property at all, and that therefore a guardian, if appointed, would have nothing to do with the family property. 42. In ('12) 23 M.L.J. 706 : 17 I.C. 473 : 1913 M.W.N. 79, Govindan Nair v. Narayanan Nair a Bench of the Madras High Court took this same view in respect to the appointment of a manager under Act 35 of 1858. At p. 477 Sadasiva Aiyar J. observes: I am, therefore, clear that Act 35 of 1858 was not intended to authorise Courts to entertain proceedings under it in respect of an alleged lunatic who is a member of a Malabar tarwad, or of a joint Hindu family and owns no separate property. 43. The same view was taken by the Patna High Court in ('19) 6 AIR 1919 Pat. 482 : 49 I.C. 907, Parma Dube v. Mahadeo Singh where it was held that the guardian of the property of a lunatic cannot be properly appointed in respect of the lunatic's interest in the estate of an undivided Mitakshara family, the reason being that no outsider can be allowed to intermeddle with the property and affairs of a joint Hindu family merely by being appointed the guardian of an incompetent member of that family. In support of their view the learned Judges at p. 909 cited ('03) 25 All. 407 : 30 I.A. 165 : 8 Sar. 483 (P.C.), Gharib-Ullah v. Khalak Singh from which I have already quoted a passage and which was concerned with the appointment of the guardian of a minor's property. As regards a lunatic coparcener, however, some High Courts have expressed the view that a manager can be appointed in respect to his interest in the coparcenary property. For the purposes of this appeal I do not think it is necessary to express any final opinion on the subject, for I have already said that, whatever a manager may or may not do, he is not competent to interefere with the personal law by which the lunatic is governed. The decrees against Har Shankar Prasad Singh could not operate as a partition on behalf of the lunatic when the lunatic was debarred from participation by his personal law. 44. In my judgment, for the reasons which I have given, no partition was effected on the part of the lunatic by the decrees which were obtained by the manager appointed under the Lunacy Act. I will now consider Mr. Malik's plea that Gauri Shankar Prasad Singh is not proved to have suffered from such a degree of unsoundness of mind as would exclude him from his share of the coparcenary property. In the various suits which were instituted by Dalthaman Singh and in many other documents Gauri Shankar Prasad Singh was described as "insane" and for what it may be worth, there is the evidence of several witnesses for the respondents that he used to beat his head with his hands, tear his clothes and even bite the servants and that he could not stand up without support. We have not been referred to any evidence in rebuttal. Defendant 1 says: So far as I recollect he was very weak of intellect, his sight was also very weak, he was hard of hearing and he talked in such a manner that his attendants only could understand him and no outsider could follow what he said. 45. Further on he says: .....subject to what I have already stated he was deaf, dumb, blind and fatr-ul-aql (of unsound mind) at the time of his death and I saw him in this condition since the time I saw him first. 45. Further on he says: .....subject to what I have already stated he was deaf, dumb, blind and fatr-ul-aql (of unsound mind) at the time of his death and I saw him in this condition since the time I saw him first. Gauri Shankar Prasad Singh was found by inquisition to be a lunatic, which means that he was regarded by the Court as incapable of protecting his own interests. As I shall show in another connexion Gauri Shankar Prasad Singh was found by the Court in 1876 to be capable of understanding simple words of command, but I think we must hold him to have been an insane person in the sense that he was debarred from participation in the ancestral estate. We now come to what is perhaps the most difficult question in this appeal, namely whether Har Shankar Prasad Singh remained joint with or separated from his brother and whether the latter acquired title in a moiety share in the ancestral estate. 46. In the written statement of appellants 4 and 5 there was a clear allegation of separation. In the written statement of appellants 1 to 3 also there was an allegation of separation, but it was specifically based on one fact alone and that was the appointment of Babuain Narain Kunwar and Dalthamman Singh as guardian and manager of the lunatic in 1874: vide paras. 4 and 5. When the suit went to trial, however, the defendants based their plea of separation on the six following facts: (1) The appointment of a guardian in 1874. (2). The judgments of 1876 and 1877 upholding the lunatic's claim against the creditors of his brother in respect to a moiety share in the estate. (3) Separate management of the share of the lunatic by the manager and subsequently by the Court of Wards. (4) Applications for partition which were preferred by the Collector in the revenue Court on behalf of Har Shankar Prasad Singh in 1882-1883 and in 1891-1892. (5) The deed of adoption dated 20th July 1889. (6) The sale-deed executed by Har Shankar Prasad Singh and his adopted son on 19th June 1897. 47. The respondents did not specifically avert jointness, but upto para. (5) The deed of adoption dated 20th July 1889. (6) The sale-deed executed by Har Shankar Prasad Singh and his adopted son on 19th June 1897. 47. The respondents did not specifically avert jointness, but upto para. 18(a) of the plaint which contains an alternative plea on the assumption of separation their meaning seems to have been that Gauri Shankar Prasad Singh, though joint in status, had no title to a share in the ancestral property by reason of his disqualification. Sir Tej Bahadur Sapru on behalf of appellants 1 and 2 concedes that upto 1397 at least none of the facta and circumstances on which he relied-except the appointment of a guardian and manager in 1874 - is enough in itself to prove separation, but he contends that an intention to separate must be read into the conduct of the parties from 1874 to the death of Har Shankar Prasad Singh in 1903. In this connexion he relies on various authorities. In Mayne's Hindu Law Edn. 10, p. 556 the learned author says: It is not sufficient that they should alter the mode of holding their property. They must alter and intend to alter their title to it. They must cease to be joint owners and become separate owners... 48. The question however is one of fact to be decided in the light of legal principles as to the cumulative effect of all the circumstances. In Mt. Ram Kali and Others Vs. Khamman Lal and Others it was held by this Court that the intention to separate may be established either by explicit declaration or from a uniform and consistent course of conduct of the parties concerned or other members of the family. There had been an earlier decision by the Privy Council in an appeal from a judgment of this Court and it was held by their Lordships that in that particular case the High Court had erred in considering whether each document was by itself sufficient to rebut the prima facie presumption of jointness; it ought to have taken into account the cumulative effect of all the documents: vide ('09) 31 All. 412 : 3 I.C. 195 : 6 A.L.J. 597, Parbati v. Naunihal Singh. 412 : 3 I.C. 195 : 6 A.L.J. 597, Parbati v. Naunihal Singh. In ('19) 6 AIR 1919 P.C. 91 : 53 I.C. 866 : 15 N.L.R. 165 (P.C.), Amritrao v. Mukundrao their Lordships of the Privy Council observed that: ...it is well established that the unequivocal and unmistakable manifestation by a member of a joint Hindu family, by his words or conduct, of a fixed or determined intention to become separate is sufficient to effect the separation of his title and the severance of his interest, although division of possession or partition by metes and bounds does not take place or though there be no separation in food and dwelling. 49. In AIR 1938 189 (Privy Council) we find the following dictum of the Privy Council: It is by no means a rare thing that a person makes a statement that he is a member of a joint family with his relative, but has reasons of his own for making that statement. It is not his statement, but his actings and dealings with the estate, which furnish a true guide to the determination of the question of the jointness or otherwise. 50. Gauri Shankar Prasad Singh was not in a position to express or entitled to express any volition in the matter and what we therefore have to look at is the acts, omissions and attitude of Har Shankar Prasad Singh. It is his conduct that we have to look at. It is contended that the lunatic's will was replaced by the will of his manager and subsequently by the will of the Court of Wards, but this proposition cannot be accepted; neither the manager nor the Court of Wards was competent to affect in any way his status or the personal law to which he was subject. Thus, it is clear that nothing which was done on behalf of the lunatic would per se effect a separation of status. Whether the decrees which were obtained by his manager will operate as res judicata and whether the partitions which were made by the revenue Court at the instance of the Collector will attract the provisions of S. 233(k), Land Revenue Act-or rather S. 241(f) of the Act then in force - are matters which I shall consider at a later stage. Admittedly, Har Shankar Prasad Singh was a profligate. Admittedly, Har Shankar Prasad Singh was a profligate. So far as our record goes, his extravagance is first evidenced by his mortgage in favour of Madho Das dated 25th February 1872 for a sum of two and a half lakhs of rupees. The village registers show that upto 1874 the two brothers were recorded as joint, and rents are shown as being collected jointly-which of course means that they were all being collected by Har Shankar Prasad Singh. Then came the appointment of Babuain Narain Kunwar as guardian and of Dalthaman Singh as manager and thereafter an alteration was made in the village registers. The two brothers were recorded as separates, rents were separately collected and revenue was separately paid by Har Shankar Prasad Singh on the one side and on behalf of Gauri Shankar Prasad Singh on the other. 51. There can be no doubt that, whether the application of Babuain Narain Kunwar was independently preferred or whether it was inspired by Har Shankar Prasad Singh, as alleged in the plaint, Dalthaman Singh under the warrant of his appointment, treated the lunatic as separate, and dealt with a moiety of the coparcenary property as the lunatic's separate share. He had the necessary alterations made in the village registers, he executed mortgages and leases, he purchased property for the lunatic and he instituted suits to recover the lunatic's share in ancestral property which bad been alienated by Har Shankar Prasad Singh or which had been sold at auction in execution of decrees against the latter. In all these suits he was successful; and in the two suits in which Har Shankar Prasad Singh and his lunatic brother were co-defendants the claim failed in respect to the lunatic's share. In none of these suits did Har Shankar Prasad Singh put in an appearance. It is contended that it was not to his interest to contest the suits inasmuch as, if the suits were dismissed, it would mean that all the property would go to the creditors and nothing would be saved out of his brother's share. It is said that his object was simply to save a half share in the ancestral property. This aspect of the matter I shall consider in its proper place. It is said that his object was simply to save a half share in the ancestral property. This aspect of the matter I shall consider in its proper place. For the present, it is enough to state that he did not eon-test the suits, and in one of them his wife deposed on behalf of her brother-in-law that he was not congenitally disqualified. 52. On 22nd December 1881 the lunatic's half share in the estate or what was conceived to be his half share, was taken over by the Court of Wards; and meanwhile on 8th October 1879 the Collector of Ghazipur, under S. 326, Civil P.C., - Act 10 of 1877 - had taken over property belonging to Har Shankar Prasad Singh. According to a rubkardated 8th October 1879, the property so taken over was in two districts only, Ghazipur and Azamgarh, but there is a report of the Court of Wards dated 30th September 1920 which shows that 213 villages had been taken over in the districts of Allahabad, Benares, Ghazipur and Ballia. Originally Ballia formed part of the Ghazipur District, but was afterwards separated. I think there can be little doubt that in fact whatever property remained to Har Shankar Prasad Singh out of a moiety share in the ancestral estate was at some time or other taken over by the Collector under S. 326 of Act 10 of 1877, and it is admitted that after the sale deed of 19th June 1897 Har Shankar Prasad Singh had no property left. 53. According to learned counsel for the appellant when this property was placed under the Collector, he was governed by the provisions of Chap. 6, Land Revenue Act, 14 of 1873, which contained provisions relating to the Court of Wards. Learned counsel for the respondents objects that the Court of Wards was not legally concerned with this property at all and he bases his objection on S. 193 of the aforesaid Act, which reads as follows: The Board shall have the powers of a Court of Wards for the superintendence of the persons and property of all proprietors of mahals or parts of mahals who are disqualified for the management of their own lands, or who are put under the charge of the Collector of the District by order of a civil Court under the provisions of any Act for the time being in force. 54. 54. Learned counsel pleads that under this section not only the property of the owner, but also his person had to be under the Court of Wards, whereas it was only the estate of Har Shankar Prasad Singh which was handed over to the Collector. I shall presently consider this matter but I may say that, whatever force there may be in the contention, there can be no doubt that the Collector did act under the Court of Wards and it was the Court of Wards which ultimately released his estate in 1896. The last clause of S. 322 of Act 10 of 1877 provided: For the purpose of managing under this section the whole or any part of such property the Collector may exercise all the powers of its owner. 55. There was a similar provision in S. 323(3) of the later Code (Act 14 of 1882). Purporting to act under the powers vested in him, the Collector proceeded to apply to the revenue Court on behalf of Har Shankar Prasad Singh for a perfect partition of various portions of zamindari property. Learned counsel for the respondents objects on the ejusdem generis principle that the Collector had no such power; but the contention need not be considered at this stage. The fact remains that he did effect these partitions; and at the same time the Court of Wards treated the lunatic's estate as entirely separate, and with its own budget. The first application for partition by the Collector as manager of the Court of Wards was preferred on 16th June 1882 and in the application it is stated: The mahal known after the name of the defendant is ancestral property of the parties and collection of rent, etc., from the tenants has been made separately for a long time according to a private partition. Owing to the jointness of the land, 'Sair' items and the groves, etc., however, there arise difficulties in the management thereof. 56. The word 'management' is emphasised by learned counsel for the respondents; but in later applications, as will appear hereafter, it was clearly stated that each party was to have exclusive title in the shares allotted. These partitions through the revenue Court were effected in 1882-1883 and again in 1891-1892. 56. The word 'management' is emphasised by learned counsel for the respondents; but in later applications, as will appear hereafter, it was clearly stated that each party was to have exclusive title in the shares allotted. These partitions through the revenue Court were effected in 1882-1883 and again in 1891-1892. Har Shankar Prasad Singh - who does not appear to have been personally under the Court of Wards-raised no objection and we find that the wajib-ul-arzes and the partition khasras were signed by his own karinda: vide pp. 243, 755-759 and 734 of our paper-book. Har Shankar Prasad Singh was a sane person and we must assume that he knew perfectly what was being done by the Collector on his behalf; in fact the applications for partition at pp. 463 and 467 appear to have been signed on his behalf by his karinda. On 27th April 1884 Babuain Jodha Kunwar, the lunatic's wife, applied to the Court of Wards praying that income from her husband's estate be applied towards the payment of her brother-in-law's debts and that a charge therefor be created on the latter's property. If, as alleged in para. 13 of the plaint this application was inspired by Har Shankar Prasad Singh, it would seem to indicate that the latter recognized the two estates as separate. If not so inspired, it goes to show that Babuain Jodha Kunwar for her part at least did not regard the two estates as joint. 57. Har Shankar Prasad Singh was receiving an allowance of Rs. 50 a month from his own estate and was also being paid Rs. 50 a month from the income of his brother's estate. I have mentioned that on 22nd March 1888 he wrote a letter to the Commissioner, enclosing a petition from Har Shankar Prasad Singh, and strongly recommended that an additional Rs. 50 per mensem be allowed to Har Shankar Prasad Singh from the income of the lunatic's estate. On 7th April 1888, the Board of Revenue directed that an inquiry be made from the lunatic's wife as to whether she had any objection. We do not know what her reply was, but I have little doubt that she readily assented, for she appears to have had an affectionate regard for her brother-in-law, which lasted all his life and subsisted even after his death. We do not know what her reply was, but I have little doubt that she readily assented, for she appears to have had an affectionate regard for her brother-in-law, which lasted all his life and subsisted even after his death. This application which was forwarded by the Collector is relied upon on behalf of the appellants as proving that Har Shankar Prasad Singh looked upon his brother's estate as entirely separate and that it had in fact become separated. The income from the lunatic's estate was Rs. 20,000 per annum and there is evidence to show that his wife was receiving an allowance which ranged between Rs. 700 and Rs. 2000 per mensem, whereas all that Har Shankar Prasad Singh got was Rs. 50 from his own estate and Rs. 50 from the estate of his lunatic brother. 58. There is oral evidence, which on this point may well be true, that Babuain Jodha Kunwar asked the Court of Wards for Rs. 5000 from her husband's estate for the treatment of her brother-in-law's eyes; but this was refused. It is argued on behalf of the appellants that this also goes to show separation of the estate; and the same argument is advanced in respect to a later application by this same lady for Rs. 7000 for the funeral expenses of Gopal Saran Singh and for the marriage expenses of Babuain Raj Kishori Kunwar, the mother of the plaintiffs. But these applications were after the death of the lunatic and after the death of Har Shankar Prasad Singh and his adopted son, and I shall have to deal with them in another connexion. Any way, as regards the sum of Rs. 5000 which Babuain Jodha Kunwar unsuccessfully sought for the treatment of her brother-in-law's eyes, the argument on behalf of the appellants is that if the estate were joint, the money should have been claimed, not by the lunatic's wife, but by Babuain Shiam Dulari Kunwar and as of right; whereas on behalf of the respondents it is argued that the application is indicative of jointness rather than of separation, for it is said that by this application Babuain Jodha Kunwar clearly regarded her brother-in-law as having right to receive money from the lunatic's estate for his personal necessities, I will leave this matter here for the time being and will revert to the life-time of Har Shankar Prasad Singh. On 28th July 1898 he adopted Gopal Saran Singh, who, as will appear from the pedigree, was the son of a member of Bishun Dat Singh's branch. A deed of adoption-which, is also of a testamentary character - was drawn up and each party relies upon it in support of their own case. A translation of this document will be found at p. 443 and it contains the following recital: For our whole life I and my wife shall remain owners of all the household goods, ornaments, articles, houses and moveable and immovable properties and after our deaths our adopted son Babua Gopal Saran Singh shall be the owner of all moveable and immovable properties, household goods, cash, ornaments, clothes and articles, etc....... 59. Further on we read: There is no power to interfere with the will of God and so if by the grace of the Almighty, my wife or my brother B. Gauri Shankar Prasad Singh's wife brings forth an issue, in that case my or my brother's issue shall be the owner of one half of the property left by me and my adopted son aforesaid, shall be the owner of the other half..... 60. On 6th March 1896 the estate of Har Shankar Prasad Singh was released by the Court of Wards. This is proved by a letter from the Collector to the District Judge which, for reasons stated by us, we have admitted in evidence; and on 19th June 1897, Har Shankar Prasad Singh and his adopted son sold 79 villages to the Court of Wards on behalf of his brother in consideration for a sum of rupees 2,12,531-4-9 and an annuity of Rs. 4180 to be paid to Har Shankar Prasad Singh for his life and afterwards to his widow and adopted son jointly, and ultimately to the survivor of them for his or her life. 4180 to be paid to Har Shankar Prasad Singh for his life and afterwards to his widow and adopted son jointly, and ultimately to the survivor of them for his or her life. This sale deed was executed by Har Shankar Prasad Singh and Gopal Saran Singh independently and therefore even if the aforesaid letter were not admitted in evidence, there would be a strong pre sumption that the estate of Har Shankar Prasad Singh had been released; and even if it be held that no such presumption would arise, the permission of the Collector as required by S. 325A of Act 14 of 1882 must be presumed, since the document is an indenture, to which the Court of Wards was a party and is not a deed-poll. Admittedly, Har Shankar Prasad Singh had nothing loft in his possession after the sale except the allowance which was to be paid to him and which was enjoyed by him and by his adopted son for the remainder of their life. 61. After the lunatic's death in 1902, the Court of Wards continued to hold the estate on behalf of his widow. Neither Har Shankar Prasad Singh nor Gopal Saran Singh took any steps to recover the property before the death of the former on 16th June 1903 and the death of the latter on 24th November of the same year. Babuain Shiam Dulari Kunwar similarly kept quiet after the death of her husband, Gopal Saran Singh; she did nothing either before or after the death of the posthumous son who was born to her husband. Not only did she do nothing in the matter of retrieving the property, but in 1923 she accepted a gift of a portion of that estate for her life time from Babuain Jodha Kunwar and appellants 1 and 2. It is contended that the reason why she took no steps to recover the estate from Babuain Jodha Kunwar was that her thoughts turned to religion. This is based on a statement of Lachhman Prasad, a witness for the respondents, who says, "she had no connexion with worldly matter." But her devotion to religion did not restrain her from obtaining mutation in respect to the property which had been gifted to her, and in the same manner Babuain Raj Kishori Kunwar accepted a gift of property and her gift was in perpetuity. Babuain Jodha Kunwar lived upto 1932 and these transfers were never challenged by anyone; and after the death of Babuain Raj Kishori Kunwar the respondents succeeded to the property which had been gifted to her. A suit was brought by defendant 7 for a declaration that the transfers of 1923 were not binding on the "real reversioner" and also for an injunction to restrain Babuain Jodha Kunwar from alienating any part of the Anapur Estate. On 11th November 1925 the Court upheld one only of the transfers which was a gift to a Sanskrit school-but it declared the other transfers as not binding except on appellants 1 and 2. This suit was contested by Babuain Shiam Dulari Kunwar, vide her written statement dated 30th April 1925. 62. After the death of Gopal Saran Singh, the Board of Revenue sanctioned Rs. 7000 for his funeral expenses presumably on the application of Babuain Jodha Kunwar and thereafter large sums of money were sanctioned on the application of Babuain Jodha Kunwar for the marriage expenses of Babuain Raj Kishori Kunwar. Learned counsel for the appellants contends that these acts of Babuain Jodha Kunwar go to indicate separation. He says that if the estate was joint, it was Babuain Shiam Dulari Kunwar who should have applied for these sums of money and he contends that he was under no obligation to do so. Babuain Jodha Kunwar spent these large amounts from the income of the property in which she had a life interest because of her affection for Har Shankar Prasad Singh and the members of his family. As regards this, learned counsel for the respondents says that if the status was not joint, Babuain Jodha Kunwar would never have spent such heavy sums on the funeral expenses of her pauper brother-in-law and on the marriage expenses of Babuain Raj Kishori Kunwar. After the release of the lunatic's estate on 1st October 1920 Babuain Jodha Kunwar executed a power of attorney in which she stated that she had been put in proprietary possession of the estate; and learned counsel for the appellants relies upon this as showing that the lady considered herself to have a widow's estate. After the release of the lunatic's estate on 1st October 1920 Babuain Jodha Kunwar executed a power of attorney in which she stated that she had been put in proprietary possession of the estate; and learned counsel for the appellants relies upon this as showing that the lady considered herself to have a widow's estate. As regards the transfers in pursuance of the tamliknama of 3rd September 1923, the contention of learned counsel for the respondents is that these were all effected through the influence of appellants 1 and 2 for motives of their own and he also says that the latter had their own reason for denying in the written statement the birth of a posthumous son to Gopal Saran Singh. It is conceivable that the appellants-who were signatories to the tamliknama and the various deeds of transfer may have bad some such idea in their mind. They were interested in the property, and it is conceivable that they may have wanted to create evidence of separation, while at the same time keeping Babuain Jodha Kunwar's generosity within bounds by restraining her from making any further alienations: vide the stipulations in the tamliknama. But the acts of Babuain Jodha Kunwar after the release of the estate by the Court of Wards in 1920 and while she was probably under the influence of the appellants are not very important; what we have to see is whether there was a separation between Har Shankar Prasad Singh and his brother at the former's volition which had the effect of passing a moiety of what had originally been the joint ancestral estate to Gauri Shankar Prasad Singh. A point of law which arises in this connection is whether a sane coparcener can separate himself from his insane brother. The learned Judge of the Court below is of opinion that he cannot do so. It was held in ('35) 22 AIR 1935 Mad. 775 : 160 I.C. 624 : 69 M.L.J. 410, Venkateswara Pattar v. Mankayammal that a father can effect a severance of status between himself and his lunatic son. The learned Judge of the Court below is of opinion that he cannot do so. It was held in ('35) 22 AIR 1935 Mad. 775 : 160 I.C. 624 : 69 M.L.J. 410, Venkateswara Pattar v. Mankayammal that a father can effect a severance of status between himself and his lunatic son. This is with reference to the special powers of a Hindu father, but the learned Judges go on to say: Once the conclusion is reached that a disqualified person may be 'coparcener' enough to take by survivorship, there is no reason why we should deny the possibility of such severance of the joint status as would put an end to the right of succession by survivorship. 63. Nothing has been shown to us in support of the proposition that a Hindu coparcener cannot separate himself from a lunatic brother who is not entitled to claim a share. In the translation of the Mitakshara by macnaghten and Colebroke it is stated in Chap. 2, 8. 10, placitum 6: "They are debarred of their shares, if their disqualification arose before the division of the property." This shows that there can be a partition where a member of the family is a lunatic; and there is no apparent reason why this rule should not equally hold good in a family consisting of two brothers only, one of whom is sane and the other a lunatic. The lunatic will always be entitled to maintenance and there is nothing to prevent him from receiving a share of the property in lieu thereof. It is true that placitum 7 says that if the disability is removed after partition "the right of participation takes effect"; but presumably this means that if he is a son, he will be entitled to share with his father. Whatever right it will give to a brother to share in the divided estate, it will apply equally whether there are two brothers in the family or several. There does not appear to be any rule of Hindu law which precludes a sane person from separating himself from his insane brother. 64. Whatever right it will give to a brother to share in the divided estate, it will apply equally whether there are two brothers in the family or several. There does not appear to be any rule of Hindu law which precludes a sane person from separating himself from his insane brother. 64. The first matter which we have to consider is whether we can read into what Har Shankar Prasad Singh did and did not do and into his conduct, and manner of life an intention to separate himself from his brother and an intention that his brother should have a half share of the ancestral estate. There are several witnesses for the respondents who say that the brothers were always joint. These are Bhan Prasad Singh, Darshan Tewari, Jageshwar Lal, Ganpat Singh, Ghasita, Lachhman Prasad, Lal Bahadur Singh and Hari Shankar. The learned Judge has not relied on Bhan Prasad Singh and Ganpat Singh, and as regards the other witnesses it is, I think, apparent from his judgment that he had no very high regard for their credibility and only accepted their evidence where bethought that there was good corroboration. Darshan Tewari says that he was in the service of Har Shankar Prasad Singh for five years and he and three other servants used to look after Gauri Shankar Prasad Singh. Jageshwar Lal was the patwari of village in the District of Ballia and he says that the two brothers used to mess jointly but he only saw them occasionally when he went to Benares for darshan and he admits that he himself never took food with them. He also admits that appellants 1 and 2 obtained a decree for arrears of rent against him. Ghasita says that he used to look after the birds which were kept by Har Shankar Prasad Singh and he was in the service of the family until the death of Gopal Saran Singh and throughout that period his pay was Rs. 8 a month. Lachhman Prasad was the second accountant of the Court of Wards; and so far as I can make out from his evidence, he only saw the two brothers taking food together on one occasion. 8 a month. Lachhman Prasad was the second accountant of the Court of Wards; and so far as I can make out from his evidence, he only saw the two brothers taking food together on one occasion. Hari Shankar was head-clerk of the Court of Wards at Ghazipur from 1900 to 1902 and again from 1903 to 1904 and he says that he once saw the two brothers go off to take their food in the kitchen. He says that when the application of Babuain Jodha Kunwar for Rs. 5000 for the treatment of her brother-in-law's eyes was refused by the Court of Wards on the ground that the estate was in debt and that Har Shankar Prasad Singh was not their ward, she replied that she and her brother-in-law were "not two persons." Lal Bahadur Sigh says that he was in the service of Har Shankar Prasad Singh as a cook. 65. All the above witnesses depose that the two-brothers were joint in board, lodging and worship but there are many documents on the record to which the learned Judge's attention does not appear to have been drawn and which show that Har Shankar Prasad Singh lived at Benares and Gauri Shankar Prasad Singh at Anapur. These documents will so found at pp. 285, 327, 369, 373, 377, 383, 403, 409, 437, 443, 447, 463 and 477. There is also a death certificate which shows that Har Shankar Prasad Singh died at Benares; and Lal Bahadur Singh, one of the witnesses for the respondents, admits that Gauri Shankar Prasad Singh died at Anapur. And it is very natural that the lunatic should have lived separate from his brother, for the Court of Wards always takes a personal interest in its wards and it is highly improbable that, unless prevented by legal action on the part of Har Shankar Prasad Singh, it would have allowed the lunatic and his wife to live with the former's profligate brother. In the circumstances I am unable to accept the oral testimony on behalf of the respondents as regards joint board, lodging and worship. The learned Judge has relied strongly on the fact that the appellants did not produce their books of account. Defendant 1 has stated in cross-examination: During the life time of Gauri Shankar household expenses were noted in deorhi bahi. The learned Judge has relied strongly on the fact that the appellants did not produce their books of account. Defendant 1 has stated in cross-examination: During the life time of Gauri Shankar household expenses were noted in deorhi bahi. The accounts were kept on similar lines by Jodha Kunwar after the death of Gauri Shankar. I cannot say if puja expenses were noted in the bahi. I do not know what sort of expenses were noted therein. 66. Further on he says: I cannot say if Jodha Kunwar took pretty good care for the preservation of every paper. After her death all the estate papers in her office at Benares came into my hands. I bad not taken the trouble to find out whether the deorhi bahis current or old, were in those papers. 67. On the following day he was again questioned about these papers and he said: The old papers produced by me were found in the record room of the Anapur Estate. This record room is at Anapur. I got these papers after the death of Jodha Kunwar when the estate came into my possession. I did not find any accounts either prior to 1874 or of subsequent period in the record room. I cannot say if Har Shankar was in possession of any estate papers. 68. From this statement, if true, it would appear that some accounts were filed by this defendant, but none of the learned counsel who have appeared in this appeal know anything about them. Learned counsel for the appellants has referred us to ('15) 2 AIR 1915 P.C. 96 : 30 I.C. 299 : 37 All. 557 : 42 I.A. 202 (P.C.), Bilas Kunwar v. Desraj Ranjit Singh where their Lordships of the Privy Council say: But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied, it is for him to apply for an affidavit of documents, and he can obtain inspection and production of all that appear to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents. 69. Learned counsel for the respondents on the other hand has relied on three other decisions of the Privy Council. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents. 69. Learned counsel for the respondents on the other hand has relied on three other decisions of the Privy Council. The first of these is ('10) 32 All. 104 : 5 I.C. 549 : 37 I.A. 1 (P.C.), Lal Kunwar v. Chiranji Lal, which was a case in which the plaintiff claimed as an adopted son. At page 7 we find the following dictum: Having regard to the well-known and often proved habits of the Indian people with regard to the keeping of accounts, recording their most minute transactions, the non production of any book in which anything connected with this ceremony was entered covers the plaintiff's case with suspicion. 70. In ('16) 3 AIR 1916 P.C. 256 : 33 I.C. 583 : 43 Cal. 707 : 43 I.A. 73 (P.C.), Ram Parkash Das v. Anand Das their Lordships of the Privy Council say: As to the books, they have not been produced for any period which is critical in this case.... Had they been produced, the absence of entries in them would, if the defendants' case be true, have completely confounded the plaintiff's allegations. 71. Again in (25) 12 AIR 1925 P.C. 93 : 86 I.C. 122 (P.C.), Jag Prasad Rai v. Mt. Singari the Privy Council held that the non-production of account books by a party when such account books would throw much light on the case raises an adverse presumption. At p, 96 their Lordships say: The books of account would have shown whether the accounts, which must have been kept, were the accounts of a joint family or of a partnership. The non-production of any of those books of account has not been satisfactorily explained by or on behalf of the plaintiffs, and their Lordships draw the inference that if they were produced, they would not support the case of the plaintiffs. 72. All these dicta must of course be read with reference to the facts of each particular case. It does appear to me that the appellants were in possession of household books of account after the death of Babuain Jodha Kunwar, and these books may well have had some relevance on the question whether the status was joint or separate. 72. All these dicta must of course be read with reference to the facts of each particular case. It does appear to me that the appellants were in possession of household books of account after the death of Babuain Jodha Kunwar, and these books may well have had some relevance on the question whether the status was joint or separate. I therefore think that they should have been produced; but, on the other hand, it was always open to the respondents to demand inspection, and any presumption which may arise by their non-product ion is of course rebuttable. Two witnesses for the respondents depose about a common fund which was operated on by Har Shankar Prasad Singh. Bhan Prasad Singh says, "money received from the Court of Wards was kept and spent by Har Shankar Prasad Singh. He used to sign when receiving money and used to make Mt. Jodha Kunwar also sign the receipts;" but the testimony of this witness has not been otherwise accepted by the learned Judge. Darshan Tewari says: Payments used to be made before Har Shankar and in his immediate presence. He used to call the Karindas and then take money. 73. I do not believe for one moment that the Court of Wards would have knowingly allowed Har Shankar Prasad Singh to meddle with any part of the income of the lunatic's estate; nor is it probable that Dalthaman Singh would have permitted this, for it is obvious that he dealt very strictly with the lunatic's half share as a separate estate and he instituted suits in which the title of Har Shankar Prasad Singh was challenged. Lachhman Prasad says: The entire money received from the Court of Wards by Mt. Jodha Kunwar used to be handed over to Mt. Ramkali Kunwar and she used to spend that money. 74. There is no other evidence to this effect, but, as we know, Babuain Jodha Kunwar received an allowance which varied from Rs. 700 to Rs. 2000 per mensem and possibly some of this may have gone to Har Shankar Prasad Singh. This may conveniently explain why the account books were not produced. 74. There is no other evidence to this effect, but, as we know, Babuain Jodha Kunwar received an allowance which varied from Rs. 700 to Rs. 2000 per mensem and possibly some of this may have gone to Har Shankar Prasad Singh. This may conveniently explain why the account books were not produced. What we have to decide is whether or not the acts, omissions, attitude and conduct of Har Shankar Prasad Singh can be interpreted as expressing an intention to separate himself from Gauri Shankar Prasad Singh and in such manner that the latter acquired a title in a half share of the estate. He allowed Dalthaman Singh to deal with his brother's share as a separate and independent estate. It is alleged in the plaint that it was he who inspired the application for the appointment of a manager with a view to save a moiety of the joint estate, and it was suggested that he inspired the institution of the various suits; but as I have already mentioned and as will more clearly appear when I am dealing with the question of rea judicata, his own title to the property was in issue in those suits. If, as is now conceded, his lunatic brother had during his disability no claimable interest in the estate at all, it was open to Har Shankar Prasad Singh to sue the manager for an injunction to restrain him from managing this property on the ground that it did not belong to the lunatic, but was ancestral property in which the lunatic had no right of participation. 75. Later on he allowed the Collector, as manager of the Court of Wards, to effect a partition of large portions of the zamindari property. In at least two of these applications for partition, one dated 3rd October 1891, and the other dated 2nd February 1892: vide pages 463 and 467 of our paper-book-it was stated that each party, that is to say, Har Shankar Prasad Singh on the one hand and Gauri Shankar Prasad Singh on the other, was to be the exclusive owner of his share after partition, and the khasras and wajib-ul-arzes etc. were signed by the Karinda of Har Shankar Prasad Singh. were signed by the Karinda of Har Shankar Prasad Singh. There can be little doubt that Har Shankar Prasad Singh must have agreed to these partitions; or if he did not, he at least acquiesced in them, and there was nothing in law to prevent him from objecting to the partitioning of the estate or from suing before partition for recovery of the lunatic's share on the ground that it belonged to himself and the lunatic had no legal interest in it. We have been referred to S. 203 of Act 19 of 1875, which provided as follows: The Court of Wards shall have power to give such leases or farms of the whole or parts of the property under its charge, and to mortgage or sell any part of such property, and to do all such other acts, as it may judge to be most for the benefit of the property and the advantage of the disqualified proprietors. 76. We are also referred to S. 47, Court of Wards Act, (3 of 1899) which provides: The exercise of any discretion conferred on the Local Government or the Court of Wards by this Act shall not be questioned in any civil Court. 77. Assuming that the Court of Wards had power to administer Har Shankar Prasad Singh's property under S. 193 of Act 19 of 1873, neither the ward him Self nor any person claiming the estate through the ward could question such acts, but this would not be applicable to a person who claimed that the property belonged to himself, that the wand had no existing interest in it at all and that the Court of Wards had therefore no authority to administer it. Another significant matter is the application of Babuain Jodha Kunwar dated 27th April 1884 in which she prayed that her husband's income be applied towards payment of her brother-in-law's debts and that the latter's property be mortgaged as security. According to the plaint, this application was inspired by Har Shankar Prasad Singh, and, if so, it is definitely suggestive of separation. Even if it was not so inspired, it would seem to indicate that Babuain Jodha Kan war at least regarded the estate as separate. According to the plaint, this application was inspired by Har Shankar Prasad Singh, and, if so, it is definitely suggestive of separation. Even if it was not so inspired, it would seem to indicate that Babuain Jodha Kan war at least regarded the estate as separate. It might be said that in the circumstances in which he found himself Har Shankar Prasad Singh realised that he had no hope of obtaining any money from the property held by the Court of Wards as belonging to his brother unless he agreed to have a charge on his own property and that it would be useless for him to claim any such money as of right; but this contention has no force in view of the fact that Har Shankar Prasad Singh was perfectly free to claim this estate as his own and to take legal action to obtain it. The Court of Wards jealously protected the interests of the lunatic and it excluded Har Shankar Prasad Singh from all enjoyment of the lunatic's share except that it allowed him Rs, 50 a month out of it to eke out the allowance of Rs. 50 which was being allowed to him from the income of his own property; but if the plaintiffs case is true, the Court of Wards had no right to administer any of this estate at all as being the lunatic's half share. 78. Then we come to the testamentary deed of adoption of 1889. I have already set out the recitals which it contains and I have said that both parties rely upon this document. At that time Har Shankar Prasad Singh admittedly had 79 villages in his possession. It is true that he was very heavily in debt and all these villages were subsequently sold to liquidate his debts and, therefore, it is said on behalf of the respondents that Har Shankar Prasad Singh must have been contemplating the whole ancestral estate when this deed of adoption was drawn up. It is also argued that, if the lunatic had received a half share in severalty, Har Shankar Prasad Singh would not have bequeathed any of his own remaining property to his brother's potential son. It is also argued that, if the lunatic had received a half share in severalty, Har Shankar Prasad Singh would not have bequeathed any of his own remaining property to his brother's potential son. The arguments are not without force; but on the other hand, if Har Shankar Prasad Singh regarded the estate as joint, what necessity was there for him to provide that his brother's son, if any were born should take half the property? He would be entitled to his share in any case if the estate were joint. It is also argued on behalf of the respondents that it is unlikely that any adoption would have taken place if Har Shankar Prasad Singh only owned sufficient property to cover his debts. But when a Hindu adopts a son, he is actuated by other considerations, which have no concern with property, Moreover, Har Shankar Prasad Singh, having apparently no appreciation of the value of money, may not have realized at that time that his outstanding debts would swallow up all his remaining property. In my opinion, this deed of adoption is more compatible with separation than with jointness. 79. Then comes the sale deed of 19th June 1897, by which time Har Shankar Prasad Singh's property had been released by the Court of Wards. He sold to Gauri Shankar Prasad Singh through the Court of Wards the 79 villages which remained to him, including ten villages which had gone to him at one of the partition suits, Suit No. 18 of 1892. He sold them for a sum of money sufficient to liquidate his debts and for an annuity to enure during the life time of himself, his wife and his adopted son, which was to be paid from the income of his brother's estate. The sale deed was executed both by Har Shankar Prasad Singh and by his adopted son, and they enjoyed this annuity until they died; and as I have already shown, Har Shankar Prasad Singh lived at Benares while he allowed his lunatic brother to live separately at Anapur. 80. Severance of status among coparceners is a matter of individual volition, and what we have to consider is whether we can read any such volition into the facts and events which I have set out above. 80. Severance of status among coparceners is a matter of individual volition, and what we have to consider is whether we can read any such volition into the facts and events which I have set out above. There is no actual expression by Ear Shankar Prasad Singh in any document of an intention to separate himself from his brother, but from 1874 upto the date of his death in 1903 he allowed his brother's share to be dealt with as a separate estate, although be was a perfectly free agent and was at liberty to recover it by suit on the ground that Gauri Shankar Prasad Singh was disqualified under Hindu law and that he himself was the owner. It is argued that it was not to the interest of Har Shankar Prasad Singh to deprive himself of his legal title in half the estate in this manner; but his object apparently was to save this moiety share from his creditors and he achieved this purpose by allowing the property to go completely out of his hands in such manner that he lost all legal title to it. In my opinion his acts and conduct indicate an unmistakable intention on his part that this should happen. Mr. Das concedes that there is nothing in Hindu law to preclude one coparcener from withdrawing from the coparcenary and renouncing his interest in favour of the other coparcener; and this, I think, is what Har Shankar Prasad Singh's conduct amounted to. As I have already shown, a person who suffers from supervening lunacy is not entitled to claim his share by partition or to claim it at partition, but admittedly there is nothing to prevent a lunatic coparcener from receiving a gift of property. In this case there was certainly not a gift, but I think there was a disclaimer or renunciation by Har Shankar Prasad Singh in favour of his lunatic brother. There is nothing to prohibit a lunatic coparcener from receiving property in lieu of maintenance and I can see no reason why he should not receive what would have amounted to his share if he were under no disability, if the other coparcener or coparceners choose to let him have it. There is nothing to prohibit a lunatic coparcener from receiving property in lieu of maintenance and I can see no reason why he should not receive what would have amounted to his share if he were under no disability, if the other coparcener or coparceners choose to let him have it. In this case we find that Har Shankar Prasad Singh allowed without protest a manager to be appointed under the Lunacy Act in respect to his brother's property and to manage a half share of the ancestral estate as belonging to the lunatic when in law the latter had no right of participation in the ancestral estate. If the lunatic had no interest in the estate during his disability, the estate was liable for the debts of Har Shankar Prasad Singh; but the latter allowed the manager to institute suits the object and result of which were that half the estate was put out of reach of the creditors as constituting the proprietary interest of Gauri Shankar Prasad Singh. In the same manner he allowed the Court of Wards to buy at auction properties which were being put to sale in execution proceedings against himself. He allowed the Collector to have a perfect partition effected through the revenue Court in respect to zamindari property, thereby estopping himself - as I shall show hereafter-from claiming the half share which the Court allotted to Gauri Shankar Prasad Singh, Without (lemur he accepted a trifling allowance of Rs. 50 from the income of his brother's estate, and he agreed to a charge being imposed upon his own property in consideration for the liquidation of his debts out of the income of his brother's estate; all this he accepted, although if there was no intention on his part to have a separation, be was entitled to claim that what was being managed by the Court of Wards was his estate and that his brother had no enforceable interest in it. Finally, by the sale deed of 19th June 1897 he sold his rights in the property remaining to him in consideration for the payment of his debts and an annuity. And all this while he was living at Benares while his brother was living separately at Anapur. 81. Finally, by the sale deed of 19th June 1897 he sold his rights in the property remaining to him in consideration for the payment of his debts and an annuity. And all this while he was living at Benares while his brother was living separately at Anapur. 81. In my opinion this history of his acts and conduct manifests an intention on the part of Har Shankar Prasad Singh to renounce his title in favour of his brother in respect to the moiety of the estate in which his brother would have had an enjoyable interest if not under a disability, and it also manifests an intention to disrupt the status, "It is generally understood in law that a man must be presumed to intend the natural consequences of his own act": ('26) 13 AIR 1926 P.C. 100 : 98 I.C. 1013 : 1 Luck. 389 : 48 All. 529 : 53 I.A. 220 (P.C.), Nirman Singh v. Rudra Partab Narain Singh. As I have already said, the "scheme" which is alleged in the plaint was repudiated by Mr. Das, who argued on behalf of the respondents for many days, whereas Dr. Katju, who argued the connected appeal on behalf of the respondents, stood by this "scheme" but pleaded that there was no intention to defraud the creditors. The plea is irreconcilable with the allegation, for it is obvious that, if Har Shankar Prasad Singh intended to remain the owner, the effect of his scheme was to defraud the creditors; and neither Har Shankar Prasad Singh nor those claiming under him are entitled to benefit by his own fraud. My opinion is that Har Shankar Prasad Singh agreed to save half the property by a severance of status and a renunciation of title in respect to a half share in the estate. He and other members of the family may well have thought in 1874 and subsequent years that so long as his brother had no existing interest in the estate at all, there would always be an apprehension of the creditors enforcing their claim against it and that a separation and renunciation of title was the only means of saving half the estate. I cannot accept the contention that there was nothing more than a temporary "freezing" of half the estate and that the descendants of Har Shankar Prasad Singh are now entitled to claim it on the ground that the legal title remained all along with their ancestor. It is true that at the trial the appellants pleaded an ordinary separation, that is to say, a separation such as might occur among sane coparceners, and issue 7 reads as follows: Did Har Shankar Prasad Singh and Gauri Shankar Prasad Singh continue to be members of a joint Hindu family upto the death of Gauri Shankar Prasad Singh, or had disruption of the joint status taken place in the life time of Gauri Shankar Prasad Singh and they had ceased to be members of a joint Hindu family? 82. This is explainable by the fact that in their written statement the appellants did not admit any disability on the part of Gauri Shankar Prasad Singh, but if we consider all the facts and circumstances which have come to light and which indicate a renunciation of title, I do not think that the plaintiffs can claim a decision in their favour on this part of the case on the ground that the appellants pleaded an ordinary disruption of status and division of title as between sane brothers. At this stage I may mention an argument which has been addressed to us with reference to the various decrees which were obtained against Har Shankar Prasad Singh and the suits whereby the lunatic's share was subsequently retrieved. A number of authorities have been discussed before us which bear the question whether, when the share of one coparcener has been sold at auction, there is or is not a severance of status between himself and the other coparceners; but I do not think it is necessary to discuss this matter since I have already held upon a broad view of the acts and conduct of Har Shankar Prasad Singh, and particularly the sale deed of 19th June 1897, that there was an unmistakable volition on his part to effect a severance of status and a division of title. Even if a contrary view be held, 1 am of opinion, for reasons which I shall give hereafter, that his claim to the lunatic's moiety share in the ancestral property is barred by the rule of res judicata and by limitation and is also barred quoad certain properties by S. 233 (k), Land Revenue Act. 83. The result of my findings on this part of the case is that Har Shankar Prasad Singh renounced in his brother's favour his claim to the moiety share of the estate which was first taken over by the manager and then by the Court of Wards and that he disrupted the status of the family. The Court below has upheld the sale of 79 villages which was effected on 19th June 1897, and this is the subject of the cross objection. In (78) 3 Bom. 54, Balkrishna Trimbak v. Savitribai, it was held that the effect of a Hindu son relinquishing for a sum of money, his share in the property of his father and agreeing not to claim it during or after his father's life-time is to place him in the position of a separated son; and in ('30) 17 AIR 1930 Mad. 51 : 124 I.C. 497 : 53 Mad. 188 : 57 M.L.J. 746, Lakshmi Achi v. Narayanasami Naiker - which follows ('78) 3 Bom. 54, Balkrishna Trimbak v. Savitribai-it was held that if one of two members of a joint Hindu family sells his share to his coparcener brother, he becomes divided from the latter in respect to the said properties without any right of survivorship. Both these cases contemplate a transfer for consideration by one coparcener to another and they have been cited on behalf of the appellants to show that the sale by Har Shankar Prasad Singh of what remained to him of the joint ancestral estate was valid. In Shok Haran Prasad Singh and Others Vs. Both these cases contemplate a transfer for consideration by one coparcener to another and they have been cited on behalf of the appellants to show that the sale by Har Shankar Prasad Singh of what remained to him of the joint ancestral estate was valid. In Shok Haran Prasad Singh and Others Vs. Faqir Chand Sarju Prasad and Others, AIR 1936 All 452 Shok Haran Prasad Singh v. Faqir Chand Sarju Prasad Sulaiman C.J., at page 681 says: "...the family being still joint a transfer of an undivided interest by one member of the family in favour of the other would be wholly invalid." At page 682 the learned Chief Justice observes: Unless there be circumstances which amount to a complete estoppel so as to prevent the person who has surrendered his interest from claiming it, such a surrender would not have the effect of preventing him from claiming the property again, particularly if there was no consideration for the surrender. 84. In that case the surrender was in respect to certain specific properties only and the coparcener had no intention to separate. This authority has been cited on behalf of the respondents, but learned counsel for the appellants pleads that he comes within the rule therein laid down inasmuch as this sale was for consideration. In ('84) 6 All. 560 : 11 I.A. 164 : 4 Sar. 512 (P.C.), Rai Bishan Chand v. Mt. Asmaida Koer, a Hindu had made a gift to his grandson in lieu of Rs. 5000 presumably paid out of the joint fund. The son, Udai Narain, attested the deed and his wife accepted the gift. It was held by the Privy Council that the gift was valid, though it would fail as regards unborn sons. At page 573 their Lordships say: ....what is the whole scheme of the parties? We find them bent on saving the ancestral estate from the consequences of the continued extravagance of one of its members. The plan they adopt, probably the only plan open to them except a complete partition, is a transfer by the head of the family, with the consent of his son, to the lower generation. 85. We find them bent on saving the ancestral estate from the consequences of the continued extravagance of one of its members. The plan they adopt, probably the only plan open to them except a complete partition, is a transfer by the head of the family, with the consent of his son, to the lower generation. 85. Whether the particular sale deed now under discussion was valid in law or not, the transaction was acted upon and I am clearly of opinion that persons claiming through Har Shankar Prasad Singh cannot now be heard to repudiate it. Paragraph 15 of the plaint virtually amounts to an allegation that this transaction was entered into with the collusion of the Court of Wards and that there was in fact no transfer and none was intended; the purpose of the ostensible sale was solely to save the property. But it is not suggested before us that there was any such collusion; in fact Mr. Das, senior counsel for the respondents, definitely repudiated any such suggestion. The plea of estoppel was not taken in the written statement, but for the reasons which I have given, I am of opinion that the sale deed-whether valid or invalid in law and whatever effect such a deed might have as regards the status of the family, cannot now be impeached. In my judgment the view taken by the learned Judge was correct. The next question is whether the suit is barred by S. 233(k), Land Revenue Act, quoad the properties of which a perfect partition was effected by the revenue Court. This plea was not taken at the trial, but it has been seriously argued before us. The applications for partition were preferred by the Collector on behalf of Har Shankar Prasad Singh against Gauri Shankar Prasad Singh; and the Collector was acting as representing the Court of Wards, as is cleat from some of the applications. Learned counsel for the respondents pleads that it was only for purposes of management that the Collector sought partition and he relies on the last sentence of the application dated 16th June 18S2 in which there is a mention of difficulties having arisen in the management of the property. In support of his plea, he has cited a number of cases where there has been a partition between two co-widows having a life Interest in a joint estate. In support of his plea, he has cited a number of cases where there has been a partition between two co-widows having a life Interest in a joint estate. In particular, he relied on three decisions of the Privy Council, namely ('68) 11 M.I.A. 487 : 9 W.R. 23 : 2 Suther 124 : 2 Sar. 327 (P.C.), Bhugwandeen Doobey v. Myna Baee, (78) 1 Mad. 290 : 4 I.A. 212 : 3 Sar. 753 : 3 Suther 447 (P.C.), Gajapathi Nilamani v. Gajapathi Radhamani and ('28) 15 AIR 1928 P.C. 251 : 111 I.C. 485 : 26 A.L.J. 1174 : 55 I.A. 399 (P.C.), Gauri Nath v. Mt. Gaya Kuar. It will suffice to state what their Lordships said in the last mentioned case. It was there observed: If a Hindu dies leaving two widows, they succeed as joint tenants with a right of survivorship. They are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life interest, but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or a future reversioner. 86. Further on their Lordships say: The mere fact of partition between the two while it gives each a right to the fruits of the separate estate assigned to her, does not imply a right to prejudice the claim of the survivor to enjoy the full fruits of the property during her life-time. 87. These decisions afford authority for the proposition that co-widows may partition the estate so that each may remain in peaceful occupation of a half share without prejudice to the rights of the survivor or of the reversioners; but what is partitioned in such a case is merely the life interest of each widow not an absolute title. There is nothing in the Land Revenue Act to authorise a partition for the purposes of convenient administration; what is contemplated under that Act is not only a division of property, but also a division of title. There is nothing in the Land Revenue Act to authorise a partition for the purposes of convenient administration; what is contemplated under that Act is not only a division of property, but also a division of title. In these partition suits the Collector represented Har Shankar Prasad Singh and he also represented the lunatic, each being a recorded cosharer in the village registers, which is the basis upon which a partition in the revenue Court can be sought. It is contended that the Collector had no intention of bringing about any particular legal result; his object was merely to safeguard the lunatic's interest by having his half share separated. But assuming that this was so, it does not necessarily follow that no legal result ensued. Section 113 of Act 19 of 1873 provided for the determination of questions of title and S. 241(f) enacted: 241. No civil Court shall exercise jurisdiction over any of the following matters: ..........(f) The distribution of the land or allotment of the revenue of a mahal by partition; or, the determination of the rent to be paid by a cosharer for land held by him after the partition in the mahal of another cosharer. 88. In (01) 23 All. 291 : 1901 A.W.N. 86 (F.B.), Muhammad Sadiq v. Laute Ram, a Full Bench of this Court held that if a party to a partition which was being conducted by the revenue authorities under Chap. 4 of Act 19 of 1873 desired to raise any question of title affecting the partition, he had to do so according to the procedure laid down in Ss. 112 to 115 of the Act; and if a question of title affecting the partition, which might have been raised under Ss. 112 and 113 of the Act during the partition proceedings, was not so raised and the partition was completed, S. 241(f) of the Act debarred the parties to the partition from subsequently raising in a civil Court any such question of title. This decision was approved by the Privy Council in ('38) 25 AIR 1938 P.C. 210 : 175 I.C. 775 : 13 Luck 508 : 65 I.A. 314 : 32 S.L.R. 845 : 1938 A.L.J. 786 (P.C.), Bajrang Bahadur Singh v. Beni Madho Baksh Singh. This decision was approved by the Privy Council in ('38) 25 AIR 1938 P.C. 210 : 175 I.C. 775 : 13 Luck 508 : 65 I.A. 314 : 32 S.L.R. 845 : 1938 A.L.J. 786 (P.C.), Bajrang Bahadur Singh v. Beni Madho Baksh Singh. At p. 792 their Lordships say: Upon an independent examination of the provisions of the Act of 1901 their Lordships have arrived at the same construction as was put upon the previous Act 19 of 1873 by the Full Bench of the High Court at Allahabad in ('01) 23 All. 291 : 1901 A.W.N. 86 (F.B.), Muhammad Sadiq v. Laute Ram and upon the present Act by Banerji and Tudball JJ. in (17) 4 AIR 1917 All. 258 : 41 I.C. 912 : 39 All 469 : 15 A.L.J. 496 (F.B.), Bijai Misir v. Kali Prasad. If a question of title affecting the partition which right have been raised in the partition proceedings is not so raised and the partition is completed, S. 233(k) in their Lordships opinion debars parties to the partition from raising the question subsequently in a civil Court. 89. At p. 793 they say: For the purpose of the Act, it is not possible to say on the strength of the definition that 'partition' means nothing more than the re-arrangement of the land into units of area. It imports and includes that rights in these units are distributed among the sharers. 90. Thus it is clear that the Privy Council made no distinction between S. 233(k) of the Act of 1901 and S. 241(f) of the Act of 1873; and the reason why I mention this is that an argument was advanced with reference to the language which was used in each of the two Acts. Learned counsel for the respondents pleads that the Collector was not competent to sue for partition under the power with which he was invested under S. 322 of Act 10 of 1877 or S. 323(3) of Act 14 of 1882. This contention, as I have already said, is based on the language of S. 193 of Act 10 of 1873 which mentioned the "person and property" of the disqualified person. This contention, as I have already said, is based on the language of S. 193 of Act 10 of 1873 which mentioned the "person and property" of the disqualified person. The section was apparently interpreted as empowering the Court of Wards to control the actions of the Collector when property had been transferred to him under the provisions of the Code of Civil Procedure; and there can be no doubt that the Court of Wards in fact did take over the estate of Har Shankar Prasad Singh, and, as I have already shown, there are good reasons for supposing that the applications for partition were preferred with his knowledge and approval inasmuch as the entries in the record of rights and the khasras were signed by his own agent. Admittedly, Har Shankar Prasad Singh was himself not a ward; he was a free agent and he was at liberty to object to these partitions on his own behalf if he had so desired, but he did nothing of the sort. In all the circumstances, having regard to the decision of the Privy Council, I do not see how any question of title in respect to the properties which were the subject of partition can now be raised. In my opinion the plea based on S. 233(k), Land Revenue Act, must prevail. The next question to be decided is whether the judgments and decrees in the suits which Dalthaman Singh instituted and in the two suits in which Har Shankar Prasad Singh and his brother were co-defendants operate as res judicata. This plea also was not taken in the suit. 91. The plaint in Suit No. 714 of 1876 shows that that was a suit for declaration of proprietary title on behalf of the lunatic as well as for possession of his moiety though it is true that it was there said on behalf of the lunatic that the property formed part of an ancestral estate which was held jointly with Har Shankar Prasad Singh "who is in charge of the management of the entire estate, as the plaintiff is a lunatic," and it was only the creditor whose dispossession was sought. The same appears from the decree dated 18th December 1877 in Suit No. 33 of 1877, in the plaint dated 8th December 1876 in Suit No. 55 of 1877 and in the consolidated judgment dated 11th September 1877 in respect to this and eight other suits. In all these suits the lunatic's claim for a declaration of his proprietary rights and for possession of his half share was decreed. It is true that no relief was claimed against Har Shankar Prasad Singh; it was the creditor who was to be dispossessed, and therefore it is argued that there was no necessity for Har Shankar Prasad Singh to put in an appearance. But if, as is a fact, a lunatic coparcener has no existing interest in the joint family estate, it seems to me that the decrees must operate as res judicata of the fact that the lunatic's proprietary interest in the property concerned was recognised by the Court to the extent of a half share. It can of course be said, and with reason, that it was not to the personal interest of Har Shankar Prasad Singh that he should contest these suits; otherwise the whole property would go to the creditors. Rut his personal interest in the matter cannot be taken into consideration. If he was the owner of the whole estate, his claim thereto is a matter which might and ought in law to have been made a ground of defence within the meaning of Expln. 4 to S. 11, Civil P.C. Having failed to set up in those suits what is now said to be the true legal position, the respondents are now, in my opinion, estopped from claiming the property. The suit is therefore barred by the plea of res judicata at least quoad the property which was concerned in the aforesaid suits. 92. The larger question now remains whether the suits also operated as res judicata in respect to the lunatic's half share in the whole of what had been the joint ancestral estate. In ('22) 9 AIR 1922 P.C. 80 : 67 I.C. 408 : 49 I.A. 129 : 45 Mad. 320 : 20 A.L.J. 684 (P.C.), T.B. Ramchandra Rao v. A.N.S. Ramchandra Rao a certain widow took some property under her husband's will. In ('22) 9 AIR 1922 P.C. 80 : 67 I.C. 408 : 49 I.A. 129 : 45 Mad. 320 : 20 A.L.J. 684 (P.C.), T.B. Ramchandra Rao v. A.N.S. Ramchandra Rao a certain widow took some property under her husband's will. A piece of land forming a small portion amounting to 1 acre and 74 cents, of this property was subsequently acquired under the provisions of the Land Acquisition Act and at the proceedings a question arose as between the adopted son and the widow as to the character and extent of the estate which the latter had taken under the will. The District Judge held that the widow had an absolute estate, but the High Court of Madras found that she had only a widow's estate. At a later date the two sons of the adopted son of the testator instituted a suit in which it was alleged that the widow had only received a limited estate and that she had no power to dispose of the properties by will. The trial Court found for the plaintiffs, but that decision was reversed by the High Court. In appeal to the Privy Council it was held that the suit was barred by the rule of res judicata by reason of the land acquisition proceedings. At p. 691 their Lordships say: If the decision was wrong, it ought to have been appealed from in due time. Nor, in such circumstances, can the interested parties be heard to say that the value of the subject-matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it. If such a plea were admissible, there would be no finality in litigation. The importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute. 93. Having regard to this authority of the Privy Council, I am of opinion that this suit is barred by the rule of res judicata not only quoad the properties which were in dispute in the various suits instituted in 1876 and 1877, but also in respect to the whole estate. We now come to the plea of limitation - which arises on the assumption of jointness. We now come to the plea of limitation - which arises on the assumption of jointness. This has been argued in respect to (1) the period before the death of the lunatic in 1902 and (2) the period after his death. As regards the period before the death of Gauri Shankar Prasad Singh, I think I have already made it clear that in my opinion Har Shankar Prasad Singh was to his knowledge completely excluded from any enjoyment of a moiety share is the estate and that he was equally excluded by the Court of Wards after it had taken over the moiety of Gauri Shankar Prasad Singh. It is true that the Court of Wards allowed Har Shankar Prasad Singh to receive a paltry sum of Rs. 50 a month from the income of the lunatic's estate, but in this the Court of Wards was no doubt actuated by compassion. The exclusion or ouster of Har Shankar Prasad Singh was open and continuous and I am of opinion that his claim was already barred at the time of his brother's death under Art. 127, Limitation Act. 94. As regards the period after the death of the lunatic, there can be no doubt whatever that the Court of Wards recognized his widow, Babuain Jodha Kunwar, as proprietor: vide the plaint of 29th June 1903 at p. 497, the decree of 31st March 1904 at p. 509, the lease of 5th January 1915 at p. 525 and the mutation order dated 19th September 1903 in favour of Babuain Jodha Kunwar. After the death of her husband her name was substituted in the khewats: vide pp. 699, 709 and 834. The fact of her name being recorded in the registers was, according to the plaint itself, known to Har Shankar Prasad Singh, as is clear from paras. 17 and 18 of the plaint, in which it is alleged that Har Shankar Prasad Singh had her name entered for consolation and "out of policy" by which is presumably meant that he was still pursuing his original scheme for the preservation of a moiety in the ancestral estate. But I have not the slightest doubt that the entries were made at the instance of the Collector, acting under the Court of Wards, for it is manifest, as I have already shown, that the Court of Wards regarded Babuain Jodha Kunwar as the proprietor. But I have not the slightest doubt that the entries were made at the instance of the Collector, acting under the Court of Wards, for it is manifest, as I have already shown, that the Court of Wards regarded Babuain Jodha Kunwar as the proprietor. Apart from the various documents which I have already mentioned, this fact appears very clearly from the report of the Court of Wards for the year ending 30th September 1920 at p. 531 in which it is stated that Babuain Jodha Kunwar had succeeded the lunatic with a life interest and that the estate was released on 1st October 1920-obviously meaning that it was released in favour of Babuain Jodha Kunwar. Learned counsel for the respondents contends that after the death of the lunatic the Court of Wards while retaining the property under S. 42, Court of Wards Act (3 of 1899) was holding it, not on behalf of the lunatic's widow, but on behalf of whoever might be the rightful owner; his plea is that the estate was being held in trust or in custodia legis. He has referred to certain authorities in this connexion, including (84) 8 Bom. 585, Tukaram v. Sujangir Guru. In that case it appears that the Peshwas attached certain vatan lands belonging to the family of the plaintiff. In 1806 the British Government resumed it. The defendant meanwhile entered upon it as a tenant to Government. In 1871 the plaintiffs sued to eject the defendant and to obtain possession. It was held that the Peshwas and afterwards the British Government held as trustees for the real owners and that prescription did not begin to run till 1871 before which date the plaintiff had no right of suit. Learned counsel for the respondents relies on the maxim contra non valentem agere nulla currit praescriptio, but I do not think that this maxim is applicable in the circumstances of the case which is now before us. The Court of Wards openly retained the estate on behalf of Babuain Jodha Kunwar and so far as I can see there was nothing to preclude Har Shankar Prasad Singh from suing the Court of Wards for possession; hat no steps were taken either before the death of the lunatic in 1902 or after his death and during the life-time of Har Shankar Prasad Singh and of Gopal Saran Singh. In my judgment the suit is barred by limitation both in respect to the period prior to the death of the lunatic and also to the, period subsequent to his death. As regards the latter period Art. 144, Limitation Act, is applicable. 95. The last matter which falls for consideration is whether Gauri Shankar Prasad Singh and Babuain Jodha Kunwar were validly married. The learned Judge has upheld the validity of the marriage; and I am in agreement with his view. Mr. Das has conceded that all the rites and observances necessary for a Hindu marriage were performed, but he contends that the marriage was invalid for the reason that among Hindus a marriage is not only a sacrament, but is also a contract, for which consent is necessary and a lunatic is incapable of giving his consent. In Mayne's Hindu Law, Edn. 10. pp. 143 and 144 we read: While marriage is according to Hindu law a sacrament, it is also a civil contract, which takes the form of a gift in the Brahma, a sale in the Asura, and an agreement in the Ghandarva. 96. From pp. 150 to 153 the learned commentator expresses the view that the marriage of a Hindu lunatic is invalid. At p. 150 he says: The marriage of a lunatic, an idiot or an impotent person is invalid under the Hindu law. 97. At page 151 he says: Medhatithi inclines to the view that impotent persons and lunatics are not entitled to marry, as they are not entitled to the performance of any religious rites. 98. At page 153 we read: Where archaic rules of Hindu law very plainly transgress the rules of justice, equity and good conscience, they cannot be enforced. The marriage of an impotent person not being merely sterile, or of a lunatic or of an idiot clearly tends to promote immorality and may also be regarded as contrary to public policy. 99. The view that such a marriage is invalid does not appear to be the view which was originally held by Mr. Mayne at least as regards females for in ('83) 5 All. 99. The view that such a marriage is invalid does not appear to be the view which was originally held by Mr. Mayne at least as regards females for in ('83) 5 All. 509 : 1883 A.W.N. 105 (F.B.), Deo Kishen v. Budh Prakash, Stuart C.J. observed: It is not suggested that the insane person who is a woman was so from her birth, and even if she was, such insanity of a Hindu woman does not appear to disqualify her for marriage. On this subject Mr. Mayne, basing his opinion on the Institutes of Manu, Ch. 2, Ss. 66 and 67 says: 'A Hindu marriage is the performance of a religious duty, not a contract; adding therefore the consenting mind is not necessary, and its absence, whether from infancy or incapacity, is immaterial. 100. In Macnaghten's Hindu Law, p. 57 the learned author says: Marriage among the Hindus is not merely a civil contract, but a sacrament, forming the last of the ceremonies prescribed to the three regenerate classes and the only one for Sudras. 101. In Strange's Hindu Law at p. 44 there is the following passage: The essence of the rite (of marriage) consists in the consent of the parties...that is of the man on the one hand, and on the other, of the father or whoever else gives away the bride. 102. In Vyavastha Chandrika, Vol. 2, p. 432 it is said: Marriage amongst us, Hindus, though essentially a religious sacrament (being the last of the initiatory rites prescribed for men of the regenerate classes, and the only one for women and Shudras), partakes also of the nature of a civil contract. 103. In ('10) 33 Mad. 342 : 5 I.C. 42 : 20 M.L.J. 49, Muthusami Mudaliar v. Masilamani. Sankaran Nair J. says: A marriage, whatever else it is, i.e., a sacrament, an institution, is undoubtedly a contract entered into for consideration with correlative rights and duties. 104. Mr. Das also relies on the "Laws of Mann" in the "Sacred Books of the East" series Vol. 25, Ch. 9, placitum 88, which reads: To a distinguished handsome suitor of equal caste should a father give his daughter in accordance with the prescribed rule, though she have not attained the proper age. 105. Mr. 104. Mr. Das also relies on the "Laws of Mann" in the "Sacred Books of the East" series Vol. 25, Ch. 9, placitum 88, which reads: To a distinguished handsome suitor of equal caste should a father give his daughter in accordance with the prescribed rule, though she have not attained the proper age. 105. Mr. Das argues that this implies a prohibition of the marriage of a girl to a lunatic; but placitum 203 of the same chapter reads: If the eunuch and the rest should somehow or other desire to take wives, the offspring of such among them as have children is worthy of a share. 106. Dr. Maxmuller notices that notwithstanding this placitum, Medhatithi is of opinion that a mad man cannot marry; and from his introduction to Vol. 25 it would appear that Dr. Muller had considerable respect for Medhatithi. He says, however, that his extant text is "more or less corrupt": vide p. 126. 107. It seems to me that in placitum 203 the words "and the rest" must refer back to placitum 201, which includes insane persons and idiots. In the translation of the Mitakshara by Macnaghten and Colebrooke, Ch. 2, S. 10, Sloka 141 reads as follows: But their sons, whether legitimate, or the offspring of the wife by a kinsman, are entitled to allotments, if free from similar defects. 108. The word "their" refers back to Sloka 140, which states inter alia that a mad man and an idiot are excluded from participation in property. Placitum 10, which comes immediately after Sloka 141 says: The sons of these persons, whether they be legitimate offspring or issue of the wife, are entitled to allotments, or are rightful partakers of shares; provided they be faultless or free from defects which should bar their participation such as impotency and the like. 109. It seems to me, therefore, that the Mitakshara contemplates that a Hindu lunatic may take a wife and that etch marriage will be valid. In Gooroodas Banerjee's "Hindu Law of Marriage and Stridhana," Edn. 5, at p. 37 the learned author Says: I shall consider first the question, who are incompetent to marry? 109. It seems to me, therefore, that the Mitakshara contemplates that a Hindu lunatic may take a wife and that etch marriage will be valid. In Gooroodas Banerjee's "Hindu Law of Marriage and Stridhana," Edn. 5, at p. 37 the learned author Says: I shall consider first the question, who are incompetent to marry? Here you will bear in mind, that marriage is regarded in Hindu law not only as a civil contract, but also as a sacrament, being one of the ten sanskaras or regenerating ceremonies necessary for men of the twice-born classes, and the only one necessary for Sudras; and that in consequence of this religious necessity, the grounds of disqualification for marriage are fewer in the Hindu law than in any other polished system of law. 110. At p. 39, after stating that the consent of the father or other guardian of a minor boy is necessary, the learned author says: The want of a guardian's consent would not, however, invalidate a marriage otherwise legally contracted. 111. At page 40 we read: Persons of unsound mind-that is idiots and lunatics-though disqualified for civil purposes generally have not been declared incompetent to marry. On the contrary, there are indications in the law from which it would appear that they are considered to be competent to marry. 112. The author then refers to certain ancient texts and also to a decision of the High Court at Calcutta in 2 Morley's Digest 99, Dabychurn Mitter v. Radhachurn Mitter to which I shall have occasion to refer later on. He then goes on to say at page 41: But, on the other hand, it should be noticed that the idiot and the lunatic being, where the loss of reason is complete, incompetent to accept the gift of the bride, which is a necessary part of the ceremony of marriage, it is not easy to understand how their marriage in such cases can be regarded as marriage at all. And I may add here that Hindu law permits the wife to neglect a mad husband. 113. And I may add here that Hindu law permits the wife to neglect a mad husband. 113. He then says: "It needs hardly to be pointed out that such marriages are exceedingly improper" and he quotes the following sloka of Manu: But it is better that the damsel, though marriageable should stay at home till her death than that he (the father) should ever give her in marriage to a bridegroom void of excellent qualities : vide the Laws of Manu, Chap. 9, placitum 89. 114. After observing that the authorities on the Hindu law clearly discountenance such marriages the learned author says: Marriages of idiots and other naturally disqualified persons must obviously be of rare occurrence, and the rule which declares them valid and legal can be justified only on the ground that the opposite rule would be hard against the unfortunate offspring, and would deprive the unhappy wife of her legitimate conjugal status without giving her any compensating advantage. 115. In Mandlik's Hindu Law, at p. 426 there is the following observation: Outsiders can hardly form a correct notion of how present usage has so changed the old structure that but little remains of the old texts; and this change must in each case be carefully ascertained from practice. Even in matter most dear to the Brahmanas and the other twice-born classes, usage has fearfully twisted the smritis. Thus, in marriages, the bridegroom should, it is laid down, be free from defect of limb; he should not be patita (fallen into sin), nor kliba (impotent), and he should be free from the ten doshas (blemishes). Usage has, however, made a clean sweep of this, Even the marriage of an impotent person in the higher classes is held good and binding; and the wife can get no divorce. Again a man born deaf and dumb can get married. 116. At p. 427 in footnote 2 the author says: But how can an idiot be capable of accepting a bride? And yet the marriages of such idiots appear to have been contemplated by Yajnavalkya when he declares that the blameless sons of idiots are qualified for inheritance. 117. In connexion with deaf and dumb persons the learned author says: The answers which the bridgroom is supposed to give are in this case repeated by the priest. And yet the marriages of such idiots appear to have been contemplated by Yajnavalkya when he declares that the blameless sons of idiots are qualified for inheritance. 117. In connexion with deaf and dumb persons the learned author says: The answers which the bridgroom is supposed to give are in this case repeated by the priest. Beyond animal instinct, there is no other element in such a marriage, and yet, according to usage, such marriages are reckoned quite proper, and sanctioned by the community, although they are opposed to the old text laws. 118. In Halhed's Code of the Gentoo Law" at p. 74 it is stated in S. 5 that the son of an idiot, if totally free from certain named blemishes, shall receive his share of the property left for inheritance. One of the recognized blemishes is of course insanity. In support of the contention that a Hindu marriage is essentially a sacrament, even though it may contain an element of contract, Sir Tej Bahadur Sapru has referred us to certain observations in Gooroodas Banerji's book. At p. 107 the learned author, quoting from Yama says: ....the marital contract is complete after the ceremony of joining hands on the 7th step of the married pair. 119. At p. 109 quoting Colebrooks "Asiatic Researches," he says that "the marriage is complete and irrevocable as soon as she (the bride) has taken the seventh step and not sooner." The earliest reported case on the subject is to be found in 2 Morley's Digest 99, Dabychurn Mitter v. Radhachurn Mitter. In that case a man named Collychurn was a lunatic at the time when he married and the question before the High Court at Calcutta was whether the marriage was valid. The following questions were put to the Pandits: (1) By the Hindu law, is the marriage of a lunatic, by consent of his family, binding? (2) Is the marriage in this latter case valid without the consent of parents if living, or, if dead, of the family? The answer to both questions was in the affirmative. As regards the first question the answer was: "The marriage of a lunatic, a nativitate, is immoral, but valid with the consent of parents. (2) Is the marriage in this latter case valid without the consent of parents if living, or, if dead, of the family? The answer to both questions was in the affirmative. As regards the first question the answer was: "The marriage of a lunatic, a nativitate, is immoral, but valid with the consent of parents. The marriage of one who becomes a lunatic after his birth and during his lunacy is valid." The answer to the second question was: under every circumstance, if such a marriage be contracted, it is valid." 120. In Siromani's Commentary on the Hindu Law at p. 65 the correctness of this view is doubted. The learned author says that it is "fairly open to question, according to the letter of the law, though in actual practice the marriage of idiots and lunatics does take place." Mr. Das objects that the Pandits quoted no authority, and in this connection he has referred us to (1859) 8 M.I.A. 400 : 2 W.R. 4 (P.C.), Myna Boyee v. Ootaram and ('69) 13 M.I.A. 141 : 3 Beng. L.R. 1 : 12 W.R. 41 : 2 Suther 267 : 2 Sar. 498 (P.C.), Inderun Valungypooly Taver v. Ramaswamy Pandia Talaver. 121. In the former case at p. 422 their Lordships say: When the opinion given is apparently irreconcilable with the opinions of proved text-writers, those who give the opinion should be asked further to explain that which appears prima facie thus irreconcilable, so that they may show on what they ground an apparent exception from the general law, whether on general custom modifying texts, on local usage, family customs, or other exceptional matter. 122. In the other case the Privy Council did not accept the opinion of the Pandits because it was not satisfactory; it was a matter of their own reasoning and there was no reference to any authority relevant to Sudras, with which class of persons the case was concerned. In ('68) 12 M.I.A. 397 : 1 Beng.L.R. 1 : 10 W.R. 17 : 2 Suther 135 : 2 Sar. 361 (P.C.), Collector of Madura v. Moottoo Ramalinga Sathupathy there is the following dictum: The evidence that the doctrine for which the respondents contend has been sanctioned by usage in the South of India consists partly of the opinions of Pandits, partly of decided cases. 361 (P.C.), Collector of Madura v. Moottoo Ramalinga Sathupathy there is the following dictum: The evidence that the doctrine for which the respondents contend has been sanctioned by usage in the South of India consists partly of the opinions of Pandits, partly of decided cases. Their Lordships cannot but think that the former have been too summarily dealt with by the Judges of the High Court. These opinions, at one time enjoined to be followed, and long directed to be taken by the Courts, were official and could not be shaken without weakening the foundation of much that is now received as the Hindu law in various parts of British India. Upon such materials, the earlier works of European writers on the Hindu law, and the earlier decisions of our Courts, were mainly founded. The opinion of a Pandit which is found to be in conflict with the translated works of authority may reasonably be rejected; but those which are consistent with such works should be accepted as evidence that the doctrine which they embody has not become obsolete, but is still received as part of the customary law of the country. 123. The Pandits were "law officers" and they were required to take an oath to state only what is in the Shastras - vide Regulation 12 of 1793 which was extended to Benares by Regulation, 11 of 1795-and it is clear from the observations of the Privy Council that the opinion of the Pandits could not be lightly discarded; the only ground for discarding such an opinion would be that it was irreconcilable with the opinions of proved text-writers and the translated works of authority. In 2 Morley's Digest 99, Dabychurn Mitter v. Radhachurn Mitter, the opinions which were given by the Pandits do not appear to be in conflict with the ancient text-writers. We are referred on behalf of the respondents to ('11) 38 Cal. 700 : 11 I.C. 502 : 38 I.A. 122 : 14 C.L.J. 72 : 15 C.W.N. 790 (P.C.), Mouji Lal v. Chandrabati Kumari. In an appeal arising out of an application for letters of administration, an issue before the High Court at Calcutta was whether the marriage of a certain individual was invalid by reason of insanity. 700 : 11 I.C. 502 : 38 I.A. 122 : 14 C.L.J. 72 : 15 C.W.N. 790 (P.C.), Mouji Lal v. Chandrabati Kumari. In an appeal arising out of an application for letters of administration, an issue before the High Court at Calcutta was whether the marriage of a certain individual was invalid by reason of insanity. The order was passed by Pargiter and Woodroffe JJ, and they held that the man's unsoundness of mind was not such as would render the marriage invalid by reason of his being incapable of accepting the bride during the ceremony and of understanding what was going on. Pargiter J. said: Upon this finding, it is not necessary for me to consider the elaborate arguments which have been addressed to us by both parties whether a marriage contracted by a really insane person is or is not invalid according to Hindu law. 124. The Privy Council agreed with the order passed. At p. 706 their Lordships say: In the judgment of Pargiter J, it is clearly and concisely shown that from the time of the alleged marriage Ishri Pershad and Cirjabati were recognised by all persons concerned as man and wife and so described in important documents and on important occasions. Their daughters were respectably married, as would be natural in the case of legitimate children and these facts, following upon a ceremony of marriage which undoubtedly took place though its validity is attacked, afford an extremely strong presumption in favour of the validity of the marriage and the legitimacy of its offspring. 125. At p. 706 there is the following observation: Their Lordships agree with the learned Judges of the High Court in thinking that, to put it at the highest, the objection to a marriage on the ground of mental incapacity must depend on a question of degree, and that in the present case the evidence of mental infirmity is wholly insufficient to establish such a degree of that defect as to rebut the extremely strong presumption in favour of the validity of marriage. 126. Thus, the Privy Council did not consider the question whether a Hindu lunatic is competent to marry: their decision rested on the fact that the person concerned was not proved to have suffered from such a degree of unsoundness of mind as would rebut the presumption of the validity of the marriage. 126. Thus, the Privy Council did not consider the question whether a Hindu lunatic is competent to marry: their decision rested on the fact that the person concerned was not proved to have suffered from such a degree of unsoundness of mind as would rebut the presumption of the validity of the marriage. It is true that in 2 Morley's Digest 99, Dabychurn Mitter v. Radhachurn Mitter the Pandits do not appear to have quoted authority, but their opinion has never been dissented from in any reported case and, as I have already said, it does not appear to be in conflict with the ancient text-writers. In (91) 14 Mad. 316 : 1 M.L.J. 85, Venkatacharyulu v. Rangacharyulu the learned Judges say: There can be no doubt that a Hindu marriage is a religious ceremony. According to all the texts it is a samskaram or sacrament, the only one prescribed for a woman and one of the principal religious rites prescribed for purification of the soul. It is binding for life because the marriage rite completed by saptapadi or the walking of seven steps before the consecrated fire creates a religious tie; and a religious tie when once created cannot be untied. It is not a mere contract in which a consenting mind is indispensable. The person married may be a minor or even of unsound mind, and yet, if the marriage rite is duly solemnized, there is a valid marriage. 127. At page 319 they say: As a religious ceremony it becomes complete when the saptapadi is performed, and there are several smritis to that effect. Manu says: 'The relation of wife is created by the texts pronounced when the girl is taken by the hand. Be it known that those texts end, according to the learned with the texts prescribed for walking seven steps.' Vasishta says: 'In connexion with the formation of the relation of husband and wife, agreement is first prescribed. Then taking by the hand is prescribed. It is said that mere agreement is defective, and that of the two, taking by the hand is indispensable.' Tama says: 'Not by the pouring of water nor by the words of gift is the relation of husband and wife formed, but it is formed by the rite of taking the bride by the hand and when they walk together the seventh step'. 128. 128. At page 320 the learned Judges say: Hence two propositions of law may be taken to be established beyond controversy, viz., (1) where there is a gift by a legal guardian and the marriage rite is duly solemnized, the marriage is irrevocable, and (2) where the girl is abducted by fraud or force and married, and there is no gift either by a natural or legal guardian, there is a fraud upon the policy of the religious ceremony and there is, therefore, no valid religious ceremony. 129. In (98) 22 Bom. 812, Mulchand Kuber v. Bhudhia and again in ('97) 19 All. 515 : 1897 A.W.N. 139, Ghazi v. Sukru it was held that among Hindus a duly solemnized marriage cannot be set aside in the absence of force or fraud on the ground that consent had not been given by the person entitled to give it on behalf of the bride. A Hindu marriage eutails a gift of the bride and it is a matter of admission that a gift may be made in favour of a lunatic. In Marshall's Rep. 357 : 2 Hay 370, Kooldebnarain v. Wooma Coomari it was held that there is no prohibition in the Hindu law against a gift to an idiot; such person is deemed capable of possessing property. It was held that assent may be presumed where the gift is for his benefit, and in the case of a minor idiot the assent of his guardian is sufficient. In the case with which we are dealing there is no suggestion that the gift of the bride was not accepted on behalf of Gauri Shankar Prasad Singh; in fact, as I shall show the marriage has all along been recognized and accepted. There is no actual prohibition of such a marriage in the ancient text books and, having regard to the various authorities which I have mentioned, l am of opinion that the marriage of Hindu lunatic, though improper and immoral and discouraged by Hindu law, is not invalid if duly solemnized. Whatever injunction against such a marriage may be read into the ancient commentaries, it would appear to be of a directory rather than of a mandatory character. In ('98) 20 All. 267 : 25 I.A. 54 : 7 Sar. Whatever injunction against such a marriage may be read into the ancient commentaries, it would appear to be of a directory rather than of a mandatory character. In ('98) 20 All. 267 : 25 I.A. 54 : 7 Sar. 279 (P.C.), Balwant Singh v. Rani Kishori their Lordships of the Privy Council observe: All these old text-books and commentaries are apt to mingle religious and moral considerations, not being positive laws, with rules intended for positive laws. In the preface to his valuable work on Hindu Law, Sir W. Macnaghten says: 'It by no means follows that because an act has been prohibited it should, therefore, be considered as illegal. The distinction between the vinculum juris and the vinculum pudoris is not always discernible'. 130. In ('99) 22 Mad. 398 : 26 I.A. 113 : 21 All. 460 : 7 Sar. 330 : 9 M.L.J. 67 (P.C.), Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma their Lordships at p. 415, after referring to the last mentioned case, say: ....the further study of the subject necessary for the decision of these appeals has still more impressed them with the necessity of great caution in interpreting books of mixed religion, morality and law, lest foreign lawyers, accustomed to treat as law what they find in authoritative books, and to administer a fixed legal system, should too hastily take for strict law precepts which are meant to appeal to the moral sense, and should thus fetter individual judgments in private affairs, should introduce restrictions into Hindu society, and impart to it an inflexible rigidity, never contemplated by the original law-givers. 131. In the present case Uabuain Jodha Kunwar was throughout recognized as the married wife of Gauri Shankar Prasad Singh. Bhan Prasad Singh, ft witness for the respondents, says: Jodha Kunwar was regarded as a wife of Gauri Shankar from the time of the marriage. Since she was regarded as the wife of Gauri Shankar, people of the biradari used to take food there with Gauri Shankar and Mt. Jodha Kunwar also. 132. Similarly, Ganpat Singh, another witness for the respondents, states: Jodha Kunwar was not regarded as amistress or a maid servant, but as a wife of Gauri Shankar Prasad Singh. 133. Since she was regarded as the wife of Gauri Shankar, people of the biradari used to take food there with Gauri Shankar and Mt. Jodha Kunwar also. 132. Similarly, Ganpat Singh, another witness for the respondents, states: Jodha Kunwar was not regarded as amistress or a maid servant, but as a wife of Gauri Shankar Prasad Singh. 133. In official documents Babuain Jodha Kunwar was described as the wife or widow of Gauri Shankar Prasad Singh, and in the adoption deed Har Shankar Prasad Singh himself contemplated the possibility of a son being born to his brother. In ('10) 33 Mad. 342 : 5 I.C. 42 : 20 M.L.J. 49, Muthusami Mudaliar v. Masilamani, Sankaran Nair J. says: Where therefore a caste accept a marriage as valid and treat the parties as members of the caste, it would be, it appears to me, an unjustifiable interference for the Courts to declare those marriages null and void. 134. In ('99) 22 Mad. 398 : 26 I.A. 113 : 21 All. 460 : 7 Sar. 330 : 9 M.L.J. 67 (P.C.), Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma, it was held by the Privy Council that the adoption of an only son having taken place in fact, is not null and void. At p. 149 their Lordships say: The adoption was 20 years old, and no caste penalties had followed it. These things do not prove a custom, but they do tend to prove that among orthodox Hindus the adoption of only sons has never been so inculcated as sin by their teachers as to excite abhorrence or social hostility, such as we know to follow from other breaches of their religious laws. 135. There is always a presumption in favour of the validity of a marriage. In ('69) 13 M.I.A. 141 : 3 Beng. L.R. 1 : 12 W.R. 41 : 2 Suther 267 : 2 Sar. 498 (P.C.), Inderun Valungypooly Taver v. Ramaswamy Pandia Talaver, their Lordships of the Privy Council say: When once you get to this, viz., that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. 136. L.R. 1 : 12 W.R. 41 : 2 Suther 267 : 2 Sar. 498 (P.C.), Inderun Valungypooly Taver v. Ramaswamy Pandia Talaver, their Lordships of the Privy Council say: When once you get to this, viz., that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. 136. I do not think that the degree of unsoundness of mind from which Gauri Shankar Prasad Singh was suffering is very important in this part of the case, but I may say that, although he was found by inquisition to be a lunatic, the observations in the judgment in Suit No. 714 of 1876 at p. 323 of our paper-book show that he was capable of understanding and complying with simple instructions. 137. Babuain Jodha Kunwar was admittedly married in or about 1875, and in 1936 for the first time the validity of her marriage was impeached by this suit. Its validity was never questioned by the lady herself or by anyone on her behalf, it is being questioned now by persons interested in the property whose predecessors-in-interest recognized Babuain Jodha Kunwar as the married wife of the lunatic. Learned counsel for the respondents has sought to rebut the presumption of validity by relying upon certain authorities of Hindu law which I have already discussed, but for the reasons which I have stated I am of opinion that, whatever element of contract there may be in a Hindu marriage and however much the marriage of a lunatic may be discountenanced by the Hindu law, the marriage of Gauri Shankar Prasad Singh with Babuain Jodha Kunwar was not invalid. Although I have disagreed with the learned Judge of the Court below on most of the points arising in this appeal, I appreciate his very careful and thorough judgment. Allsop, J. 138. I have had the advantage of seeing my learned brother's judgment and, as I agree with the conclusion which be has reached, it is not necessary for me to discuss the case in detail, but I would like to make some observations about the main issue, namely, whether there was a partition between Babu Har Shankar Prasad Singh and Gauri Shankar Prasad Singh. There seems to be no doubt after a consideration of the history of the family from the time when Dalthaman Singh was appointed to manage the property of Gauri Shankar Prasad Singh that the estates of the two brothers were treated as entirely separate by all concerned. If this had been a normal family of two brothers who were both in full possession of their senses, it would surely not have been open to the plaintiffs-respondents to argue that there had been no partition or disruption of the family. The learned Judge of the Court below seems to have been influenced in his decision by two main considerations, namely, (1) that it is not possible in law to have a partition between two brothers one of whom is of sound and the other of unsound mind and (2) that it is possible to make a distinction between a partition of property and a disruption in the status of a joint Hindu family and in the circumstances of this case, although there may have been a partition, there is nothing to justify the conclusion that there was a disruption. 139. There is no doubt that the rule set forth in the Mitakshara is that a member of a joint family who is of unsound mind is not entitled to claim a share by partition, but it seems to me that this does not necessarily imply that he may not be given a share by the other members if they choose to give him one. The rule gives the members who are of sound mind a right to exclude a member who is not of sound mind, but no person is bound to stand upon his rights. Where exclusion depends upon unsoundness of mind it is clear that there can be no absolute criterion by which to judge whether a person is liable to be excluded. In each case it would be necessary to decide whether unsoundness of mind was of such a character as would justify exclusion, It is a question of degree and the members of a family who were of sound mind at the time of a partition might well in some circumstances hesitate whether the person of unsound mind was in such a condition that exclusion was justifiable. It would surely not be right, if they gave him a share, afterwards to allow them to resile from their position and to allege that the share should not have been given and that the partition was liable to be avoided. There might also be cases where the members of sound mind might consider it more convenient to allow the person of unsound mind a share rather than to render themselves liable for his maintenance after the partition. I do not think therefore that it can be laid down as an absolute rule that there can be no partition between a brother of sound mind and one of unsound mind. 140. The learned Judge if the Court below has considered that it would be unjust in such circumstances to allow the brother of sound mind to disrupt the family because the result would be that he would get the whole property and it is conceivable that he might by doing so deprive the brother of unsound mind of his right to maintenance. I do not think there is any force in this argument because the rule in the Mitakshara is that the person of unsound mind is entitled to proper maintenance and the rule undoubtedly contemplates a state of affairs where there is a partition between persons of sound mind to the exclusion of one unsound mind. If there can be a partition, as undoubtedly there can be, between several members of a joint family who are of sound mind when one of the other members is of unsound mind, in which case the latter would be entitled to maintenance, it seems to follow that there is no reason why there should not be a partition between two members of a joint family one of whom is of sound and the other of unsound mind. The latter would certainly be entitled to maintenance in these circumstances just as he would, if there had been more than two members of the family and there had been a partition between those who were of sound mind. 141. There is, of course, the argument that it is absurd to regard as a partition a transaction by which one of two members of a joint family obtains the whole of the joint family property, but this argument as put forward by the plaintiffs-respondents involved an inconsistency upon their part. 141. There is, of course, the argument that it is absurd to regard as a partition a transaction by which one of two members of a joint family obtains the whole of the joint family property, but this argument as put forward by the plaintiffs-respondents involved an inconsistency upon their part. Their whole case depends upon a fine but comprehensible distinction between a partition of joint family property and a disruption of the personal status of the members of a joint family. It depends upon the contention that there may be a partition of property without a disruption of the joint family and that a partition of this kind might operate to enable various members of the family to possess and enjoy various parts of the property but would not sever the title of the various members of the family because there was no disruption of status. If the two questions of partition and disruption can be treated apart from each other, then it is surely inconsistent to argue on the one hand that there can be a partition without a disruption and on the other to argue that there cannot be a disruption in law because there can be no partition of the property. It is true that the rules of Hindu law are not absolutely logical and consistent, but I see no justification for the proposition that a member of a joint Hindu family who is ordinarily entitled to disrupt the family at will should be deprived of that right merely because the result would be that he could take the whole family property as a result of the disruption and leave to the other member only a right to be maintained. 142. In my judgment the learned Judge of the Court below was misled when he thought that there could be no partition because Har Shankar Prasad Singh was of sound mind and Gauri Shankar Prasad Singh was of unsound mind. With reference to the other consideration which seems to have influenced the learned Judge there can be no doubt that it is possible for members of a joint family to divide the property up among themselves for the purpose of more convenient enjoyment or management without the intention of making a partition which would sever the title so that some might be full proprietors of certain of the original properties and some absolute proprietors of others. That would, of course, be a matter of intention, but the intention can only be gathered from the conduct of the members of the family. No Court can consider alleged mental reservations. The argument upon which the plaintiffs-respondents rely is that Gauri Shankar Prasad Singh could not have had any intention to disrupt the family because he was not of sufficiently sound mind to have any intention at all about a matter of this kind and that there is nothing to show that Har Shankar Prasad Singh ever had such an intention. I will repeat that we can judge of Har Shankar Prasad Singh's intention only by his conduct and his conduct was that of a man who intended that the estate of Gauri Shankar Prasad Singh should be entirely separate from his own estate. He never acted as though he believed that he still had a title to a share in the property which was the estate of Gauri Shankar Prasad Singh. The suggestion at one time was that the alleged partition was merely a device on the part of Har Shankar Prasad Singh to defeat his creditors and that the appointment of guardians for the person and property of Gauri Shankar Prasad Singh, the suits instituted by Dalthaman Singh, the proceedings under which the Court of Wards took over the estate of Gauri Shankar Prasad Singh as the hitter's separate property and the Collector under the law for the time being in force took over the estate of Har Shankar Prasad Singh himself and alienated it in order to discharge his liabilities were all part of a carefully conceived plan on the part of Har Shankar Prasad Singh to save half the property belonging to the family. 143. It seems to me that it is inconceivable that an extravagant profligate as Har Shankar Prasad Singh undoubtedly was, would ever have thought out or executed a plan of this kind and I think that Mr. P.R. Das on behalf of the plaintiffs-respondents was very wise in abandoning that position. It seems to me very much more probable that the ladies of the family and their advisers were alarmed at the extravagances of Har Shankar Prasad Singh and that they brought pressure to bear upon him and induced him to agree to a partition of the family property between himself and his brother. It seems to me very much more probable that the ladies of the family and their advisers were alarmed at the extravagances of Har Shankar Prasad Singh and that they brought pressure to bear upon him and induced him to agree to a partition of the family property between himself and his brother. It was argued that Har Shankar Prasad Singh would have been much better situated if he had intended to maintain the jointness of the family because he would ultimately have been entitled to the property which was preserved to the family. The answer to my mind is that he never at any time claimed as of right any share in Gauri Shankar Prasad Singh's estate or secured any benefit from this elaborate scheme which he is supposed to have engineered. I am satisfied that we can judge of his intentions only by his conduct and that his conduct clearly points to an intention on his part absolutely to sever the two estates. 144. The learned Judge in considering this aspect of the matter has been impressed by his conclusion that the family in spite of the alleged disruption continued to live together as members of a normal joint Hindu family. In my judgment the conclusion of the learned Judge upon the facts is not justified by the evidence. He has found that Har Shankar Prasad Singh, Gauri Shankar Prasad Singh, Mt. Jodha Kunwar and the other ladies of the family all lived together in the same house and that the allowance which was given to Mt. Jodha Kunwar from Gauri Shankar Prasad Singh's estate was really used for the purposes of the whole family. The evidence upon which he has relied is unworthy of credence. He has not discussed the evidence of the witnesses in any detail and has drawn an inference adverse to the defendants-appellants from the fact that they produced no accounts to show that Mt. Jodha Kunwar's allowance was spent by herself and was not spent by Har Shankar Prasad Singh as the head of the family. 145. In the first place, I should like to make some observations about the argument based on the absence of these accounts. Jodha Kunwar's allowance was spent by herself and was not spent by Har Shankar Prasad Singh as the head of the family. 145. In the first place, I should like to make some observations about the argument based on the absence of these accounts. It may be true that zamindars of some position and members of Hindu families who carry on business keep detailed accounts of their income and expenditure and that items of domestic expenditure, such as the payment of doctor's fees and the purchase of grain and foodstuffs, are mentioned in these accounts, but it must be remembered in the case with which we are dealing that the accounts of the properties which belonged to Gauri Shankar Prasad Singh and Har Shankar Prasad Singh were kept by the Court of Wards and that they had nothing to do with the expenditure of the allowance of Mt. Jodha Kunwar. I do not think that we are entitled to assume in the circumstances of this case that Mt. Jodha Kunwar or Har Shankar Prasad Singh would have kept a clerk or an accountant merely to maintain accounts of the former's personal expenditure out of her own allowance. In the second place, even if they did do so, it is not fair to assume that these accounts were still in existence thirty or forty years after the relevant period. It is true that Babu Bindeshari Prasad Singh when he was in the witness-box said that the accounts of Mt. Jodha Kunwar had come into his possession, but he was faced with an unexpected question in cross-examination and I am extremely doubtful whether a zamindar in his position would be likely to know anything about the details of these accounts. He no doubt knew that certain books of account had come into the possession of his employees when he took over the estate from Mt. Jodha Kunwar, but to conclude from his evidence that these accounts included the details of her domestic expenditure at the time when Har Shankar Prasad Singh was alive would be most unfair. He no doubt knew that certain books of account had come into the possession of his employees when he took over the estate from Mt. Jodha Kunwar, but to conclude from his evidence that these accounts included the details of her domestic expenditure at the time when Har Shankar Prasad Singh was alive would be most unfair. I have no doubt that an inference may be made against a party where he deliberately fails to produce documentary evidence which has a direct bearing upon an issue arising between him and the other party or which would be conclusive evidence of facts which he has alleged, but in this case these domestic accounts were not such, even if they existed, that it could necessarily be supposed when the suit was instituted that they would rebut any allegation made on the other side. I do not think that it can be inferred that these domestic accounts exist or ever existed or that the failure to produce them raised a presumption that Mt. Jodha Kunwar's allowance was really spent by Har Shankar Prasad Singh as the head of the family. It also appears from the evidence that Gauri Shankar Prasad Singh and Mt. Jodha Kunwar lived on the family estate at Anapur and that Har Shankar Prasad Singh lived quite separately in the town house (if I may so describe it) at Benares. It is a notorious fact of which we can take judicial cognizance that the Court of Wards is much concerned with the welfare of its wards, and it is impossible to believe that the manager of the estate would have been under the impression, as he obviously was that Gauri Shankar Prasad Singh was living at Anapur if he had been living with Har Shankar Prasad Singh at Benares. From the circumstances of the case the inference is that the two families of Har Shankar Prasad Singh and Gauri Shankar Prasad Singh were living separately and not as members of a joint Hindu family. 146. The evidence of the witnesses does not seem to me to be of much value. Bhan Prasad Singh has deposed that his cousin was married to B. Har Shankar Prasad Singh and that Jodha Kunwar used to reside with B. Har Shankar Prasad Singh and that the money received from the Court of Wards used to be spent by the latter. Bhan Prasad Singh has deposed that his cousin was married to B. Har Shankar Prasad Singh and that Jodha Kunwar used to reside with B. Har Shankar Prasad Singh and that the money received from the Court of Wards used to be spent by the latter. This witness is obviously interested on behalf of the plaintiffs be-causewhat he said on the other question of the marriage of Mt. Jodha Kunwar that no ceremonies had taken place is now conceded to be absolutely untrue. The witness alleged that he lived with Har Shankar Prasad Singh and was educated by him, but in cross-examination he showed little knowledge of the affairs of the family. Darshan Tewari alleged that he had been in the service of Gauri Shankar Prasad Singh for five years. He said that Har Shankar and Gauri Shankar used to live jointly all their live3. He said he used to get Rs. 10 a month as his pay. I do not think that this witness is a person on whom much reliance can be placed. 147. Jageshwar Lal is a patwari of a circle in which some of Har Shankar Prasad Singh's zamindari was situated. He alleged that he had often been to see Har Shankar Prasad Singh and Gauri Shankar Prasad Singh and that they lived together as members of a joint Hindu family. There was no particular reason why he should go and see Har Shankar Prasad Singh or Gauri Shankar Prasad Singh when the Court of Wards was in charge of both their estates. He said that he used to visit these gentlemen at Benares and not at Anapur. The next witness, Ganpat Singh, was a resident of the same mohalla in Benares in which Har Shankar Prasad Singh's house was situated. He said that the lady married to Gauri Shankar Prasad Singh used to reside with Har Shankar Prasad Singh as Gauri Shankar Prasad Singh and Har Shankar Prasad Singh used to live together. The suggestion is that they lived together at Benares. Bhan Prasad has also said that these people never resided at Anapur permanently. 148. It is extremely improbable, as I have already remarked, that this statement is true. Ghulam Mustafa said that he went to Anapur with a Hakim and that he saw Gauri Shankar Prasad Singh there. The suggestion is that they lived together at Benares. Bhan Prasad has also said that these people never resided at Anapur permanently. 148. It is extremely improbable, as I have already remarked, that this statement is true. Ghulam Mustafa said that he went to Anapur with a Hakim and that he saw Gauri Shankar Prasad Singh there. Har Shankar Prasad Singh was also there and was being treated by the Hakim for two and a half months. He also said that he visited the village sis or seven times during the life time of the Hakim and that Gauri Shankar Prasad Singh and Har Shankar Prasad Singh lived jointly and their messing was also joint. This would seem to suggest that the two families lived at Anapur. The witness is not a man in whom much confidence could be placed. Ghasita states that he was employed on a salary of Rs. 8 a month by Har Shankar Prasad Singh to look after the latter's birds. His statement that Gauri Shankar Prasad Singh and Har Shankar Prasad Singh lived together jointly is not of much importance. Lachhman Prasad stated that he was an accountant in the service of the Court of Wards. The witness was called to prove some facts about the execution of a deed of sale by Har Shankar Prasad Singh and his adopted son in favour of the Court of Wards. His statement that the special manager of the Court of Wards, Mr. Fox, was prevented from seeing the Collector about this matter because he had taken a purgative shows considerable ignorance of English manners and customs and is obviously untrue. He said he went to see Har Shankar Prasad Singh and Gauri Shankar Prasad Singh on two occasions once at Anapur and the other time at Benares, and that they lived together jointly. 149. The evidence of a man who saw them twice even if he was otherwise truthful would not be of much assistance to the plaintiff-appellants. Lal Bahadur Singh alleged that he was Har Shankar Prasad Singh's cook and left his service 34 years before he gave evidence. He admitted that Gauri Shankar Prasad Singh died at Anapur and that Har Shankar Prasad Singh died at Benares. Hari Shankar has deposed that he was a head clerk in the Court of Ward's Office. His evidence is that he once went to Benares to see Mt. He admitted that Gauri Shankar Prasad Singh died at Anapur and that Har Shankar Prasad Singh died at Benares. Hari Shankar has deposed that he was a head clerk in the Court of Ward's Office. His evidence is that he once went to Benares to see Mt. Jodha Kunwar and that he found Har Shankar Prasad Singh and Gauri Shankar Prasad Singh having their dinner together. If it is true that these two men were together at Benares on one occasion, that would not establish that the family all lived together as a rule. Adit Narain Singh was a man who said that he was getting Rs. 7 a month as salary from Har Shankar Prasad Singh. I do not think much reliance can be placed on his evidence. Sheo Bahadur Singh is a witness of the same kind. He was a cook, if hi? statement is true. The learned Judge has said generally that there is the evidence of the plaintiffs' numerous witnesses that after the appointment of the guardian and the various other incidents as to which he was about to refer the two brothers and their families did live jointly and there was a common fund, a common mess and a common residence. He said that he had already expressed his reluctance to put implicit faith in the oral evidence but he thought that there were apparently no good reasons to rule out the plaintiffs' evidence regarding commensality between the two brothers. There is no doubt that the evidence is quite unreliable, and I think does not in any way establish that the members of the family continued to live jointly after the estates were separated. I am satisfied that there was a partition between the two brothers and that the family was disrupted. Upon the other points which have been fully discussed by my learned brother I have nothing to add, I concur in the decree which he proposes to pass. 150. For the reasons given we allow this appeal. We set aside the decree of the Court below and we dismiss the suit of the respondents with costs in both Courts. We also dismiss the cross-objection with costs.