Lord Buckmaster. -

The appellant in this case is the widow of Raja Saroda Narain. The respondent is the nearest male agnate of the deceased, being the son of Nilkantha Narain, the original plaintiff in the suit, who was the son of Bharath Singh. The proceedings were instituted for the purpose of establishing the title of the plaintiff to an estate known as the Sarampore Raj or Gadi and certain movea ble and immoveable property, cash and securities which had been purchased out of the income of that estate. The questions with regard to the estate and the monies and property representing the investments from this income are distinct, and need to be separately considered. They have both been decided adversely to the appellant, with the exception of the claim to certain Government securities which will be more specially referred to hereafter. Serampore Raj or Gadi is impartible, and the family is governed by the Mitakshara law. If there had been no division of the family the property would have passed to the plaintiff, but it is assarted that Bharath Singh separated from his father in his life time, and that consequently neither he nor the plaintiff was joint in estate with Raja Saroda Narain.

Now, the facts upon which this alleged separation is based have been concurrently found by the two Courts, and are no longer the subject of dispute. The argument pro perly open to the appellant is not upon the facts themselves but that these facts, when accepted, do establish separation. The facts are these : The village of Chowrah was granted, at a date not precisely ascertained but many years ago, by the then Raja to the plaintiffs father Bharath Singh by way of maintenance on a mokurari grant at a nominal rent the plaintiff's father, who died in 1879, does not appear to have gone to reside at Chowrah, but the plaintiff went there about 1885, when the then Raja was a minor and his estate was under the management of the Court of Wards. The effect of his change of residence necessari ly effected a separation in food and mess. The High Court hold distinctly that there was no separation in religion, and the learn ed Subordinate Judge holds that there was no separation beyond the separate living in the maintenance-village and the consequent separate messing.

The oases of Girja Bai v. Sadashiv Dhundiraj (1916) 43 Cal 1031 : 43 IA 151 : 20 CW N 1085 : 14 ALJ 822 : 20 MLT 78 : 12 N LR 113 : (1916) 2 MWN 65 : 18 Bom LR 621 : 4 LW 114 : 24 CLJ 207 : 37 IC 321 : 31 MLJ 455 (PC) and Kawal Nain v. Budh Singh (1917) 39 All 496 : 41 IA 159 : 15 ALJ 531 : 2 PLW 57 : 21 CWN 986 : 33 MLJ 42 : 19 Bom LR 642 : 26 CLJ 101 : (1917) MWN 514 : 40 IC 286 : 6 LW 830 (PC) are clear decisions that it is competent to a member of a joint family to separate himself from the family by a clear and unequivocal intimation of his intention to sever and this is also true with regard to an impartible estate; but as in that case the person separating for feits his chance of inheriting the whole of the estate by survivorship, it requires strong evidence to establish such separa tion.

The case in 44 I. A. illustrates this. It was there found that the separation relied on was a complete separation in worship, in food, and in estate; and, further, there was good reason for the complete separa tion, and that consequently the requisite evidence was forthcoming. In this case these conditions are lacking, and their Lordships are unable to think that there has been any misapplication of the prin ciples of law which regulate this question, and the findings of fact are sufficient to defeat the appellant's claim.

The second question gives rise to greater difficulty. It appears that Raja Saroda Narain, when he inherited the estate, was a minor. The estate was then placed under the custody of the Court of Wards. On his obtaining majority the Raja entered into possession and appears to have manag ed the estate with care and skill. Towards the end of his life misfortune overtook him and he became insane. His estate was once more placed under the custody of the Court of Wards, and so remained until his death in 1907.

Originally the estate was in debt, and as there is no evidence of any acquisition of property from other sources, it follows that all the estate possessed by the Raja other than the impartible Raj was derived from the income of the Raj itself. In the end this income produced very considerable property. There were certain villages, certain mortgages - usufructuary and other wise - sums due on bonds and decrees, Government promissory notes to the extent of two lacs, and other moveable and im moveable properties. With the exception of the Government promissory notes the whole of these have bean awarded to the plaintiff upon the ground that they repre sented an accretion to the estate and des cended with it. Their Lordships think that this conclusion is wrong, and that its error is due to the idea that the produce of the impartible estate naturally belongs to and forms an accretion to the original pro perty. In fact, when the true position is considered there is no accretion at all. The income when received is the absolute property of the owner of the impartible estate. It differs in no way from property that he might have gained by his own effort, or that had come to him in circum stances entirely disassociated from the ownership of the Raj. Nor could the monies have been used by him for the purpose of acquiring or endowing an im partible estate. It is, therefore, a strong assumption to make that the income of the property of this nature is so affected by the source from which it came that it still retains its original character.

It is possible that this confusion is due to the consideration of the position with regard to an ordinary joint family estate. In such a case the income, equally with the corpus, forms part of the family pro perty, and if the owner of the estate mixes his own monies with the monies of the family - as for example, by putting the whole into one account at the bank, or by treating them in his ac counts as indistinguishable - his own earnings share, with the property with which they are mingled, the character of joint family property; but no such consi derations necessarily apply to the income from impartible property. The whole of the evidence on the matter in the present case, as stated by toe High Court, is as follows :-

"Some new properties were acquired out of the savings of Serampore Gadi. When there were savings in my hand I used to send the money to the Raja and take re ceipts from him. The money was utilised by the Raja by giving loans and purchas ing other properties. On some occasions the Raja used to land the money himself, and these sums are not entered in our books. When the loan was given through us, then we used to keep accounts of such money. I can't give the sums that passed through our hands or their probable amounts. The moneys that passed through our hands were invested in loan and also in purchasing zemindaris. The incomes of zemindaris purchased were also entered in our books. It was treated as part of the income of the estate. Loans with interest repaid were also entered in our books. that money was also treated as part of the estate. All this was done at the instance of the Raja. Loans advanced by the Raja personally and not through our hands, and those that were not entered in the estate account at the time of the advance, the money when repaid used sometimes to come to our hands and sometimes paid to the Raja direct. Those that came to our hands were entered in our book. What was so entered into the estate account was con sidered as estate money with the Raja's consent. I can't say if the Raja purchased any landed estate out of the money ad vanced by him personally."

For the reasons already given such a statement is insufficient to affect the pro perty with the character of impartiality. Whether it be possible in any circum stances to treat moveable property as an accretion to a landed estate of this charac ter is a matter not arising for decision.

It is true that in Sarabjit Partap Baha dur Sehi v. Indarjit Partap Bahadur Sahi (1905) 27 All 203 : 2 ALJ 720 : (1904) A WN 244 it was decided that moveable pro perty could be so regarded, but as the point does not arise here their Lordships need only say that they must not be regarded as accepting the soundness of that decision. The facts here are not very different from those in Srimati Rani Parbati Kumari Debi v. Jagadis Chunder Dhabal (1902) 29 Cal 433 : 29 IA 82 : 6 CWN 490 : 4 Bom LR 365 : 8 Sar 205 (PC) where it was held that the evidence was inade quate to show that certain mouzahs bought out of the savings of the Zemindar were attached to the Zemindary. In both Janki Pershad Singh v. Dwarka Pershad Singh (1913) 35 All 391 : 40 IA 170 : 17 CW N 1029 : 14 MLT 110 : 25 MLJ 34 : (1913) MWN 630 : 18 CLJ 200 : 11 ALJ 818 : 20 IC 73 : 16 OC 216 : 15 Bom LR 853 (PC) and Murtaza Husain Khan v. Mahomed Yasin Ali Khan (1916) 38 All 552 : 48 IA 269 : 20 MLT 362 : 14 ALJ 1083 : 18 Bom LR 884 : 31 M LJ 804 : (1916) 2 MWN 555 : 25 CLJ 1 : 19 OC 290 : 1 PLW 122 : 21 CWN 410 : 4 OLJ 8 : 36 IC 299 : 4 LW 538 (PC) the addition of family property to the original Raj is considered. Both these cases dealt with property other than moveable property. In the present case their Lordships can see no evidence in the facts stated of any sufficient intention to treat the acquired properties - whether the mouzahs, mort gages or other personal estate - as part of the original Raj. The consequence is that to that extent the appellant succeeds, and the decree of the High Court must be varied by declaring that the decree for possession made in favour of the respon dent be further varied by providing that it shall not include items 2, 3, 5, 6, 7 and 9 in Schedule A to the plaint. the respon dent will pay the costs of the appeal.

Their Lordships will humbly advise His Majesty accordingly.

Decree varied.