Das, J.:— In this suit the plaintiffs, who are the daughters of one Nand Kumar Lal, sue for the following reliefs:

“That it be declared by the Court that Babu Nand Kumar Lal the father of the plaintiffs died in a state of separation from the defendants 1 to 6, leaving a four annas defined share in the properties specified below which after his death was inherited by the defendant no. 7 as his widow and which after the death of defendant no. 7 the plaintiff and defendants nos. 8 to 10 will be entitled to inherit as reversionary heirs of their father.”

In the plaint, as originally filed, they asked for a further declaration that

“the ekrarnamah, mukarrari and dar mukarrari executed by defendant no. 7 are illegal and inoperative against the plaintiffs.”

On a question of the sufficiency of the court-fee paid by the plaintiffs being raised, the plaintiffs applied for, and obtained leave, to amend the plaint by striking out the relief claimed in respect of the transactions of the widow. The learned Subordinate Judge has found in favour of the plaintiffs, and has given them a decree substantially as claimed by them. The defendants appeal to this Court.

The relationship between the parties will appear from the following pedigree:—

We are concerned in this litigation with the descendants of Durga Prasad; and the substantial question of fact raised in this appeal is whether at the date of his death which took place on the 25th August 1921, Nand Kumar was joint with, or separate from, his newphews, the sons of Hriday, Brij Mohan and Hanuman. In order to entitle them to bring a suit of a declaratory nature, the plaintiffs allege the following facts in their plaint:

1. Nand Kumar in his lifetime had instituted a suit for recovery of money, being money suit no. 484 of 1920. On his death, the suit was about to be dismissed ‘for non-joinder of defendant no. 7,’ the widow of Nand Kumar ‘as plaintiff in place of Babu Nand Kumar Lal’ when defendants 1 to 6 ‘with the help of some influential men of the locality by exercising persuasion, misre-presentations, coercion and undue influence compelled defendant no. 7 to execute an ekrarnamah and to have a mokarrari and dar mokarrari executed by and in their favour, admitting that the late Babu Nand Kumar Lal was joint with them, and to withdraw the petition of registration of her name.

2. Thereafter defendants 1 to 6 acting in concert and in collusion with each other instituted a partition suit no. 367 of 1922 nominally on behalf of defendant 5 as plaintiff for the division of the properties in three equal parts ‘with an ulterior object of depriving the plaintiffs of their reversionary interest.’ They alleged in that suit that the family was joint.

3. They impleaded defendant 7 as a party to that suit; but as soon as defendant no. 7 filed a written statement alleging that the family was not joint, they applied for, and obtained, an order striking out the name of defendant 7 from the category of defendants.

4. They caused the suit to be referred to the arbitration of certain persons and ultimately obtained a decree for the division of the properties amongst them to the exclusion of defendant 7.

They contend that the facts just enumerated “have thrown a cloud over the reversionary interest of the plaintiffs” and they maintain that, in these circumstances, they are at liberty to bring a suit for the protection and preservation of their reversionary interest.

Two questions have been argued in this Court on behalf of the defendants appellants, first, that a declaratory suit was not available to the plaintiffs, and that in any event they were not entitled to a declaration as to their reversionary interest; and secondly, that at the date of the death of Nand Kumar, the family was joint and that consequently the plaintiffs' suit should fail on merits.

It will be convenient, first, to dispose of the question of law raised before us. The solution of that question must depend on the interpretation of section 42 of the Specific Relief Act, which provides as follows:

“Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”

Two of the Illustrations of section 42 may be conveniently set out. They are:

“(e) The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survive her may, in a suit against the alienee, obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow's lifetime.

(f) A Hindu widow in possession of certain property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may, in a suit against the adopted son, obtain a declaration that the adoption was invalid.”

It would appear that the conditions for giving the appropriate relief under section 42 are—

1. The plaintiff should at the time of the suit be entitled to any legal character or to any right as to any property.

2. The defendant should have denied or be interested in denying that character or right.

3. The plaintiff should not be in a position to ask for relief consequential upon the declaration prayed for.

It is not disputed that the defendants have denied or are interested in denying the particular right claimed by the plaintiffs; nor is it disputed that the plaintiffs are not in a position to ask for any consequential relief. The question then is, are the plaintiffs entitled, to any right as to any property? Reliance was placed upon the decision of Mitter, J. in Greeman Singh v. Wahari Lall, and it was contended that section 42 refers only to existing and vested rights, and not to contingent rights like those of a person who has only a chance of succeeding to the estate of a Hindu after the death of a female heir in possession of the property. Now, in that suit, the plaintiff asked for a declaration that certain deeds of sale executed by a Hindu widow were void and inoperative as against him, and also for a declaration that he, the plaintiff, was the next reversionary heir of the last male owner. The Subordinate Judge gave the plaintiff a decree in these terms:

“That this case be decreed to the plaintiff in the manner following, to wit: that Wahari Lall, the plaintiff, in the capacity of grandson of Balgobind Singh, is entitled to the property left by his maternal grandfather after the death of Musammat Pharichha Koer, in case he remains alive after Pharichha Koer; that it is held, that the transfer of Mouza Jugutpore made by the widows of Balgobind Singh will be declared null and void after the death of Musammat Pharichha Koer, in case the plaintiff pays Rs. 5,835-11 to the defendant Musammat Rajkishori.”

The whole question before their Lordships of the Calcutta High Court was whether the plaintiff was entitled to the first declaration made in his favour, namely, the declaration as to his heirship; and Mitter, J., pronouncing the judgment of the Court, had no difficulty in answering the question in the negative. This case has been dissented from both in Madras and Allahabad. See Gangayya v. Mahalakshmi and Manmatha Nath Biswas v. Rohilli Moni Dasi; but it seems to me that it was not realised that Mitter, J., was only dealing with the question whether the plaintiff was entitled to a declaration as to his right to succeed to the property after the death of the widow. The observation of Mitter, J., upon which reliance is placed on behalf, of the appellants must, in my opinion; be understood as denying the right of a plaintiff to bring a suit for the declaration of his reversionary title; not as denying the right of a plaintiff to bring a suit for the protection and preservation of the reversionary estate by removing such cloud as may be thrown on it. Section 42 speaks of “any right as to any property;” and it is impossible to contend that these words are not large enough to include reversions, even if remote. There can be no doubt whatever that a person in whom the reversion of an estate is vested has such a title as will support and justify a declaratory decree. Indeed the illustrations to which I have already referred will establish this point. The distinction which exists between a suit for a declaration of the reversionary title of the plaintiff, and a suit of a declaratory nature for the protection and preservation of the reversionary estate has been put with admirable clearness and precision in the judgment of the learned Subordinate Judge in this case; and, as I cannot improve upon the language, I adopt it as part of my judgment.

But then it was contended that with the disappearance of (b) relief claimed in the suit—the relief in regard to the transactions of the widow—the suit is virtually a suit for the declaration of the plaintiffs' right to succeed and that, upon the view already expressed by me, the plaintiffs' suit must fail. I am unable to agree with this contention. The plaint is inartistically drafted; but we are not left in doubt as to what the plaintiffs are really seeking in the suit. The main controversy between the parties is, whether Nand Kumar, at the date of his death, was joint with, or separate from, the contesting defendants. The whole object of the suit is to prevent future litigation by removing existing causes of controversy. Now the contesting defendants have entered into various transactions, some with the widow, others amongst themselves which have had the effect of throwing a cloud upon the existence of an estate of Nand Kumar capable of being inherited by his heirs. Important evidence has come into existence apparently showing that Nand Kumar was joint with his nephews and that he did not leave an estate capable of being inherited by his heirs. In these circumstances the plaintiffs claim a declaration that “Babu Nand Kumar Lal, the father of the plaintiffs, died in a state of separation from defendants 1 to 6 and that his four annas defined share was inherited after his death by defendant 7.” No doubt the plaintiffs proceed to ask the Court to declare that they together with defendants 8 to 10 will be entitled to succeed to the property after the death of the widow; but it does not follow that, because the Court cannot make this declaration in favour of the plaintiffs, it cannot make the other declaration sought for which would have the effect of affirming the existence of the estate of Nand Kumar capable of being inherited by his heirs. If the Court refused to enter upon the question as to whether Nand Kumar was joint with, or separate from, his nephews, evidence to establish the unsubstantiality of the claim of the defendants might be lost in course of time. In my opinion, although the Court ought not to declare that the plaintiffs will be entitled to succeed to the property on the death of the widow, the Court may properly declare that Nand Kumar was separate from his nephews and that he left an estate capable of being inherited by his heirs.

It was then contended that persons suing as reversioners are not entitled to declaratory decrees other than those contemplated in Illustrations (e) and (f) of section 42, that is to say, other than those declaring that an alienation by a Hindu widow was made without legal necessity and was therefore void beyond the widow's lifetime or that a particular adoption made by a Hindu widow was invalid. To give effect to this argument is to countenance the theory that the general words of the section may be controlled by any limiting words that may he used in one or more of the illustrations; and I am not prepared to accede to the argument. As part of the same argument, it was contended that a Hindu reversioner suing for a declaration in the presence of the widow is exactly in the same position as that occupied by a remote reversioner suing in the presence of a nearer reversioner; and that consequently the Court, in its discretion, should not make any declaration in his favour unless it is satisfied that the widow is colluding with the principal defendants. It was confidently asserted that there are no cases in the books where the Court has made a declaration in favour of the reversioner except in suits where the reversioner has either challenged the acts and transactions of the widow or has satisfied the Court that the widow was colluding with the principal defendants. It was pointed out that, the plaint having been amended by striking out relief (b) originally claimed, the suit no longer constitutes an attack on the acts and transactions of the widow; and the whole of the plaint was read out to us to show that, not only is there no charge of fraud and collusion against the widow, but that there are distinct charges that the widow was the party defrauded. In these circumstances it was contended that the proper party to sue was the widow; and that the Court in its discretion should not make a declaration in favour of the reversioner. The argument is a weighty one; and it is necessary for us to proceed with care.

It is now firmly established that the Court in its discretion will not make a declaration in favour of a remote reversioner in regard to the acts and transactions of the widow unless the nearest reversioners refuse without sufficient cause to institute proceedings or unless they have precluded themselves by their own acts or conduct from suing or have colluded with the widow or concurred in the acts alleged to be wrongful [see Anand Kuer v. The Court of Wards]. But the rule stated in Anand Kuer's case embodies a rule of prudence, not a rule of law. In other words, it affects the question of discretion, and not that of jurisdiction; for section 42 makes no distinction between the rights of a near and those of a remote reversioner. The question is, does the rule laid down in Anand Koeri's case apply where the suit is instituted by the nearest reversioner in the lifetime of the widow, not to challenge the acts and transactions of the widow, but for the protection and preservation of the reversionary estate? It was asserted, as I have said, that no cases will be found in the books to justify such suits. I have, however, discovered a case directly in point. In Puttanna v. Ramkrishna Sastri it was held that the right of the presumptive reversioner to sue for a declaratory decree under section 42 of the Specific Relief Act is not restricted to the class of transactions referred to in Illustrations (e) and (f) to that section; and that such a reversioner is entitled to bring a suit of a declaratory nature, although the widow is living and capable of bringing a suit on her own account, and there are no charges of collusion and fraud against the, widow; that is, to transactions by the widow herself. The facts were these: A died without leaving any issue, but leaving behind him his widow, the fourth defendant. By his last will and testament he bequeathed his properties to defendants 1 and 2. The plaintiff as the presumptive reversioner sued for a declaration that the will of A was invalid having been obtained by fraud and undue influence and that he, together with the third defendant, was entitled to succeed to the properties on the death of the widow. It is obvious that the will must have been executed at a time when the statutes relating to probate were not in operation. The suit was resisted precisely on the same ground on which the present suit is resisted. In dismissing the suit the primary Court said as follows: “The plaint does not so much as allege any complicity or collusion of the fourth defendant in getting up the will impeached nor is it in any way made out that the fourth defendant has precluded herself by her own act or conduct from impeaching the will………. So the suit is virtually for a declaration that the plaintiff is entitled to succeed to the estate of the deceased Anantha Bhatta on the death of the fourth defendant. But it is clear law that during the lifetime of the fourth defendant, the heiress, no one can bring such a suit, because, as his title must depend on the state of things at her death, a suit before that time would be unnecessary and useless litigation of a question which may never arise or may only arise in a different form.” It is obvious that the arguments advanced in this case were completely anticipated in that case; but how did the High Court deal with the matter? In allowing the appeal, the High Court said as follows: “The argument of the Vakil for the respondent that the enacting portion of that section should be confined to the case of transactions by a widow as in Illustrations (e) and (f) to the section, is, on the face of it, untenable; nor can it be held that the plaintiff was bound to show collusion, acquiescence or laches on the part of the fourth defendant before he is allowed to institute the suit. The well-known decision of the Privy Council in Rani Anand Kunwar v. The Court of Wards has no application to the present case, which is a suit by the presumptive reversioner.” This case was referred to with approval by Mukharji, J., in Brindaban Chandra Shaha v. Sureswar Shaha Paramanick and by the Madras High Court in Narayana Kutti Goundan v. Pechiammal alias Mahali Animal.

The case to which I have just referred meets practically all the arguments which have been advanced before us. But apart from this case, and even if it should be held that Anand Koeri's case is applicable to the suit of a reversioner in the lifetime of the widow, I am of opinion that the plaintiffs may well have taken the view that the widow had precluded herself by her own act and conduct from suing and that they were therefore entitled to bring this suit. Now consider the circumstances. The widow was a party to solemn transactions by which she admitted that her husband, at the date of his death, was joint with his nephews. So long as these transactions stood, it was not possible for her to institute a suit for the protection of her husband's estate. In these circumstances the plaintiffs had to consider whether they should wait till the death of the widow or bring a suit at once for the protection of their interest. Prima facie, the widow was concluded by her own acts and transactions. It seems to me that a stronger case cannot be imagined where a reversioner should be allowed to sue for a declaratory decree. It is true that the acts and transactions of the widow have not been challenged in this suit; but it is not necessary that they should be challenged. If there were no hostility alleged on the part of the contesting defendants, there might be difficulty in the way of the plaintiff. But it is not disputed that the defendants have denied or are interested to deny their reversionary title. As a result of such denial on the part of the defendants (apart from the acts and transactions of the widow) a cloud has been thrown on their reversionary right which, if left to gather and not dispersed in time, will be used to embarrass or affect the reversionary interest when it falls into possession. If they succeed in dispersing the cloud now, the acts and transactions of the widow will not stand in their way when the estate falls into possession, for it would be open to them to treat these transactions as of no effect without the intervention of any Court, there being nothing to set aside or cancel as a condition, precedent to their right of action for possession [Binoy Gopal Mukharji v. Krishna Mahishi Debi.

Lastly, it was contended that this is not a case in which the Court should have exercised its discretion in giving the plaintiffs a declaratory decree. This is a question which it was for the learned Subordinate Judge to decide; and, though I agree that there is jurisdiction in this Court to correct a wrong exercise of discretion by the trial Court, I am firmly of opinion that this Court should be slow to interfere with the exercise of discretion by the trial Court, unless it is satisfied that the discretion has been unreasonably exercised. Far from holding that the learned Subordinate Judge acted unreasonably in this matter, I am of opinion that he was entirely right in the view which he took of this matter. The position is full of peril for the plaintiffs who are purdanashin women; and I am confident that should we dismiss the present suit, not on merits, but on the preliminary point raised, they would have unsurmountable difficulties in their way in recovering possession of the estate when it does fall into possession, if they are right in their contention that their father was separate from his nephews and left an estate capable of being inherited by his heirs. For myself, I can conceive of no stronger case for a declaratory decree under section 42 of the Specific Relief Act. I must accordingly decide the preliminary point in favour of the plaintiffs-respondents.

I now come to the substantial question of fact raised in this appeal, namely, whether at the date of his death which took place on the 25th August, 1921, Nand Kumar was joint with, or separate from, his nephews. It will be noticed on a reference to the pedigree that Nand Kumar and his nephews belong to the branch of Durga Prasad who was one of the three sons of Jawahir Lal. It is the common case of the parties that the sons of Jawahir Lal separated from each other in 1901 and partitioned the joint family properties amongst them first in 1901, then on the 3rd February, 1906, then on the 20th February, 1914, and lastly on the 2nd June, 1917. It was contended on behalf of the plaintiffs-respondents that the partition between the three sons of Jawahir Lal resulted in a general disruption of the joint status involving the conversion of a joint tenancy into a tenancy in common. Although the transactions between the three sons of Jawahir Lal must have that result so far as they were concerned, it would be rash to hold that as a result of those transactions the sons of Durga Prasad became separate amongst themselves. Indeed the documents bearing on those partitions have no room for doubt that each of the sons of Jawahir represented his particular branch and that so far as the members of each branch were concerned, their position amongst themselves was not intended to be affected by those transactions.

The oral evidence on the question as to the status of the family is not very strong although it is useful; and if it stood by itself, it would be impossible for us to hold that the plaintiffs have established their case as to separation. The plaintiffs however rely on unimpeachable documentary evidence in support of their case.

I will first refer to a transaction which took place between the parties sometime in 1918 which, in my opinion, establishes beyond doubt that there was a complete separation between Nand Kumar and his nephews with effect from 1965 Sambat (1908 A.D). It appears from the evidence of Mr. Saiyeeduddin, a vakil practising in Monghyr and occupying the important position of the Government pleader in that district, that there were considerable disputes between the parties sometime in 1918. At that date Nand Kumar was the only surviving son of Durga Prasad living. Jagannath the son of Hanuman was a minor and it appears that his mother took possession of the bahi khatas and the cash books of a shop which belonged to the parties. Mr. Saiyeeduddin was the family lawyer, and it appears that all the parties to this litigation reposed the utmost confidence in his integrity and judgment. Balmukund, the present defendant no. 1, came to Mr. Saiyeeduddin and reported the matter to him and asked him to intervene in the matter. Mr. Saiyeeduddin thereupon saw the lady who returned the bahi khatas and the cash books and told him that she “only wanted, to know the amount of money for her sons' share and to get it noted in the bahi.” Thereupon, to quote the words of Mr. Saiyeeduddin, “Balmukund, Nand Kumar Lal and mothers of Baijnath Prasad and Jagannath Prasad called me to adjust account and to fix the liability of each of them to the other. They gave me these notes of accounts and their claims marked X to X(9) for identification. I made this note on their statements and the statements of the gomastas.” He added however that he could not adjust the accounts for want of time.

Now it is obvious from the evidence of Mr. Saiyeeduddin and the documents to which I will presently refer that all the descendants of Durga Prasad referred the disputes between them to the arbitration of Mr. Saiyeeduddin. I shall presently consider what effect this reference had upon the status of the family; but it appears to me that there is no doubt whatever, upon the statements filed by the parties before Mr. Saiyeeduddin, that the family had ceased to be a joint family in the sense in which that term is understood in the Mitakshara law from the beginning of the Sambat year 1965 (1908 A.D).

As Mr. Saiyeeduddin has explained, each of the parties filed before him a statement of claim together with a statement as to how the accounts stood. The statement of Nand Kumar is Exhibit 11 and it will be found at page 64, Part III of the paper-book. I will come to the statement of claim later; I propose to deal first with the accounts filed by the parties before the arbitrator. Nand Kumar's statement of the account is Exhibit 2A and is printed at page 5 of the paper-book. It runs as follows:

“Lekha of Babu Nand Kumar Lal relating to his personal expenses as well as the expenses incurred in connection with Muran (tonsure) and marriage ceremonies, etc., up to 24th Asin, 1975 Sambat.

Expenses on account of Muran and marriage ceremonies at the time when family was joint.

Rs. a. p. Debited to Durga Prasad Babu … … 2,325 8 0 Rs. a. p. Expenses on account of Muran … 889 6 6 Rs. a. p. I hulbti Bibi … … 362 8 0 Gulo Bibi … … 131 1 6 Sohani Bibi … … 172 14 0 Kirtivati Bibi … … 222 14 9 Marriage expenses of Gulo Bibi … 1,436 1 9 Personal expenses from Sambat 1965 to 24th Asin, 1975 Sambat … … 15,134 0 9 Debited in the Bahi … 18,734 0 9 After deducting the proportionate amount of expenses incurred in the marriage of Balmakund Babu Rs. 2,000 and for purchase of paddy Rs. 1,600 … 3,600 0 0 15,134 0 9 Marriage expense after separation … … 3,718 6 9 Sohani Bibi … … 1,347 4 3 Kirtivati Bibi … … 2,371 2 6 3,718 6 9 Proportionate amount of marriage expenses Rs. 2,000 and paddy Rs. 1,600 … … … … 3,600 0 0 24,777 15 9 While the family was joint … 2,325 8 3 After separation … … 22,452 7 6

Now it is obvious on a perusal of this statement that the family was joint up to Sambat 1964 when all the expenses were debited to Durga Prasad, the common ancestor, whose name was undoubtedly used for the purpose of showing that all the expenses were joint expenses. Expenses from Sambat 1965 stood entirely on a different footing. They are referred to as the personal expenses of the parties, and we see from Exhibit 2A that the; personal expenses of Nand Kumar from 1965 to 24th Aswin 1975 which is the date when these accounts were submitted to the arbitrator was Rs. 22,452-7-6. We find a definite statement at the foot of the document that Rs. 2,325-8-3 was spent on his behalf while the family was joint and Rs. 22,452-7-6 was spent by him after separation. It is obvious then that the family was separate and it is clear that separation took place with effect from 1965. The statement of account submitted by Balmukund is to the same effect. The statement of account is as follows:

“Account of Babu Balmukund Lal and others relating to their personal expenses as also the expenses incurred in connection with (tonsure) and marriage ceremonies, etc., up to 24th Asin, 1975 Fs.

Expenses in connection with tonsure and marriage ceremonies when the family was joint.

Rs. a. p. The amount was debited to Babu Durga Prasad … 5,038 4 0 Rs. a. p. Muran expenses … … … 1,529 2 9 Rs. a. p. Sigasan Bibi … 131 1 6 Balgobind Bibi … 256 9 0 Balmukund Babu … 401 3 9 Thakur Babu … 592 6 0 Parmeswar Babu … 147 14 0 Marriage expenses … … … 3,609 1 3 Sigasan Bibi … 1,428 2 0 Balgobind Bibi … 2,080 15 3 On account of personal expenses from 1965 Sambat to 24th Asin, Sambat 1975 … … … … 15,061 1 6 Expenses on account of marriage after separation … 13,395 3 9 Rs. a. p. Balmakund Babu … 6,041 12 6 Thakur Babu … 4,010 0 0 Parmeshwar Babu … 3,343 7 3 Set off on account of set off allowed to Ramdhani Chawdhuri: Expenses in connection with suits … … … 9,535 12 3 43,030 5 6 While (the family was) joint …5,038 4 0 After separation … … … 37,992 1 6

We find from Exhibit 2 that the expenses incurred on behalf of Balmukund and his branch of the family when the family was joint was Rs. 5,038-4-0, and it would appear that the whole of this was debited to, Babu Durga Prasad who, though dead, stood as the symbol of the unity of the joint family. We also find that after separation Rs. 37,992-1-6 was spent on his behalf; and it is obvious that the separation according to him was a separation which became operative from 1965 Sambat as his own statement shows, for he makes a clear distinction in his statement as to the expenses incurred before 1965 and those incurred after 1965, and he shows that all expenses incurred on his behalf before 1965 were debited to Durga Prasad whereas all expenses incurred on his behalf after 1965 were debited to him. It is not necessary to deal with the other two statements of accounts, one furnished on behalf of Jagannath and the other on behalf of Baijnath; but if a reference be made to them, it will be found that 1965 is the date put down in both the statements as the year from which the parties became separate.

I now return to the evidence of Mr. Saiyeeduddin. It was put to him in cross-examination that he stated to Jagannath's mother

“that there could not be any accounting in a joint family.”

The question was obviously framed so as to extract from the witness an admission that the family was still joint, for it is well known that there is no question of adjustment of account amongst members of a joint family, for the simplest of reasons that so long as the family is joint no individual member has a separate account of his own. The answer of the witness to this question was:

“It is a downright lie.”

In further cross-examination, he said that he asked the parties to state their claims in writing. Later he was recalled on the petition of the plaintiffs. He then stated as follows:

“I was to adjust the account on the basis of special shares of the pattidars. Each of the 4 pattidars had 4 annas share. Nand Kumar and Balmukund told me that each of the pattidars had 4-as. share Jagannath and Baij Nath's mother asked me to adjust the accounts of their sons' shares. The feeling between the 4 pattidars was neither cordial nor could be called bitter.”

In cross-examination he said that Nand Kumar and Balmukund told him that each of them had 4 annas share.

“As a lawyer of their family I know that each of the 4 pattidars was entitled to 4-as. share.”

The importance of the evidence of this witness cannot be overestimated. As a lawyer of repute he knew the distinction between “having a definite share” and “being entitled to a share.” He was asked to adjust the accounts on the basis that each of the 4 pattidars had 4-annas share. Now there could be no accounts to adjust if they were not already separate; and, as I have already shown from the statement of accounts filed by each of the parties before him, the separation took place in 1964; and so far as the accounts are concerned, it became operative from the beginning of 1965. Now this disruption of the joint family in 1964 was immediately followed by a different mode being adopted as to the keeping of the accounts. The statement of claim filed by Nand Kumar gives a clue to what took place in regard to the mode of keeping accounts. Paragraph 7 of his statement of claim is important from this point of view and it should be set out in full. It runs as follows:

“The personal expenses of individual (members) have been debited (to their account) from 1964 Sambat as will be apparent from the account sheet that has been prepared. The expenses incurred previously to that were debited to the ijmali (account) to which no objection is put forward.”

We have unfortunately not the accounts prior to 1964 before us; but it is obvious from what I have just quoted from the statement of Nand Kumar that, at that period, the members of the family had no separate accounts of their own and therefore, whatever expenses were incurred on behalf of any member of the joint family, were debited to Durga Prasad who, as I have already said, stood as the symbol of the unity of the joint family. But in the accounts before us there is one account in the name of Balmukund and his branch of the family, one in the name of Nand Kumar, one in the name of Baijnath and one in the name of Balmukund, and there is a fifth account which contains entries as to the expenses incurred on behalf of all the members.

Balmukund was cross-examined as to what took place before Mr. Saiyeeduddin. His evidence on this point is as follows:

“Nand Kumar Lal and I never asked M. Saiyeeduddin, Vakil, to adjust accounts. He went to our house several times * * * I never gave any written claim to Mr. Saiyeeduddin. I do not know Urdu. None of them Exhibit 11(a), 11(b) and 11(c) was filed by me before him.”

His statement of claim is Exhibit 11(a). It is obvious that this witness was lying, and deliberately lying, to save himself from an unpleasant situation. It would have been of advantage to us to have the accounts prior to 1964 before us; but though strenuous efforts were made on behalf of the plaintiffs to compel the defendants to produce all the accounts, they failed in their attempt so far as the accounts prior to 1964 are concerned.

The record-of-rights was finally published on the 2nd October, 1909, and the entries undoubtedly support the case of the plaintiffs that the parties were in separate possession of specific shares in the family properties. It has been held that entries in the record-of-rights containing specification of shares are not very important in deciding the question whether the family was joint or separate at the date, of the publication of the record-of-rights. I do not therefore rely upon these entries; but there is another transaction connected with the record-of-rights which is important and upon which the plaintiffs in my opinion are entitled to rely. Now there was a conflict between the entries in the record-of-rights and the entries in the land registration record. Having regard to this conflict, the parties were called upon to submit an explanation to the Special Land Registration Officer. In response to the notice served upon them the parties filed a statement of shares in the Collectorate. This statement of shares, referred to as hissewari, Exhibit 10, is, in my opinion, very important on the question which I am investigating. Serial no. 1 refers to the claim of Nand Kumar and it shows that Nand Kumar claimed 13 ganda 8 bowri share in a particular mauza. This was signed by Nand Kumar in token of the claim made by him. Serial no. 2 refers to the claim of Brij Mohan Lal and it shows that he had the same share in the same mauza and this was signed by Brij Mohan. Serial no. 3 refers to the claim of Hanuman Prasad; and Serial no. 4 refers to the claim of Balmukund, Thakur Prasad and Nunu Lal. Now this document stands on a different footing from the entries in the record-of-rights. It contains assertions by each member of the family as to the possession of a specific share in the properties; and, in my opinion, constitutes important evidence on the question whether the parties were joint or separate. In my view there is no doubt whatever that the parties separated in 1964 and all the moveables were at that time divided between the parties. Upon such separation they adopted another mode of keeping accounts. In 1918 there were disputes between the parties; and these, disputes were referred to the arbitration of Mr. Saiyeeduddin, and Mr. Saiyeeduddin was asked, not only to adjust the accounts as between them, but to partition the properties between them. The evidence leaves no doubt in these circumstances that at the date of the reference to Mr. Saiyeeduddin the parties were already separate and each of them had a separate account of his own.

Now even if I am wrong in this view, there can be no doubt that the submission to the arbitration itself operated as a disruption of the joint status involving the conversion of a joint tenancy into a tenancy in common. For this purpose, it is important to see what the claims of the, parties were before the, arbitrator. I must return to the statement of the claim put forward on behalf of the parties. Now Nand Kumar in his statement of claim definitely asked the arbitrator, not only to adjust the account as between them from 1965 but also to partition all the properties. Paragraph 9 of his statement of claim runs as follows:

“The house may be partitioned because all the four parties have got difficulties of accommodation.”

Paragraph 14 asks the commissioner to partition

“all those things that are joint.”

It is obvious to my mind that this statement of claim must be regarded plaint in a partition suit or a reference to arbitration asking the arbitrator to actually partition the properties by metes and bounds. The rule of law applicable to cases of separation from the joint undivided family was laid down by the Privy Council in the following terms in Suraj Narain v. Iqbal Narain. “What may amount to a separation, or what conduct on the part of some of the members may lead to separation of a joint undivided Hindu family, and convert a joint tenancy into a tenancy in common, must depend on the facts of each case. A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation but to have that effect the intention must be unequivocal and clearly expressed.” In Girja Bai v. Sadashiv Dhundiraj their Lordships of the Judicial Committee reviewed the whole position in an elaborate judgment. The facts of that case were as follows: One Harihar instituted a suit for partition of joint undivided properties. He died during the pendency of the suit and the question was raised as to whether at the time of his death he was separate from the joint family. His widow Girja Bai applied to be substituted in the record in his place. Her application was resisted on the ground that Harihar was a member of the joint family and that whatever right he possessed had passed by survivorship to the defendants to the exclusion of the widow. The Court of first instance rejected the contention of the defendants and allowed Girja Bai to be substituted in the place of her husband. The Judicial Commissioner's Court took a different view and rejected her claim. That Court took the view that no member of a joint undivided family under the law of Mitakshara can separate himself from the joint family or ever the status so far as he himself is concerned, without the consent of the others, or without an effective decree of the Court. On appeal to the Judicial Committee of the Privy Council the decision of the Judicial Commissioner was set aside. Now before the institution of the suit Harihar had served a notice upon the other coparceners demanding partition; and their Lordships took the view that nothing could be more unequivocal or more clearly expressed than the conduct of Harihar in indicating his intention to separate himself and enjoy his share in severalty by the notice of the 1st October 1908 coupled with suit; and they held that those acts amounted to a separation with all its legal consequences. Separation, according to their Lordships, was a matter of individual volition and did not depend on the concurrence of all the members of the family. In Kawal Nain v. Budh Singh it was held by the Privy Council that the institution of a suit for partition by one of the members of a Hindu joint family governed by the Mitakshara law amounted to an unequivocal expression of intention for separation, and effected his separation from the joint family; and that it was immaterial in such a case whether the co-sharers assented. The tracts of this case were as follows: One Prabhu Lal in 1890 brought a suit against his father for partition of the property belonging to the joint family. That suit was dismissed on the 19th July, 1890, on a technical point. On the 28th August, 1890, Prabhu Lal executed a mortgage deed in favour of the plaintiffs. It was this mortgage which was sought to be enforced in the suit which was ultimately carried to the Privy Council. The suit was contested on the ground that Prabhu Lal was a member of a joint and undivided family and was therefore incompetent to alienate his share of the family property. It was conceded that a suit for partition had in fact been instituted by Prahhu Lal against his father, but it was contended that as that suit was dismissed, it could not be said that there was a disruption of the joint status involving a conversion of the joint tenancy into a tenancy in common. Lord Haldane delivering the judgment of the Board said as follows: “By his plaint he had claimed a fifth share of the family property, and their Lordships entertain no doubt that the claim amounted to an intimation to the defendants, his co-sharers, of the unequivocal desire of the plaintiff for separation from the joint family. If this be so, the judgment of the Judicial Committee in the recent case of Girja Bai v. Sadashiv Dhundhiraj renders it beyond question that the commencement of this suit for partition effected a separation from the joint family. It is immaterial, in such a case, whether the co-sharers assent. A decree may be necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains a consequential judgment or not.” In dealing with the argument that the dismissal of the suit in 1890 left Prabhu Lal where he was before the institution of the suit, Lord Haldane said: “It has been argued that the suit for partition, commenced by the plaint of 1890 was dismissed and that the plaint was therefore of no effect. Their Lordships cannot assent to this argument………. It cannot be said that the plaint did not amount to such an expression of intention as to satisfy the conditions of the law as now settled.” In Syed Kasam v. Jorawar Singh it was held that the claim put forward before an arbitrator for partition of the joint family properties was sufficient to effect a severance in interest. Now all these cases in my opinion establish beyond doubt that whatever the position may have been before 1919 the statements of claim filed by all the parties to this litigation before the arbitrator in 1919 were sufficient in law to cause a disruption of the joint family.

The appellants strongly, rely upon the recent decision of the Judicial Committee in Palani Amman v. Muthuvenkatachala Moniagar. Sir John Edge in delivering the judgment of the Board said. “The fact that any member of a joint family has separated himself from his co-parceners may be proved by his suing for a partition of the joint family property,” but he added, “If the suit is decreed the date’ of his severance from the joint family will, if nothing else is proved, be treated as the date when the suit was instituted.” The decision certainly suggests that a severance may not follow in law unless the suit proceeds to a decree. His Lordship after referring to Kedar Nath v. Ratan Singh which, according to him, decided that a plaint in a partition suit would not result in a severance of the joint status if the suit is not proceeded with, proceeded to say as follows: “Their Lordships see no reason to depart from that view, although such a plaint, even if withdrawn, would, unless explained, afford evidence that an intention to separate had been entertained.” Whether the decision of Sir John Edge does involve some departure from the rule laid down in the cases to which I have referred is not for me to say. I am bound to point out that it will create difficulties in the Indian Courts. It may be, treating the question of separation as an individual volition, it is open to a party who files a suit for partition to withdraw that intention and elect to continue to be joint, as the Privy Council appears to have held in this case. Speaking with the utmost humility, I find it difficult to understand how it is possible for a person to withdraw an intention, when the expression of his intention has had important result on the status of the family. If it be the true view that separation is an act of individual volition, and that the expression of an unambiguous intention to separate operates as a separation, then, it seems to me that a change in the status of the family having taken place as the result of that expression of intention, and not merely a change affecting the person expressing that intention, there is no longer any room to withdraw the intention and to continue to live as a member of the joint family. It may be that as the result of re-union he may return to the family; but it must be remembered that though separation may take place by an act of individual volition, reunion requires the consent of all the parties. A person may be permitted to withdraw an expression of an unambiguous intention, if such an expression affected no other right save his own; but it is difficult to understand on what principle such a person can be allowed to withdraw the expression of an intention which affects not only his rights but also the rights of other persons. If this were the right view, it must follow that, not only separation, but reunion can be brought about by an act of individual volition. But, fortunately for me, it is not necessary for me to come to a conclusion on this point, for there is no case of the withdrawal of the claim here. All that we know from the evidence of Mr. Saiyeeduddin is that he could not adjust the accounts for want of time. It is therefore impossible to say that the parties at any time withdrew the expression of their intention to separate. In my judgment, the decision upon which the appellants rely has no application to the facts of this case.

Now, as against all these contentions the appellants rely upon Exhibit K, Exhibit G., Exhibit G—1, Exhibit G—2 and Exhibit H in support of their case that the family continued joint, long after the reference to arbitration. These are claims in suits instituted by the family for recovery of money due to them on account of advances made by them. Now these plaints were filed between the 31st October, 1918, and 3rd June, 1921, and there are statements in each of the plaints to the effect that

“the plaintiffs are the members of a joint family governed by the Mitakshara law and are joint in mess and business.”

It is contended on these plaints that it is obvious that the parties withdrew their intention to separate and continued as members of a joint family even after the reference to arbitration; but the question is: Did the parties realize that in point of law they must be deemed to have separated from each other from the date of reference to arbitration? Now on this point it is important to refer to the following passage from the evidence of Balmukund,

“I cannot say till what time Damodar Prasad, Kishun Prasad and Nand Kumar Lal were joint. There was one batwara among them in 1321 and another in 1324.

Q. Do you understand what is meant by a joint family?

A. I do not understand legal aspects of the joint family. As there was no batwara among us so I say that we were joint.

Q. Had there been batwara of some properties, can you say that you were still joint?

A. I have not thought over it and cannot say if we continued to be joint or not in that case.”

The question is one of law; and they may well have taken the view as Balmukund undoubtedly, does in his evidence in court, that unless there was actual partition by metes and bounds they were members of a joint family. I may also refer to the ekrarnama executed on the 20th of February, 1914, by the descendants of Jawahir Lal. The second paragraph of the ekrarnama recites that there was a previous partition of a portion of the joint family properties, viz., houses, shops, portion of lands, dwelling houses, etc., under deeds of private partition. The ekrarnama of the 20th February, 1914, was executed to effect partition of the properties that still remained joint. Now there can be no doubt whatever that, as a result of the previous partition which as a matter of fact had taken place in 1901, a disruption of the joint family took place involving the conversion of the joint tenancy into a tenancy in common; but this document nevertheless asserts as follows:—

“All of us, the executants, viz., the three parties, are the members of a joint Hindu family governed by the Mitakshara law”

and, after reciting the death of some of the members of the family, it recites that

“the executants by right of survivorship are still joint in possession and occupation of the entire joint property.”

Now it is obvious that these recitals are wrong in point of law although it may be that they considered that they were members of a joint family. In the same way the parties when filing the plaints upon which reliance is placed by the appellants may have considered that, since there had not been a partition of the family properties by metes and bounds, they were members of a joint family; but in my view having regard to the proceedings before the arbitrator and especially having regard to the statements in the accounts submitted by the parties, there is no doubt whatever that the parties had separated from each other in 1964 and that in any case the arbitration proceedings themselves operated as a disruption of the joint family.

I have omitted to consider another point which was made by the respondents in support of their case as to separation. They rely upon a will alleged to have been executed by Nand Kumar before his death. The learned Subordinate Judge accepted the case of the respondents on this point and there is no doubt whatever that if the will was in fact executed by Nand Kumar Lal, then it completely establishes the case of the plaintiffs as to separation; but the signature cannot be identified with the admitted signature of Nand Kumar and the expert evidence has failed to establish that the thumb impression appearing in this document is the thumb impression of Nand Kumar. In these circumstances it would not be safe to rely upon the will; but in my opinion the rest of the evidence which I have considered is sufficient to establish the plaintiffs' case.

In my opinion the conclusion at which the learned Subordinate Judge has arrived is clearly right and I must dismiss this appeal with costs.

Allanson, J.:— I agree.

S.A.K

Appeal dismissed.