Sheo Narayan, a Hindu governed by the Mithila School of Law, died many years ago. He had four sons two of whom died without issue. The other two sons, Bhup Narayan and Sarup Narayan, separated after their father's death and each obtained a half share of the family property consisting of, amongst other properties, an eight annas share of an estate (No. 2298) known as Bishnupursad alias Bagnirpur, another entire estate (No. 2338) known as Barulpur, an eight annas of a third (No. 14056) known as Bishnupur Balabhuddar and the same share of a fourth estate (No. 2831) known as Bikrampur. The shares, however, of Sheo Narayan in the last two estates, i.e, Bishnupur Balabhuddar and Bikrampur had been assigned to Gandarp Sahi and others by Sheo Narayan himself by a deed of conditional sale or by balwafa in the year 1820 with a stipulation for redemption in five years. Sheo Narayan died before he could exercise his right of redemption.

Sarup Narayan died before the year 1843; the precise date does not appear from the record. He had two wives; by the first he had a son Sukhan Lal and by the second he had four sons, Jaipal Narayan, Jogdeo Narayan, Basdeo Narayan and Baldeo Narayan. Basdeo Narayan died in the year 1846-7 childless leaving a widow Lakho Koer. Next died Jaipal Narayan in the year 1849 leaving him surviving a widow and a minor son Bishnu Doyal. Sukhan Lal died in the year 1863 leaving three sons, Raj Narayan, Rudra Narayan and Saligram Narayan. Raj Narayan died childless shortly after his father's death in the year 1864, and Jogdeo Narayan died in the year 1868 leaving a widow Bechan Koer, and in the following year Bishnu Doyal died without leaving any issue or widow him surviving. Lakho Koer and Bechan Koer died, it is said, in the year 1883.

Then Sukhan Lal died in the year 1863, his sons Raj Narayan and Rudra Narayan Were adults and Saligram Narayan was an infant. Rudra Narayan had, however, left the family-house and was living at his father-in-law's and took very little interest in the family property of which much was not left and what little was left was burdened with Sukhan Lal's debts. He died in the year 1801 leaving a son Nathuni Persad who died childless soon after his father's death.

Saligram Narayan is the Defendant 2nd party in the present suit and the Plaintiffs are his sons. The second Plaintiff is still a minor.

Baldeo Narayan, the youngest of the sons of Sarup Narayan, died on the 24th January 1896, and his three sons are the Defendants 1st party in the suit.

On the death of Jogdeo Narayan in 1868, Baldeo became the eldest male member of Sarup Narayan's branch of the family and he was undoubtedly the recognised head until his death. Whether the sons of Sarup Narayan had separated or not the position of Baldeo Narayan could not be ignored by the female members and the junior male members of Sarup Narayan's branch. He kept control over them and his death was the signal for litigation in the family. Saligram Narayan, his wife and children were admittedly living in the family dwelling-house at Bagnirpur though, it is said, the rooms they were occupying belonged to and were repaired from time to time by Baldeo Narayan with his own money. There can also be no doubt that Baldeo Narayan, though he was residing generally at Mozufferpur with his wife and children and was thus practically separate in mess from Saligram Narayan, was materially assisting the latter in the maintenance of his family. The story that Saligram Narayan lived entirely by begging alms from strangers is too absurd to be believed. The pecuniary relations and pecuniary help to Saligram Narayan ceased in 1896 with Baldeo Narayan's death.

On the 22nd September 1899, Saligram Narayan instituted in the Court of the Second Subordinate Judge of Mozufferpur a suit against the present Defendants (1st party), the sons of Baldeo Narayan, for partition and possession of a half share of all the properties which at one time formed part of Sarup Narayan's estate but which, at the date of suit, were in the possession of the Defendant. The allegations made by Saligram Narayan were that Sarup Narayan's sons had never separated, that they and their sons and grandsons were always joint as contemplated by Hindu law, that since Jogdeo Narayan's death, Baldeo Narayan had been the managing member or karta of the joint undivided family and that the two branches, the Plaintiffs and the Defendants were each entitled to a half share on partition. The allegations made in the plaint and the geneological table attached to it, showing that the Plaintiff had then two sons living, indicate that the Plaintiff demanded a half share as representative of his branch of the family. The half share claimed included the shares of his sons. The Defendants denied the averments in the plaint and claimed the properties in their entirety as their father's self-acquired and inherited properties, alleging a separation of the sons of Sarup Narayan shortly after his death. The friends of the parties intervened; good sense prevailed; and the suit was amicably settled out of Court. A petition of compromise was put in on the 14th November 1900. The Plaintiff was allowed possession of four villages in Bishnupur Balabhuddar, and one village in Bishnupursad alias Bagnirpur with the zerait lands in them as also the zerait lands in Bagnirpur itself, and Bikrampur, and the land occupied as homestead with the rooms in his occupation in Bagnirpur. A decree was passed in terms of the petition of compromise.

The present Plaintiffs, the sons of Saligram Narayan, were not satisfied with the consent decree and they instituted the present suit on the 13th November 1903, evidently with the pecuniary help of one Palat Narayan Singh who is maintaining the litigation. The plaint contains substantially the same allegations as those in the plaint in the suit of Saligram Narayan, and the Defendants in their written statement have denied the allegations in the plaint in the same way as they did before. They have also set up the consent decree passed in Saligram Narayan's suit as a bar in law to the suit of his sons.

The questions of fact involved in the suit are difficult to answer, chiefly on account of the complexity and the apparently conflicting nature of the documentary evidence on the record. The oral evidence is also highly conflicting. Some of the documents would lead us to infer that the narrative of the state of the family, as given by the witnesses of the Plaintiff, specially, Rai Barma Dat, a man respectable to all appearance, is correct and that the descendants of Sarup Narayan had never separated before the date of the consent decree in Saligram Narayan's suit; while some of the other documents support the case of the Defendants and lend considerable weight to the oral evidence adduced on their behalf. The lower Court, however, has carefully analysed both the oral and documentary evidence on the record and, as regards some of the important facts found by it, no case has been made out for a contrary opinion.

It would seem that a separation had taken place between the sons of the two wives of Sarup Narayan before they executed the zurpeahgi pottah of the 7th Aghran 1250 F.S (1842). This pottah was executed evidently within a few years of the death of Sarup Narayan and we find Sukhan Lal executing the document for himself only, while Jaipal Narayan, as the eldest son by the second wife, acted for himself and his minor uterine brothers. If the family had then been joint, Sukhan Lal would have represented his minor half-brothers. This conduct of the parties is consistent only with the theory of separation and reunion amongst Jagdeo and his uterine brothers. Such a state of things is quite natural. The next document, however, throws considerable doubt on the hypothesis of an earlier separation and re-union of some of the members of the family. On the 1st October 1853, Sukhan Lal, Jagdeo Narayan and Baldeo Narayan, executed along with the members of Bhup Narayan's branch of the family a deed of sale of certain shares for the family properties including Bishnupur Balabuddar. Sukhan Lal, Jagdeo Narayan and Baldeo Narayan sold 1 anna and 10 gundas describing the share of each to be 10 gundas. They also said that they were the heirs of Basdeo Narayan, thus ignoring the rights of Lakho Koer, widow of Basdeo Narayan. If separation had taken place, Lakho Koer's right by inheritance ought not to have been ignored. If Sukhan Lal had separated, and there had been re-union amongst Jagdeo and his uterine brothers, Sukhan Lal's share would have been 8 gundas only. If again, the family, had been joint without a previous separation the shares of each could not have been specified and each would not have received a proportionate share of the purchase money as mentioned in the deed. Neither could the share of Bishnu Doyal—the then minor son of Jaipal Narayan—be kept separate nor could the shares of the other members be sold as defined shares separated from the share of Bishnu Doyal. The document discloses a state of the family inconsistent with either jointness or separation. It is consistent with the hypothesis of a previous ascertainment of shares of the co-parceners which, according to the decision in Appovier v. Ram Subba Aiyan(1), constitutes partition and a conspiracy not to recognise Lakho Koer's interest as an heiress of her husband. It would appear then Sukhan Lal was there, in 1853, not only the eldest and the most intelligent of the members of Sarup Narayan's branch of the family but he was an earning member, as Rai Barma Dat says, and he had things done in his own way. Lakho Koer was ignored and Sukhan's share was increased. The learned Counsel for the Appellants has laid great stress on this document as supporting a case of continued jointness, but we think it has no such effect.

On the 2nd January 1855, a four annas share of Bishnupershad was sold in execution of a decree against Sukhan Lal and others and was purchased by Abdul Ali and Abdul Aziz. On the 3rd September 1857 the auction-purchasers sold to Raj Narayan, son of Sukhan Lal, a two annas out of the four annas share purchased by them. This was evidently a purchase by Sukhan Lal in the name of his eldest son, and, if the family had separated before, it could not be a purchase by Sukhan Lal for himself and his co-parceners. The case set up by the Defendant is that Raj Narayan was a benamdar of Baldeo Narayan and not of his father Sukhan Lai. Oral evidence has been adduced to show that Baldeo Narayan paid the purchase money but the Lower Court disbelieved such evidence and discarded the story of purchase by Baldeo Narayan and we agree with that Court. The purchase was evidently made by Sukhan Lal himself and as a separated co-parcener. He was earning money independently of the family property and got back from the auction-purchasers a part of the family estate, but having debts he had recourse to a benami transaction. It is alleged that this share of two annas of Bishnupershad passed to Saligram Narayan by virtue of a deed of gift made by Raj Narayan and such a gift was set up as early as 1864 in a suit instituted by Bishnu Doyal in, that year. In that suit Bishnu Doyal had put forth claim to a 16 gundas share of Bishnupershad on the allegation that his father Jaipal Narayan and his uncle Basdeo Narayan had re-united after separation from their brothers. The Courts, however, held that the co-parceners, sons of Sarup Narayan, had always been joint and that the story of separation was false. If the judgments had been inter partes, it would have been difficult to avoid the conclusion that the sons of Sarup Narayan had continued to be joint up to at least the year 1863, but there are reasons to suppose that Bishnu Doyal and his uncles and cousins were acting in concert to defeat the purchasers, the principal Defendants in that case. We cannot, at all events, place much reliance on the judgments in the suit of 1864 and hold therefrom that the family had continued to be joint. This litigation was terminated by the final judgment of this Court pronounced on the 1st May 1867 and Bishnu Doyal died two years later. Jugdeo Narayan also died in 1868 and the subsequent documents indicate a different state of the family.

A separation of the family was alleged in the suit of 1864 and, notwithstanding the adverse judgments of the Courts, the conduct of the parties during these and subsequent years indicates unmistakeably a condition of separation. On the 13th December 1864 Rudra Narayan and Mukund Kuar, as mother and guardian of Saligram Narayan, took out a certificate to collect the debts due to the estate of Sukhan Lal—a fact indicating separation between Sukhan Lal's sons. On the 22nd January 1865 Bishnu Doyal gave a lease of his ½ anna share of Bishnupur Balbhuddar to Abdul Ali as if it were an ascertained share. On the 1st January 1869 the members of all the branches of the family including Lakho Koer and Bichan Koer executed an instrument of sale of the equity of redemption which the family even then possessed in Bishnupur Balbhuddar and Bikrampur properties conveyed in 1820 by the instrument of conditional sale executed by Sheo Narayan. The purchaser was Baldeo Narayan and the consideration money was apportioned in the deed according to the different shares which would have come to the vendors if the family had divided a long time and certainly before the death of Baldeo Narayan. There can be no question that the deed was executed, though it is doubtful whether any consideration actually passed from the purchaser to the vendors. There might be some ulterior object in the execution of a formal instrument of sale of the equity of redemption, but the deed affords unmistakeable indication of a previous division of Sarup Narayan's branch. Baldeo Narayan was then the eldest and the earning member, his brothers having all died before 1869. He had undoubtedly great influence over the junior male members and female members of all the branches of Sheo Narayan's family, but that is no reason why we should assume that, the state of things disclosed by the deed was contrary to the true state and contrary to what would be the reasonable inference from the previous conduct of the parties.

Notwithstanding the apparent occasional inconsistencies of conduct which must be ascribed to human weakness and aberration, the main thread is visible throughout showing a state of separation of Sarup Narayan's sons and grandsons from a period shortly after his death or at least from before 1842. It may also be safely asserted that there was no subsequent re-union amongst all the co-parceners. The co-parceners became to all intents and purposes separated with ascertained shares, and if they or some of them lived and messed together in the same way as the members of a family governed by the Bengal School may be members of a joint family with ascertained shares, they ceased to be a joint family with rights of survivorship. With the advance of time there has been a tendency, specially in families in which some of the members are capable of acquiring and do acquire money independently of the ancestral estate, to sever the strict joint family or archaic patriarchal system, and to bring Mitakshara families to the level of Bengal families. The fact of living together and eating together on the same floor with food taken from the same cook-room as deposed to by the witnesses of the Plaintiffs or even the superintendence and control by the eldest and the most intelligent of the members, cannot alone suffice to constitute either a joint or a re-united family as contemplated by Vijnaneswara and his followers, if there be satisfactory proof of previous ascertainment of the shares of individual members. As long as Sukhan Lal was alive he was the manager but with an ascertained share of each member. He was followed by Jagdeo Narayan for a few years and then came the management of Baldeo Narayan which lasted till September 1896. He, however, had his own ascertained share and he acquired property himself. He might have acted in a way that may be called fraudulent with respect to the shares, or property of the junior and dependent members. He might have been unscrupulous in his dealings and guilty of misappropriation. He undoubtedly took advantage of his position and of his residence at Mozaffurpore, but he behaved in such a way as to give no occasion for an open attack on him. After Bishnu Doyal's death Baldeo Narayan took out (as his heir) a certificate to collect debts, and, in the view we take of the facts, he was entitled to do so, but he was not entitled to get his name registered as proprietor of a 2 annas share of Bishnu Pershad which Sukhan Lal had purchased in Raj Narayan's name and which had passed without objection to Saligram Nirayan to the exclusion of Rudra Narayan. He also had not the right to appropriate the whole of the 10 gundas of Bikrampur which belonged to the family and which his sons now claim by right of adverse possession.

From the year 1870 commenced a course of conduct on the part of Baldeo Narayan which would indicate either that Saligram Narayan was joint with him or that he was trying to appropriate property which undoubtedly belonged to Saligram Narayan, though he stood in a fiduciary relation towards him. He, Baldeo Narayan, got his name registered in the Collectorate as proprietor of the properties—the subject-matter of the present suit, paid revenue in his own name, took kabuliyats from tenants, endowed a portion of land of Bishnupershad as debutter and got shares separated in the Collectorte as if he had been the sole proprietor. He entirely ignored Saligram Narayan's right to portions of such properties, whether he did so as the karta of a joint or re-united family does not appear. At all events, there is no allegation, far less evidence of re-union between Baldeo Narayan and Saligram Narayan. But still he was undoubtedly looked upon as the manager. It does not also appear that he ever openly and to the knowledge of Saligram Narayan set up an adverse title to property which belonged to Saligram Narayan. The evidence does not disclose facts which would induce us to hold that Baldeo Narayan intended to cheat his nephews, to act fraudulently, or to misappropriate property. There is no evidence of express adverse possession except such as may be inferred from the proceedings in Revenue offices and acceptance of kabuliyats and other acts consistent with the managership of ifamily property. Saligram Narayan was a man of weak intellect, perhaps of vicious habits also, and he and his wife and children were entirely dependent on Baldeo Narayan. They were living in the family dwelling house at Bagnirpur and were evidently quite ignorant of the acts of Baldeo Narayan done at Mozaffurpur.

In this state of affairs, we would be very reluctant to apply the rule of limitation based on adverse possession to the claim of the Plaintiffs to such parts of the properties in dispute as to which Saligram Narayan had a clear title. The lower Court has held that the right of the Plaintiffs to a two annas share of Bishnupershad is barred by limitation. We do not think it is so or that the possession of Baldeo Narayan was ever strictly adverse. The possession of Baldeo Narayan's sons was adverse but not that of their father. We might also have applied the rule of Hindu law—as to lost family property re-acquired by a member of it—to such properties as were re-acquired by Baldeo Narayan. It would, in such a case, be necessary to enquire whether the deed of the 1st January 1869 was genuine in the sense that consideration really passed to the vendors. Such enquiries, however, appear to us to be unnecessary, because we are of opinion that the consent decree in the suit of Saligram Narayan is binding on his sons. If they had succeeded in showing that the family was joint and that they with their father were entitled to a half share of the properties in dispute, we might be induced to consider this question of the validity of the consent decree on the grounds set forth in the plaint and attempted to be made out by evidence but they have failed to prove their main allegations of fact.

We have already shown that the suit of partition instituted by Saligram Narayan, the father of the Plaintiffs, was in substance a suit in his representative capacity. It was compromised and the consent decree is the most cogent evidence of a family arrangement settling disputed claims. No ground has been established for setting it aside. No attempt has been made to show that the compromise was unfair to the Plaintiffs assuming that the separation of the sons of Sarup Narayan was an accomplished fact. The only question is:— Are the Plaintiffs bound by the consent decree? It is true that the rule of res judicata, as enunciated in sec. 13 of the Code of Civil Procedure does not strictly apply to the present case, but there are other well-established principles of estoppel which apply. The constitution of a joint Hindu family consisting of the father and his sons is such that the father represents the sons without express written authority and is considered to be the accredited agent of the joint family. He may sue and be sued and may bind the family by the result of the litigation. In a family arrangement settling disputed right and liabilities, his action as representative of the family is binding on the dependent members. If the compromise of doubtful claims was bonâ fide entered into, the principle laid down in Stapilton v. Stapilton and often followed in India [Ram Nirunjun Singh v. Prayag Singh(3) and Rameshur Persad v. Lachmi Persad(4)] would apply, as if the sons who were represented by the father were parties to the transaction. Pitam Singh v. Ujagar Singh and Ujagor Singh v. Pitam Singh may be cited as affirming the rule applicable to the present case.

We are, therefore, of opinion that the decree made by the lower Court dismissing the suit is correct and we dismiss this appeal with costs.

S.C.S

Appeal dismissed.